The Criminalisation of Sexually Explicit Conversation: A Constitutional Perspective
The author of this blog is Manik Mahajan, LL.B 2nd Year Department
of Laws, Panjab University, Chandigarh.
Introduction
Internet and Information Technology has become an
indispensable part of the life of every human being in contemporary times. The
very existence of a human being is somewhat dependent on the internet as it has
become a preferred mode of communication, banking, news, shopping, education
and even contacting and interacting with the government. It has revolutionised
not only the life of a human being but has also been one of the factors for the
growth of the business. Report by the Internet And Mobile Association of India
(IAMAI) indicates that there were 451 million active internet users in India as
in 2019[1].
With such a large user base, India has the second-highest number of internet
users in the world after the Republic of China[2].
Most of the active internet users today are connected with
each other by means of social networking applications such as Facebook,
Instagram, WhatsApp and other social media platforms which serves as a medium
to connect with people all across the world. Social media platforms, besides being
used as a medium of sharing one's views and opinion, is also used for
perpetrating crimes and sending sexually explicit contents and images between
individuals and in groups which may pertain to oneself or may pertain to a
third party individual without that individual's consent. To control the
transmission of such information by electronic means, the legislature enacted
the Information Technology Act, 2000 which penalises the sending of obscene,
lascivious or sexually explicit content under Section 67, Section 67A and
Section 67B of the Act. These provisions of the Information Technology Act,
2000 are intended to control the publication of sexually explicit material in
electronic form.
Recently, the case of an Instagram group by the name of
'Bois Locker Room' came into light which sparked a controversy in the entire
nation. Screenshots of the conversation of Bois Locker Room group was
circulated on social media which revealed that the group was being used by its
members to share morphed and obscene images of girls and women and further for
commenting on those pictures[3]. The
question which has come up for consideration from this case and similar cases
is whether the criminalisation of sexually explicit conversation between
consenting adults through electronic means constitutionally valid?
The answer to the above question cannot be an absolute ‘yes’
or an absolute ‘no’ because of the complexity and the interdependence of the
fundamental rights that are involved. The provisions of the Information
Technology Act, 2000 makes the mere publication and transmission of obscene or
sexually explicit material an offence without taking into consideration the
consent of the originator or the addressee. Even if the sexually explicit
material is being transmitted between consenting individuals in a private
message or group, the actus reus and the mens rea to commit the offence is
established. At the outset, it is clarified that the question involved is that
of the criminalisation of sexually explicit conversation between two adults as
penalised by Section 67 and 67A which does not involve minors which means that
the vires of Section 67B is not questioned.
Article 14 and Sexually explicit
conversation
It is of pertinent interest to mention that sexually
explicit conversation between two consenting individuals or between the members
of a group in person is not considered as an offence under the Indian Penal
Code, 1860. Only if a person says something to a woman, without her consent,
which insults her modesty, he can be held liable under Section 509 of the
Indian Penal Code which provides for punishment for insulting the modesty of a
woman. Therefore, if a person says something to another with his consent in
person, it would not be an offence under the Indian Penal Code, 1860 but if the
same conversation is transmitted through electronic means, it would become an
offence under the Information Technology Act, 2000.
One may say that such classification is arbitrary as the
classification between two types of conversations does not have any reasonable
nexus to the object sought to be achieved[4]. Since the
object is to stop transmission of sexually explicit conversation, then
criminalisation of one more of communication and not of others does not seem to
be a reasonable classification and violates Article 14 of the Constitution.
However, to this one may advance an argument that there are inherent
differences between conversations taking place 'online' and conversation
happening between two individuals 'offline'. The former differs from the latter
in many respects few of which have been outlined below:
●
The reach of
the internet has no boundaries because of which the
originator can send obscene or lascivious content to any addressee without
being subject to geographical restraints.
●
Most of the social media platforms have the policy of end-to-end
encryption because of which the information shared through online means can
only be accessed by the originator or the addressee. There is no pre-censorship
on the content shared through online means.
