Offences and Punishments under IT Act, 2000.
Section 67: Publishing or Transmitting Obscene Material in
Electronic Form
Any person who publishes or transmits or causes to be published or
transmitted any material in electronic form that meets the following
criteria is liable for punishment:
Lascivious: Material that is lewd or expresses a strong sexual
desire.
Appeals to Prurient Interest: Content that excites a morbid or
lustful interest in sex.
Depraves and Corrupts: Material that has the effect of
immoralising the minds of those likely to read, see, or hear it.
(Hicklin Test Standard)
Essentials of the Offence
To sustain a conviction under this section, the following elements must be
satisfied:
1. Electronic Medium: The material must be embodied in electronic
form (e.g., social media posts, WhatsApp messages, emails, or
website content).
2. Act of Publication or Transmission: The accused must have
either directly uploaded/sent the material or facilitated its
publication.
3. Nature of the Material: The content must be "obscene".
The Evolution of "Obscenity Tests"
1. The Hicklin Test: Derived from the English case Regina v. Hicklin
(1868). It asks: "Does the matter tend to deprave and corrupt those
whose minds are open to such immoral influences?" This is a strict
test because it judges the work based on isolated passages rather
than the work as a whole.
2. The Roth Test: Originating from the US case Roth v. United States.
It shifts the focus to whether the "average person, applying
contemporary community standards," would find the dominant
theme of the material appeals to prurient interests.
3. The Community Standard Test: Currently favoured by Indian
courts. It mandates that a work must be judged as a whole. It
suggests that obscenity should be measured against the current
moral standards of the community, which change over time (e.g.,
what was obscene in 1950 may not be in 2026).
Section 67A: Publishing or transmitting of material containing
Sexually Explicit Act, etc., in electronic form.
Section 67A deals with the punishment for transmission or publication of
any material containing sexually explicit acts in any electronic form.
It says any person convicted under this Section if for the first time, shall
be punished with imprisonment of either description for a term that may
extend to five years and with a fine that may extend to ten lakh rupees,
and if for the second time or any subsequent time, shall be punished with
imprisonment of either description for a term that may extend to seven
years and also with a fine that may extend to ten lakh rupees.
67B. Publishing or transmitting of material depicting children in
sexually explicit act, etc., in electronic form.
Whoever; publishes, transmits, or orders the publication or
transmission of any electronic content that shows minors acting in a
sexually explicit manner;
or produces text or digital pictures, gathers, looks for, peruses,
downloads, promotes, markets, trades, or disseminates content in
any electronic format that shows minors in a pornographic,
indecent, or sexually explicit way;
or encourages, entices, or coerces children to engage in sexually
explicit online relationships with one or more other children in a way
that might offend a reasonable adult using the computer resource;
or facilitates the online abuse of children;
or records, in any electronic form, any abuse that oneself or others
have committed in relation to sexually explicit online acts with
children;
Shall be punished with an imprisonment term of a maximum of 3 years for
the first conviction or with a fine of a maximum of 5 lakhs rupees and in
case of a second conviction or subsequent conviction, the offender shall
be punished with imprisonment of a term of maximum 5 years along with
a fine of maximum 10 lakh rupees.
Exceptions : The proviso to Section 67B exempts from punishment if it falls
under these two categories:
Justifiable reasons of Public Good & Religious & Heritage Purpose
Education & Learning: Textbooks or research papers.
Art & Literature: Recognized works of artistic merit.
Science: Medical or psychological studies.
General Concern: Any content published for a genuine reason that
benefits society.
Bona fide Religious Purposes: Traditional religious texts, rituals,
or depictions used in a genuine spiritual context.
Heritage Sites: Depictions found in ancient monuments, temples,
or historical carvings (e.g., traditional sculptures in heritage sites
like Khajuraho).
Landmark Case Laws
State of Tamil Nadu v. Suhas Katti (2004)
India’s first, historic cybercrime conviction under the Information
Technology Act, 2000, achieving a verdict in just seven months. The case
involved Suhas Katti harassing a woman with obscene, defamatory, and
annoying messages in a Yahoo! group. The court found him guilty,
imposing a 2-year rigorous imprisonment and fines under Section 67 of
the IT Act, along with Sections 469 and 509 of the Indian Penal Code.
Facts of the Case
A divorced woman (victim) who was a former classmate of the
accused.
Suhas Katti (accused) , a family friend who wanted to marry the
victim. After she rejected his proposal and married someone else,
he became resentful. Even after her divorce, she rejected him
again.
Infuriated by the rejection, Katti opened a fake email account in
the victim’s name and posted obscene, defamatory, and
annoying messages on various Yahoo! Messaging groups.
He included the victim’s phone number in these posts, falsely
suggesting she was soliciting sex. This led to the victim receiving
numerous harassing and obscene phone calls from strangers.
M.F Hussain v. Raj Kumar Pandey (2008)
M.F. Hussain was charged for his "Bharat Mata" painting displayed
online, which critics called obscene.
The Delhi High Court used the Community Standard Test. The court
held that nudity in art is not necessarily obscenity. It emphasized
that "obscenity" must be distinguished from "artistic expression,"
and the work must be judged through the eyes of an average,
reasonable person
Apoorva Arora v. State (NCT of Delhi) (2024)
Popularly known as the 'College Romance Web Series Case', the Supreme
Court quashed the orders of investigation and prosecution against the
makers of the web series 'College Romance' (TVF Media Labs Private Ltd.)
for production, transmission and online publication of obscene and
sexually explicit material under Section 67 and Section 67A of the I.T. Act.
Avnish Bajaj v. State (N.C.T.) of Delhi (2008) – The "[Link]"
Case
A student listed an obscene MMS clip for sale on the auction site
[Link]. The CEO, Avnish Bajaj, was arrested.
The court focused on Strict Liability. It held that while the seller was
liable, the Intermediary (the website) could not be held vicariously
liable for the content uploaded by a third party unless it was proven
that the company had specific knowledge of the obscenity.
This led to the 2008 Amendment of Section 79, granting "Safe
Harbor" protection to intermediaries who act with due diligence.
Sharat Babu Digumarti v. Govt. of NCT of Delhi (2017)
The Supreme Court delivered a crucial ruling on the conflict
between the IPC and the IT Act.
The Court held that if an offense involves an electronic record, the IT
Act (Section 67) is a special law and will prevail over the IPC
(Section 292). Once a person is charged or exonerated under
Section 67, they cannot be separately prosecuted under the IPC for
the same digital act.
Just Rights for Children Alliance vs. S. Harish (2024)
This 2024 judgment is considered a landmark because it significantly
broadened the interpretation of Section 67B to hold that mere possession,
storage, or viewing of Child Sexual Abuse Material (CSAM) referred to in
the judgment as Child Sexual Exploitative and Abuse Material (CSEAM) is a
punishable offence, even without proof of transmission or publication