PROJECT REPORT ON

OFFENCES PERTAINING
TO OBSCENITY UNDER
INFORMATION
TECHNOLOGY ACT
INFORMATION TECHNOLOGY ACT
AND
RIGHT TO INFORMATION ACT
LLB (TYC)
SEMESTER 3

Submitted to: MS. AISHWARYA JAGGA

PANJAB UNIVERSITY, CHANDIGARH

SUBMITTED BY:
NAME => AMIT SONIK
ROLL NUMBER => 23 / 21

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 ACKNOWLEDGEMENT

This work seeks to explain the offences pertaining to obscenity under the Information
Technology Act, 2000 along with associated case laws and concepts.

The work of this assignment could not have been completed without the esteemed guidance
and support of Ms. Aishwarya Jagga, who has been constantly guiding us throughout our study
of Information Technology laws and associated concepts.

I would also like to take this opportunity to thank my fellow classmates, whose excellent inputs
and discussions helped me a lot in framing my points.

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 INDEX

S. No. TITLE PAGE

NUMBER
1 INTRODUCTION – WHAT IS 4
“OBSCENITY”?
2 PUBLISHING OR TRANSMITTING 5
OBSCENE MATERIAL IN ELECTRONIC
FORM
3 PUBLISHING OR TRANSMITTING OF 7
MATERIAL CONTAING SEXUALLY
EXPLICIT ACT IN ELECTRONIC FORM
4 PUBLISHING OR TRANSMITTING OF 9
MATERIAL DEPICTING CHILDREN IN
SEXUALLY EXPLICIT ACT IN
ELECTRONIC FORM
5 CONCLUSION 13
6 BIBLIOGRAPHY 14

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 INTRODUCTION – WHAT IS “OBSCENITY”?

Before we venture to define and work on the offences pertaining to obscenity under the
Information Technology Act, let us first understand what “OBSCENITY” itself means.

Section 292(1) of the Indian Penal Code states that “a book, pamphlet, paper, writing,
drawing, painting, representation, figure or any other object, shall be deemed to be obscene
if it is lascivious or appeals to the prurient interest or if its effect, or (where it comprises two
or more distinct items) the effect of any one of its items, is, if taken as a whole, such as to
tend to deprave and corrupt persons who are likely, having regard to all relevant
circumstances, to read, see or hear the matter contained or embodied in it.”

In Ranjit D. Udeshi v. State of Maharashtra1, the Hon’ble Supreme Court held that “The
word "obscene" in section 292 IPC is not limited to writings, pictures etc. intended to arouse
sexual desire. The test given by Cockburn C.J., in Queen v. Hicklin, to the effect that the
tendency of the matter charged as obscene must be to deprave and corrupt those, whose
minds are open to such immoral influences and into whose hands a publication of the sort
may fall, so far followed in India, is the right test.”

However, in the case of Aveek Sarkar v. State of West Bengal2, the Hicklin test was
rejected and it was replaced by the “community standard test”

It may be noted that no fixed standard can be laid down as to what is moral or obscene. The
concept of morality differs from place to place, from time to time and from culture to culture.

In R.Y. Prabhoo v. P.K. Kunte3, the Supreme Court explained that the ordinary dictionary
meaning of "decency" indicated that the action must be in conformity with the current
standards of behaviour or propriety, etc.

1 AIR 1965 SC 881

2 (2014) 4 SCC 257
3 AIR 1996 SC 1113

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 PUBLISHING OR TRANSMITTING OBSCENE MATERIAL
IN ELECTRONIC FORM

We now turn our attention to Section 67 of the Information Technology Act, 2000. This
section is contained in Chapter XI titled “offences”, and is reproduced hereunder:

67. Punishment for publishing or transmitting obscene material in electronic form.–

Whoever publishes or transmits or causes to be published or transmitted in the electronic
form, any material which is lascivious or appeals to the prurient interest or if its effect is
such as to tend to deprave and corrupt persons who are likely, having regard to all relevant
circumstances, to read, see or hear the matter contained or embodied in it, shall be punished
on first conviction with imprisonment of either description for a term which may extend to
three years and with fine which may extend to five lakh rupees and in the event of second or
subsequent conviction with imprisonment of either description for a term which may extend
to five years and also with fine which may extend to ten lakh rupees.

The ingredients of offence under the aforesaid section are:

• publication or transmission in the electronic form,

• any material lascivious or appeals to the prurient interest,
• tendency to deprave and corrupt persons,
• likely-audience,

• to read, see or hear the matter contained or embodied in electronic form

Further, to understand the meaning of the terms “publishes” or “transmits”, we turn to

Explanations given alongside Section 66E, which are given below:

• “transmit” means to electronically send a visual image with the intent that it be
viewed by a person or persons;

• “publishes” means reproduction in the printed or electronic form and making it

available for public;

Thus, as discussed above, publication or transmission in the electronic form includes

dissemination, storage and transmission of information or data in electronic form.