●
The information shared by the originator in the form of images or
videos can be morphed by the addressee and can be transmitted to the third parties
without the consent of the originator of the information.
●
There may be a possibility that the material is transmitted
through mediums which may represent some other person/entity thus
misrepresenting the addressee as to the identity of the originator.
Therefore taking into consideration the above notable
distinctions, one may point out that the criminalisation of sexually explicit
conversations online is valid as per Article 14 of the Constitution.
Article 19 and Sexually explicit
conversation
There is also another argument one may advance against the
criminalisation of online conversations that it restricts a person's
fundamental freedom of Speech and Expression outlined under Article 19(1)(a) of
the Constitution of India. It is pertinent to mention that the freedom of
speech and expression is not an absolute freedom and is subject to reasonable
restrictions under Article 19(2) of the Constitution of India. Of the various
grounds mentioned in Article 19(2), one particular ground is that of decency
and morality.
The test of decency and morality, as it stands today, was
laid down by the Hon'ble Supreme Court of India in the case of Director
General, Directorate General of Doordarshan and ors. vs. Anand Patwardhan and
ors.[5] in
which it was held that the material has to be tested on the anvil of an average
person applying the contemporary community standards. If it is found offensive
by that average person, it is said to be obscene. Also, a material can be said
to be obscene if it lacks serious literary artistic, political, education or
scientific value.
One may say that Section 67 and 67A of the Information
Technology Act, 2000 acts as a reasonable restriction in the interest of
decency and morality as it prevents lewd discussions on the body of an individual
and thus prevents conversations which may corrupt or deprave the mind. Since
sexually explicit conversations do not fulfil any scientific or literary
purpose, therefore these sections are constitutionally valid.
However, the definition of what is decent and moral has
undergone a radical change in the recent decisions of the Supreme Court. Here,
it is pertinent to mention the case of S. Khushboo vs. Kanniammal and ors.[6]wherein
the Hon'ble Supreme Court opined that it is necessary to tolerate unpopular
opinions and views in the socio-cultural space. It was held that the free flow
of opinion and ideas is essential to sustain the collective life of the
citizenry and was important to promote a culture of open dialogue when it comes
to societal attitudes. Notions of social morality are inherently subjective and
the criminal law cannot be used as a means to unduly interfere with the domain
of personal autonomy. The morality to be conceived in a society is
constitutional morality and not social morality. The freedom of an individual
cannot be subjected to what is considered appropriate by the society.
Article 21 and Sexually Explicit
Conversations
Another argument which may be advanced against the
criminalisation of sexually explicit conversations is that it violates Article
21 of the Constitution of India which provides for Right to life and personal
liberty. Criminalisation of conversations which takes place between consenting
individuals in private may violate the right to privacy[7] which
includes the right to autonomy and the right to be left alone. However, the
right to privacy, like any other right is not
absolute right and may be interfered with in the interest of society at
large by means of State action which is just, fair and reasonable[8].
Article 21 of the Constitution also recognises right to
dignity as a part of right to life of an individual[9], therefore
non-criminalisation of sexually explicit conversations may infringe the right
to dignity of others as these conversations may involve derogatory remarks and
sharing of photos of a third party individual without his/her consent.
Conclusion
As has been mentioned earlier, there cannot be an absolute
answer or conclusion regarding the constitutional validity of the provisions of
the Information Technology Act, 2000. While criminalisation of conversations
may violate the fundamental rights of some, its non-criminalisation may
violate the fundamental rights of certain others. At last, its vires can only
be declared by the Hon'ble Supreme Court of India.
[2]https://m.economictimes.com/tech/internet/india-has-second-highest-number-of-internet-users-after-china-report/articleshow/71311705.cms
[3] https://theprint.in/india/twist-in-bois-locker-room-case-a-girl-started-it-all-posing-as-a-boy-police-says/418577/
[5]AIR 2006 SC 3346
[6]AIR 2010 SC 3196.
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