The Intricate Difference Between Sections 67 and 67A of the IT Act, 2000

Introduction

Section 67 was incorporated into the Information Technology Act, 2000 in order to curb the spread of obscene content through online mediums. The problem arose when the Victorian conception of obscenity became the subject of debate, which led legal experts to scrutinize the meaning of obscenity. Section 67A, on the other hand, is lexically more objective than Section 67. It has been noticed that many people, including legal researchers, often tend to equate both sections. In this article, the difference between both sections of the IT Act will be explicitly stated in order to press home the truth of their separate identities.

Section 67

Section 67 of the Information Technology Act, which deals with punishment for publishing or transmitting obscene material in electronic form, reads as: “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…”¹

From a bare reading of the section, it might be construed that it is potent enough to deal with matters of obscenity. But the subjectivity of words such as ‘lascivious’, ‘prurient interest’ and ‘tend to deprave and corrupt’ must be taken into consideration. The loose language of this section makes it difficult to implement the section. As a result, various judgements have attempted to clarify as to what should be considered as obscene. In Regina v. Hicklin,² the Hicklin test was laid down wherein it was stipulated that the matter must have the tendency to deprave and corrupt those whose minds are open to such immoral influences. This statement failed to determine what kind of matter is capable of depraving or corrupting someone’s mind in the real sense.

Due to the vagueness of the Hicklin test, the Miller test was laid down in Miller v. California.³ The three-prong test aimed to answer three questions before declaring something as obscene: (a) Whether the average person, applying contemporary community standards, would find that the work taken as a whole appeals to ‘prurient interest’? (b) Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law? (c) Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value? In Ajay Goswami v. Union of India,⁴ the court held that the standards to be adopted for judging decency, the test should be that of an ordinary man of common sense and prudence and not of the ordinary and hyper-sensitive man. 

Therefore, the highly subjective debate around obscenity makes it difficult for the court to objectively determine what is obscene. What may be lascivious and what may appeal to the prurient interests of different individuals can vary significantly. Though the legislature and the courts have tried to put their own construction on these vague terms, it is still difficult to objectively define obscenity.

Section 67A

This section penalises the publication or transmission of material containing sexually explicit act in electronic form. The section states: “Whoever publishes or transmits or causes to be published or transmitted in the electronic form any material which contains sexually explicit act or conduct…”⁵ This language of this provision is very different from that of Section 67 as this section clearly mentions the phrase ‘sexually explicit act’. This phrase makes this section potent enough to outlaw pornographic content. Though the intent of Section 67 would have been similar, the objectivity of Section 67A actually serves the purpose.

The phrase ‘sexually explicit act’ means an act that portrays an act of sexual intercourse in an explicit manner leaving behind no subjectivity as to whether that act appeals to the prurient interest of the viewer or not. The difference between both sections can be understood by Justice Hidayatullah’s statement in Ranjit D. Udeshi v. State of Maharashtra⁶ wherein he said that obscenity differs from pornography in that the latter refers to writings, images, etc. that are meant to excite sexual desire, while the former may encompass writings, images, etc. that are not meant to but have the potential to do so. Both obviously violate morals and public decency, but pornography is an obscenity in a more extreme form.

This means that 67 can be applied in cases of basic nudity but in order to attract Section 67A, there ought to be an explicit sexual image or video and not merely suggestive innuendos. Though the difference is subtle it is real. Furthermore, the gravity of Section 67A can also be deciphered from the difference in punishment mentioned under both sections. An offence under section 67 leads to imprisonment for 3 years and a fine of rupees 5 lakh on the first conviction and on the second conviction, it may lead to 5 years of imprisonment and a fine of rupees 10 lakh. On the other hand, under section 67A, the punishment for a first time convict is 5 years imprisonment and fine of rupees 10 lakh and on a subsequent conviction, imprisonment for 7 years and a fine of rupees 10 lakh.

Conclusion

Though these two sections are often used in the same context, there is a significant difference between the two in terms of their applicability and scope. The loose language of Section 67 has made it convenient for lawyers to attract this provision in the most irrelevant situations, such as in cases of defamation.⁷ Therefore, this lexical analysis clearly brings out the difference between both sections, and one must not get confused by the prevalent interchangeability of the two provisions.