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The section advocates that the obscene material in electronic form' must be considered by itself
and separately to find out whether it is so gross and its obscenity so decided that it is likely to
deprave and corrupt those whose minds are open to influences of this sort and into whose hands
the obscene material in electronic form is likely to fall.

It should be noted, however, that the aforesaid section does not make knowledge of obscenity
an ingredient of the offence, similar to the case of Section 292(1) of the IPC. Accordingly, to
escape criminal charges, one has to prove his lack of knowledge of publication or transmission
of obscene information in electronic form. We would also submit here that mere possession,
browsing or surfing through obscene content is not an illegal activity.

We now proceed to discuss the “Bazee.com” case4, a landmark case with respect to Section
67. In this particular case, one Ravi Raj, a fourth year student of IIT Kharagpur uploaded an
MMS clip for sale on the website “bazee.com”. The concerned MMS clip contained obscene
and sexually explicit content related to certain school girls of Delhi. In order to avoid detection
by the filters installed by baazee.com, Ravi Raj included the clip under the category “Books
and Magazines” and sub-category ‘e-books’. Subsequently, the police registered an FIR, and
both Ravi Raj and the CEO of Bazee.com Avnish Bajaj were arrested. From the point of view
of our discussion vis-à-vis section 67 of the IT Act, the questions before the Delhi High Court
were whether prima facie the listing on the website baazee.com constituted and offence,
and whether the website caused the publishing of such obscene material?

The Court opined that prima facie it appears that the listing itself answered the definition of
obscenity since it contained words or writing that appealed "to the prurient interest" or if
taken as a whole was "such as to tend to deprave or corrupt person, who are likely to read, see
or hear the matter contained or embodied in it. The listing contained explicit words that left a
person in no doubt that what was sought to be sold was lascivious. Further, by not having
appropriate filters that could have detected the in the listing or the pornographic content of
what was being offered for sale, the website “ran a risk of having imputed to it the knowledge
that such an object was in fact obscene”.

4 Avnish Bajaj v. State (NCT) of Delhi, (2008) 105 DRJ 721

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 PUBLISHING OR TRANSMITTING OF MATERIAL
CONTAING SEXUALLY EXPLICIT ACT IN ELECTRONIC
FORM

We now move to Section 67A of the Information Technology Act, 2000, which has been
inserted by the Information Technology (Amendment) Act, 2008, and is reproduced
hereunder:

67A. Punishment for publishing or transmitting of material containing sexually explicit

act, etc., in electronic form.–Whoever publishes or transmits or causes to be published or
transmitted in the electronic form any material which contains sexually explicit act or
conduct shall be punished on first conviction with imprisonment of either description for a
term which may extend to five years and with fine which may extend to ten lakh rupees and in
the event of second or subsequent conviction with imprisonment of either description for a
term which may extend to seven years and also with fine which may extend to ten lakh rupees.

The ingredients of offence under the aforesaid section are:

• publication or transmission in the electronic form,

• any material containing sexually explicit act or conduct.

We have already discussed that publication or transmission in the electronic form includes
dissemination, storage and transmission of information or data in electronic form.

It is important to note here that the term “sexually explicit act or conduct” has been qualified
by the word “explicit”, meaning thereby that “mere obscene act or conduct” may NOT fall
under this section. For punishment under this section - "publication or transmission of sexually
explicit act or conduct” - is an essential ingredient. Hence the difference between section 67
and 67A is depends on the nature of obscene content.

We now take up the Prajwala case5, which led to a sincere attempt on the part of Judiciary to
bring on board the State, Intermediaries (Google, Microsoft, Facebook, WhatsApp), and
technical experts to tackle the menace of obscene images/rape videos/child sexual images on
the internet. In this case, concerns were raised that apart from the fact that the incidents of rape

5 Re, Suo Moto Writ Petition (Crl.) 3 of 2015

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and gang rape were being recorded, to make matters worse, they were being distributed through
whatsapp.

The State has the responsibility for cleaning up the cyber space and many important steps have
been taken in this direction. The setting up of prevention, detection and correction machinery,
in the form of Indian Cyber crime coordination centre, Cyber crime reporting portal and
Regional Cyber Crime coordination centres have shown earnestness of its intent. It has also
taken up steps to increase cyber vigilance through programmes such as “Cyber Crime
Volunteer Framework”, which has resulted in an increased participation of citizens towards a
hygienic cyber space. Many recent cases have shown the effectiveness of these initiatives, such
as Shri Venkataraman M Ambig S/O v The State Of Karnataka6, where the accused was
arrested when the Police received information from the National Cyber Crime Reporting Portal
(NCCRP) that he had uploaded pornographic material relating to a minor female child.

