by Rahul Sud

There has been a lot of outcry about the recent incident, where some Minsters from the Karnataka State Assembly were caught watching pornographic material on their mobile phones. From a legal standpoint, it gives us a very good opportunity to understand the offence of pornography as provided under the Information Technology Act, 2000 (“Act”).

The Act was enacted in the year 2000. The primary object of this Act was to provide legal recognition to electronic commerce (as provided in the Preamble).  The Act was based on UNCITRAL Model Law on E-Commerce and as such, dealing with the menace of cyber crime was never intended by the Act. The loopholes are highlighted when the provisions of Act are tested against real situations. However, certain provisions of the Act have stood the test of time and have been useful in dealing with various types of cyber crimes.

It is also pertinent to note that the Act was amended vide the Information Technology (Amendment) Act, 2008, which came into force on 27th October, 2009. New forms of crimes like, sending offensive emails and multimedia messages, child pornography, cyber terrorism, publishing sexually explicit materials in electronic form, video voyeurism, breach of confidentiality and leakage of data by intermediary, e-commerce frauds like cheating by personation (commonly known as phishing, identity theft), frauds on online auction sites, etc. were added to the Act, which was primarily enacted to regulate E-Commerce. 

Interestingly vide the amendment the punishment for publishing and transmitting obscene material by email, websites, SMS was reduced from 5 years to 3 years imprisonment. However, the ingredients for the offence of pornography under Section 67 of the Act were left untouched.

Section 67 of the Act provides for the offence of publishing obscene information in electronic form. However, this section has its genesis in Section 292 of the Indian Penal Code 1860, which relates to sale, etc., of obscene books, pamphlets in physical from.

Now if we analyse the act of the Ministers with the ingredients of pornography as provided under Section 67 of the Act, some interesting discussions surface.  

First we need to understand that unlike any other criminal section, the offence of pornography under the Act, does not contain men rea as an ingredient. This implies that an innocent act of publishing or transmitting would also be punishable under Section 67.  The lewd or licentious material can be in various electronic forms such as MMS, SMS, Text or a Video. It is common for many people to share obscene texts or SMS with their friends. So does it mean that they have committed the offence of pornography under Section 67 of the Act?  To answer this we need to further analyse the provisions of Section 67 of the Act.

This Section 67 further provides that material should be lascivious or appeals prurient interest or is likely to deprave or corrupt the person who would consume such pornographic material. This is a point of distinction between a generic offence and the offence of publishing obscene material under the Act. While judging the offence of publishing pornographic material under the Act, we need to judge it from the point of view of the victim, rather than the offender.

As we see from the news clipping, the obscene material in the phone was “published” by the Minister to his colleague in the Assembly, who in all probable circumstances would be a prudent person and would not get depraved by such clip in such a manner that he would pose a threat to the society. Had this clip been published to a juvenile or an orthodox pardanashi woman, then the circumstance would have been different and the offence would have been categorised as an offence of grave nature.

The actual publication to the general public was done by the news channel and the cameramen who captured this act. Adequate precautions should have been taken by the news channels while publishing such images. In case such images were blurred before broadcasting, no offence of pornography is committed either by the Minster or the news channels. However, in case the images were published without any sort of censorship, the Minister as well as the news channel (including the cameraman) is liable for a prosecution under the Act. We can refer to the famous case of Bazee.com, where the CEO of the company was arrested for providing a platform for the sale of CDs containing explicit material.

The reasoning for such prosecution could lie in the fact that, when the obscene material was published without any censorship, it could have been viewed by any person from the general public including minors, who would not have developed judgement to understand and rationalise such obscene material. And as discussed above, since men rea is not an essential ingredient of the offence of pornography, any accidental publication or transmission is also liable for prosecution under Section 67 of the Act.  

Based on the above discussion we shall now try to understand whether publishing or transmitting of obscene SMS / text or an MMS is an offence?

• For something to be "obscene" it must be shown that the average person, applying applicable community standards and viewing the material as a whole, would find it lascivious or prurient interest; or

• Its effect is such that it would deprave a person, who having regard to all the circumstances gets access to the published obscene material. 

Personal consumption of obscene / lascivious is not an offence under Section 67. Publication/ transmission of the obscene/lascivious material is an offense. However, what is obscene / lascivious is to be judged from the applicable community standards.

In the present case the publication of the lascivious material was done by the Minister to his colleague, which act is liable of prosecution under the Section 67. However, assuming that the clip was consumed only his colleague, the gravity of such offence would be less. 

Therefore, in my view Section 67 of the Act has been meticulously drafted and it rightly aims at regulating social behaviour of a person. However, when sensationalised, we probably overlook the real intent behind such legislation.

Rahul Sud is a Senior Associcate at SNG Partners, Delhi.

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