MORE THAN two years after Supreme Court struck down Section 66A of Information Technology (IT) Act, and the Centre now looking at an expert committee report on how to deal with its consequences, civil rights activists and lawyers caution that Section 67 of IT Act could be the new 66A.
Acting as umbrella under which online acts of obscenity can be prosecuted, cases filed under Sector 67 is on the rise, according to figures collated since 2002.
“From 2008 to 2015, the number of cases filed under Sec 67 grew steadily from 105 to 749, while those filed under Sec 66 grew from 138 to a whopping 6567,” according to a report by Point of View, a non-profit organisation that works on gender-rights, against sexual violence, and on digital rights of women.
Section 67 of IT Act says, “…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…tends to deprave and corrupt persons…shall be punished.”
Concerns have been raised also about the catch-all category of obscenity. Apar Gupta, a lawyer interested in issues of internet freedom, said, “After Supreme Court struck down Section 66A of IT Act (in 2015), police departments are indiscriminately using Section 67. Since there is little legal clarity on what is obscene, there is subjectivity which allows for arrests and indiscriminate arrests.”
“From 2002 to 2015, Sec 66 was the highest used section in IT Act; Sec 67 was the second-highest used Section,” notes Point of View.
In the offline world, Section 292 of IPC covers similar offences, but online activity defined as obscene has graver consequences — with greater punishments attached. Section 292 results in a jail term up to two years and a fine up to Rs 2,000 for first-time conviction. Under Section 67, jail term can be up to three years and the fine up to Rs 5 lakh for the first time.
A subsequent conviction raises the maximum jail term to five years under both Sections —but the fine goes only up to Rs 5,000 under IPC Section 292, and up to Rs 10 lakh in Section 67.
While exceptions for scientific, literary, artistic or religious purposes are allowed under IPC Section 292, they are not allowed under Section 67 of IT Act.
Between 2015 and 2017, data collected by Point of View suggests a rise in number of cases, and types of cases categorised as obscene: from 30 in 2015, to 35 last year, and 34 until May 31 this year.
Bishakha Datta of Point of View said, “Section 67 is leaning suspiciously towards Section 66A…. We found that crimes of consent are being treated as crimes of obscenity. When someone takes a nude photo of a woman without asking her, her consent is violated —- that is primary harm, not obscenity. When someone takes a rape video, it’s violation of consent, not of obscenity. Unfortunately, many of these cases are filed under the anti-obscenity provision…(of) Section 67.”
Dr Sivakumar, Law Commission member and member of the expert committee which has submitted its recommendations to the government, said he “cannot speak much on this, but it is best if the IPC is amended suitably and ambiguities removed, allowing for widespread arrests”.