In furtherance of this initiative, recently the State has taken steps towards increased
responsibility of online portals for content hosted on their platforms, with particular emphasis
on intermediaries such as social media and OTT platforms. Hitherto regulated unsatisfactorily,
which led to an increase in incidents such as the present one, the State is now on a clear path
to tighten their responsibility. These regulatory efforts have been given a much needed impetus
by the Information Technology (Intermediary Guidelines and Digital Media Ethics Code)
Rules, 2021, which now provide for stricter diligence to be observed by various kinds of
intermediaries.

6 CRIMINAL PETITION NO.101582 OF 2022

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 PUBLISHING OR TRANSMITTING OF MATERIAL
DEPICTING CHILDREN IN SEXUALLY EXPLICIT ACT IN
ELECTRONIC FORM

Child obscenity is a major evil in our society. According to a study7 by the Ministry of Women
and Child Development, Government of India, nearly 53% of all Indian children (surveyed)
disclosed being sexually victimised in at least one way, with the nature of the offensive
behaviour ranging from sexual touching to rape. Further, the study revealed that most
perpetrators were known to their victims and both boys and girls faced exploitation in
equal measures.

Within the realm of cyber space, Section 67B has been enacted to tackle this issue. It has been
inserted by the Information Technology (Amendment) Act, 2008 and is reproduced
hereunder:

67B. Punishment for publishing or transmitting of material depicting children in sexually

explicit act, etc., in electronic form.–Whoever,–

(a) publishes or transmits or causes to be published or transmitted material in any electronic

form which depicts children engaged in sexually explicit act or conduct; or

(b) creates text or digital images, collects, seeks, browses, downloads, advertises, promotes,
exchanges or distributes material in any electronic form depicting children in obscene or
indecent or sexually explicit manner; or

(c) cultivates, entices or induces children to online relationship with one or more children for
and on sexually explicit act or in a manner that may offend a reasonable adult on the computer
resource; or

(d) facilitates abusing children online, or

(e) records in any electronic form own abuse or that of others pertaining to sexually explicit act
with children,

7 Available at http://wcd.nic.in

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shall be punished on first conviction with imprisonment of either description for a term which
may extend to five years and with fine which may extend to ten lakh rupees and in the event of
second or subsequent conviction with imprisonment of either description for a term which may
extend to seven years and also with fine which may extend to ten lakh rupees:

Provided that provisions of section 67, section 67A and this section does not extend to any
book, pamphlet, paper, writing, drawing, painting representation or figure in electronic form–

(i) the publication of which is proved to be justified as being for the public good on the ground
that such book, pamphlet, paper, writing, drawing, painting representation or figure is the
interest of science, literature, art or learning or other objects of general concern; or

(ii) which is kept or used for bona fide heritage or religious purposes.

Explanation–For the purposes of this section, ― “children” means a person who has not
completed the age of 18 years.

The aforesaid section criminalises all kinds of online child pornography. Clauses (a) and (e)
are generic in nature, while Clauses (b), (c) and (d) are specific.

The following points about the aforementioned clauses are worth nothing:

• Under clause (a), any instance of attempted publishing or transmitting (or attempted
receipt) of child pornography is also an offence.
• With reference to clause (b), the term “material” may also include "pseudo
photograph" means an image, whether made by computer graphics or otherwise
howsoever, which appears to be a photograph.
• Clause (c) takes into account all instances of online “grooming” of children for
sexually explicit purposes, which may involve cultivation, enticement or induction of
children to online relationship that may offend a reasonable adult using computer
resource. It is significant to note that the terms, like: “cultivating”, “enticing” and
“inducing” have not been defined. One may have to look into the facts and the
circumstances to draw any conclusion.
• Clause (d) may be used against the intermediaries, including cyber cafes for not
taking sufficient due care.
• Clause (e) takes into account recording own abuse or that of others pertaining to
sexually explicit act with children. Mere recording of sexually explicit act is enough

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 whether such a recorded text, images, audio or video is put into publication or
transmission - it is not an issue under this clause The term recording here means
'capturing' such an act on a recording device (or communication device) or media.

In the case of Kamlesh Vaswani v. Union of India8 the Supreme Court issued directions to
the govt. to order intermediaries to disable specific content where website operating child
pornography was sought to be restricted.

