In 2015, India’s Supreme Court struck down the constitutional validity and legality of Section 66A of the Information Technology (IT) Act, which penalized sending offensive messages through communication service” and included information shared via a “computer resource or a communication device” known to be “false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will”.
The wide net cast by the section did not go unnoticed by India’s apex court which said, “Section 66A is cast so widely that virtually any opinion on any subject would be covered by it, as any serious opinion dissenting with the mores of the day would be caught within its net.”
However, a recent report published by Bombay-based research and advocacy organization on gender and digital rights Point of View suggests that Section 67 of India’s IT Act, which deals with criminalizing obscenity in the digital sphere, has been resurrected in the guise of the now unconstitutional 66A, and ends up curtailing voluntary sexual expression and the freedom of speech.
Graver Consequences for Digital Obscenity
Section 67 punishes the transmission of obscene material in electronic form – something which is prurient and likely to induce lascivious tendencies in the viewer or receipt of such information. It is a stringent provision, mandating higher punishment for obscenity in the digital sphere than in the offline world (which is covered under Section 292 of the Indian Penal Code.)
Section 292 mandates a jail term up to two years and a fine up to Rs 2,000 for a first-time conviction. Under Section 67, the jail term can be up to three years and the fine up to Rs 500,000 for the first time.
A subsequent conviction raises the maximum jail term to five years under both Sections —but the fine goes only up to Rs 5,000 under Section 292, and up to Rs 1 million in Section 67.
While exceptions for scientific, literary, artistic or religious purposes are allowed under Section 292, they are not allowed under Section 67 of IT Act.
What the Numbers Say
Point of View has culled and analysed data since 2002 from India’s National Crime Research Bureau’s (NCRB) records to put forth the point that Section 67 is being grossly misused, and is “the new Section 66A”. “From 2008 to 2015, the number of cases filed under Sec 67 grew steadily from 105 to 749, while those filed under Sec 66 grew from 138 to a whopping 6567,” the report states.
“Trawling through NCRB data allowed for a broader understanding of how Sec 67 has been used since its inception. Notably, the section has become a catch-all category, used as a garbage dump for offences that sometimes have little connection with ‘obscenity’. Despite the introduction of Section 66E into the IT Act in 2008, which regulates the capture, publication or transmission of “the image of a private area of any person without his or her consent, under circumstances violating the privacy of that person, it is Sec 67 that continues to be used in a case where there’s a toss-up between privacy and obscenity”, the report states.
The report notes with great consternation that where videos of gang-rape are being circulated over various electronic media, the primary harm- that is, the violation of privacy of the victim-complainant is being subsumed as the offence is booked for obscenity.
“Some consent violations that have not been legally recognized are treated as obscenity offences. Legally ‘invisible’ violations of consent, such as images morphed without consent and sexual images received without consent, have yet to receive legal recognition. These cases are currently filed under Sec 67 because there is no other place to file them. In a context where there are a huge number of morphing cases filed, and the receipt of non-consensual, unsolicited sexual images is as common as their production and distribution, the law needs to recognize these consent violations”, the report states.
Criminalizing political speech
An analysis of media reports from 2012-2016 shows that Section 67 is being used to seek criminalization of political speech. One instance is of a certain Ajay Hatewar who criticized the picture of the state of Maharashtra’s Chief Minister Devendra Fadnavis vacationing on a yacht with his wife and daughter while the state’s economy was in doldrums. Hatewar’s criticism on Twitter could possibly be deemed as “objectionable”, but he was booked for obscenity under Section 67. Bafflingly enough, the picture was posted on Twitter by a government organization’s handle.
Bishakha Datta, the lead researcher of the report, says that not only is this “mission creep, but also a gross misuse of Section 67.” Because Section 67 has such a low threshold, more and more people are being illegally booked under this catch-all provision.
Section 67 as a tool of Censorship
Couples who made intimate videos of themselves, and those videos which were leaked and circulated online without their consent , were also booked under the section. Moreover, since 2014, India’s crime recorders started profiling the makers of such videos as “sexual freaks” as one of the categories, without any legal substantiation.
The report recommends that the government takes serious note of the burgeoning number of prosecutions under Section 67 – the illegally-resurrected Section 66A which was used as a bully’s truncheon against free expression online.