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.



[1] Internet And Mobile Association of India, India Internet 2019.
[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/
[4] Budhan Choudhry and ors vs. State of Bihar, AIR 1955 SC 191
[5]AIR 2006 SC 3346
[6]AIR 2010 SC 3196.
[7] Justice K.S. Puttaswamy and ors vs. Union of India and ors., AIR 2017 SC 4161
[8] Ram Jethmalani and ors vs. Union of India and ors., 2011 (4) ALLMR (SC) 815
[9] National Legal Services Authority vs. Union of India, (2014) 5 SCC 438

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