We now discuss the recent case of Fathima A.S. v. State of Kerala9. The petitioner, who filed
an anticipatory bail application under Section 438 of CrPC, was a mother who asked her two
minor children, aged 14 (boy) and 8 (girl) to paint on her naked body above the navel. The
children painted on her naked body. The petitioner recorded it as a video, uploading it on social
media with the heading "Body Art and Politics”. An FIR was then registered under sections
13, 14 and 15 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and
under section 67B (d) of the Information Technology Act, 2000. The petitioner submitted that
she is an activist and has been fighting her battle against body discrimination, and that children
should be given sex education while also need to be made aware of the body and body parts.
Accordingly, they would mature themselves to view the body and body parts as a different
medium altogether rather than seen it as a sexual tool alone. The petitioner contended that,
morality of the society and public outcry cannot be a reason and logic for instituting a crime
and prosecuting a person. The petition, however, was rejected, and in the observations of the
learned judge:

“I place myself in the position of the petitioner and from the view point of the viewers of
every age group in whose hands this video is reached by uploading the same by the petitioner.
After applying my judicial mind, I am not in a position to say that, there is no obscenity in
the video when it is uploaded in the social media.”

The Protection of Children from Sexual Offences Act, 2012 (POCSO Act) was passed to
consolidate all offences against children in a separate Code, and the POCSO Rules, 2020 have
further strengthened the parent act. Particularly, Rule 11 of the POCSO Rules, 2020 is worth
noting, which is titled “Reporting of pornographic material involving a child”, and which has

8 W.P. (C) No. 177 of 2013

9 Bail Appl. No. 2681 of 2020

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created onus on the intermediary especially to report the matter and hand over the
necessary details to the cybercrime portal of the Central Government. The said rule is
reproduced hereunder:

“11. Reporting of pornographic material involving a child.-

(1) Any person who has received any pornographic material involving a child or any
information regarding such pornographic material being stored, possessed, distributed,
circulated, transmitted, Salitated, propagated or displayed, or is likely to be distributed,
facilitated or transmitted in any manner shall report the contents to the SJPU or local police, or
as the case may be, cyber-crime portal (cybercrime.gov.in) and upon such receipt of the report,
the SJPU or local police or the cyber-crime portal take necessary action as per the directions
of the Government issued from time to time.

(2) In case the "person" as mentioned in sub-rule (1) is an "intermediary" as defined in clause
(w) of sub-section (1) of section 2 of the Information Technology Act, 2000, such person shall
in addition to reporting, as provided under sub-rule(1), also hand over the necessary material
including the source from which such material may have originated to the SJPU or local police,
or as the case may be, cyber-crime portal (cybercrime.gov.in) and upon such receipt of the said
material, the SJPU or local police or the cyber-crime portal take necessary action as per the
directions of the Government issued from time to time.

(3) The report shall include the details of the device in which such pornographic content was
noticed and the suspected device from which such content was received including the platform
on which the content was displayed.

(4) The Central Government and every State Government shall make all endeavours to create
widespread awareness about the procedures of making such reports from time to time.”

Thus, non- reporting may lead to prosecution and loss of immunity under section 79 of the
IT Act.

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 CONCLUSION
We have the offences relating to obscenity under the Information Technology Act, 2000 at
length, by first introducing the concept of obscenity, and then explaining the relevant
provisions, that is Sections 67, 67A and 67B.

In discussing these provisions, we saw how these are a part of a comprehensive cyber security
penal code within the Information Technology Act, 2000, and how they supplement the
provisions of the Indian Penal Code in the cyber space. A clear illustration is the equivalence
of Section 67 with Section 292 of the Indian Penal Code.

Child pornography is a menace and the way it is growing using information technology and
communication tools, the onus in the civil society to help curb this menace from taking
monstrous proportions. It is time that a concerted action should be taken to stop child abuse,
including all forms of child pornography. While important legislative steps have been taken, in
the form of section 67B of the IT Act, the POCSO Act and rules made there under, the regular
reporting of offences against children in the cyber space indicate that the intended results would
not be achieved without the cooperation of society as a whole. It is expected that the increased
awareness of late and participation of volunteers would be significant in this direction.

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 BIBLIOGRAPHY
Sharma, Vakul, Information Technology Law and Practice (Universal LexisNexis, New Delhi,
Seventh edn., 2021)

Information Technology Act, 1963 (No. 21 of 2000 dated 9th June, 2000)

Indian Penal Code, 1860 (No. 45 of 1860 dated 6th October, 1860)

Protection of Children from Sexual Offences Act, 2012 (No. 32 of 2012 dated 19th June, 2012)

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