This article has been authored by Eeshan Sonak and Ayush Kulkarni Second year law students at NALSAR University of Law.
Article 19 of the Indian Constitution provides freedom of speech and expression, but this freedom is subject to reasonable restrictions. One such restriction is “decency” and “morality”, meaning that the Government can control obscene material. This is recognized in Section 292 of the Indian Penal Code (‘IPC’), the constitutional validity of which has been time and again established. Section 67 of the Information Technology Act, 2000 (‘IT Act’) has extended this law’s reach to the digital medium. It imposes criminal liability on transmission or publication of any material that is obscene and appeals to the prurient interests of the populace.
While the intention behind enacting Section 67 may be justified, its application reveals its vague and overarching nature and its scope for misuse. This is demonstrated in several recent incidents where journalists and activists have been frivolously prosecuted under this section, showing a discord between Section 67’s stated object and its implementation. The section is increasingly being used to censor politically distasteful content by simply labelling it “obscene”. Though most cases registered under it are dismissed at the trial stage, this article argues that Section 67 enables harassment and vexation, thereby causing a chilling effect on freedom of expression. In that regard, the article points to the uncanny resemblance of Section 67 to the erstwhile Section 66A; a provision which was struck down by the Supreme Court in Shreya Singhal v. Union of India (‘Shreya Singhal’) for being vague and failing to provide ‘manageable standards’ of imposed restrictions.
Further, Section 67 uses terms like “published” and “transmitted,” which are not defined in the IT Act. Hence, it has been applied even in cases of consensual private communication. This article argues that a private or personal message is never supposed to be made public and should therefore be protected. The article seeks to demonstrate why criminalizing private communication that the state deems to be obscene is a grave violation of the right to privacy.
Defining the scope of ‘obscenity’
The early common law test for ‘obscenity’ was laid down in R v. Hicklin, according to which the material is obscene if it tends to deprave and corrupt those who are likely to read it. This test was accepted by the Supreme Court in Ranjit Udeshi v. State of Maharashtra (even though it had been discarded in its own country just a few years before India’s decision). However, since then, Indian law has adopted a more liberal approach.
In Director General of Doordarshan v. Anand Patwardhan, though the Court did not reject the Hicklin Test, it laid down a three-prong test which was similar to the community standards test developed by the United States Supreme Court in Miller v. California. In order to prove something to be obscene, the three-prong test required material to be ‘patently offensive,’ possess ‘no redeeming social value,’ and to be evaluated as per the ‘contemporary community standards’. In the 2014 case of Aveek Sarkar v. State of West Bengal, the Supreme specifically rejected the Hicklin Test and accepted the test in Anand Patwardhan. However, even this test has been criticized as the phrase ‘contemporary community standards’ is incapable of precise definition and relies on majoritarian views of public morality.
Instead of this approach, the authors believe that the law must be guided by constitutional morality. Recent cases like Navtej Singh Johar v. Union of India and Joseph Shine v. Union of India have consciously shifted their approach from popular perceptions and public morality towards well-established legal principles and constitutional morality. The Court in Navtej Singh Johar explicitly stated that “It is expected from the Courts as the final arbiter of the Constitution to uphold the cherished principles of the Constitution and not to be remotely guided by the majoritarian view or popular perception. The Court has to be guided by the conception of constitutional morality and not by societal morality.”
Section 67 and its discontents
In Shreya Singhal, the Supreme Court quoted United States v. Reese, and struck down Section 66A, holding that it was a “net large enough to catch all possible offenders and leave it to the Court to step in and say who could be rightfully detained and who should be set at liberty”.
Today, Section 67 is being misused in a similar manner and seems to have taken its place as a weapon of harassment in the Government’s arsenal. One such case of misuse is that of S Thirumurugan, a 19-year-old boy from Tamil Nadu, who was arrested for making “filthy” comments about Prime Minister Narendra Modi in a private Facebook conversation. In another incident in Uttar Pradesh, the police arrested freelance journalist Prashant Kanojia for making objectionable comments against Chief Minister Yogi Adityanath. In yet another case, journalist Prabhat Singh was arrested in Chhattisgarh for making comments on WhatsApp against the Samajik Ekta Manch, a vigilante group with close links to the Bastar police.
As these cases demonstrate, Section 67 allows for unnecessary executive intrusion on an individual’s rights. As stated above, even though most such cases do not make it past the trial stage, Section 67 can be used as a tool by the Government to harass persons with differing political opinions. This causes a ‘chilling effect’ in people’s minds, as one doesn’t know the exact scope or extent of the provision. To draw a parallel, one of the grounds on which Section 66A was struck down was its lack of clarity in defining what is prohibited. This created two issues: firstly, it delegated immense discretionary powers to the executive, who would regularly misuse and abuse it; and secondly, it resulted in people refraining from fully expressing themselves under the fear of it being declared unlawful.
Due to the similarity in the scope and applicability of Sections 66A and 67, the authors believe that the latter must also be declared unconstitutional or at least read down to comprehensively and exhaustively define what constitutes an offence. This exercise would divest the executive of some of its vast discretionary powers and would therefore limit its misuse. It would also inspire confidence in the people and truly enable them to avail of their right to free speech and expression.
Privacy in Private Communication
One of the most draconian and arbitrary aspects of Section 67 is that it can even be invoked to arrest a sender of a private communique if the State deems it to be obscene. Arrests have been made in multiple cases where transmission is between two consenting individuals through private social media accounts. In Justice KS Puttaswamy v. Union of India, a nine-judge bench of the Supreme Court unanimously held that the right to privacy was a fundamental right under Article 21 of the Constitution and set three conditions that must be met if it is to be breached; the existence of a law sanctioning such violation, the law should be backed by a legitimate state interest, and there should be proportionality and a rational nexus between the object and the means adopted to achieve it. It is noteworthy that a more stringent test of ‘compelling state interest’ was adopted by the Supreme Court in Govind v. State of Maharashtra, and reiterated in the phone tapping case PUCL v. Union of India.
This begs the question, is Section 67 a reasonable restriction on the right to privacy? And does it satisfy the conditions laid down in Puttaswamy? Given its stringent punishment and highly invasive nature, Section 67 must pass strict scrutiny. The Supreme Court in Navtej Singh Johar held that criminalizing consensual private acts is unconstitutional. Hence, the authors are of the opinion that Section 67 goes overboard in penalizing private conversations between consenting adults, and therefore, it does not pass the proportionality test. The object of the Section is to stop the ‘corruption’ of the public. In our opinion, criminalizing private communication has no rational nexus with this object or with any other state policy. Therefore, the authors believe that Section 67 must either be read down to apply to acts that can truly corrupt the public or be struck down as being wholly unconstitutional.
Due to the vagueness and undefined borders, Section 67 causes a chilling effect and results in the curbing of free speech. Like the draconian Section 66A, Section 67 has been repeatedly misused and even abused. Given the present government’s tumultuous history with free speech, it is imperative for the judiciary to narrow the scope of Section 67, if not strike it down. Apart from being vague, Section 67 still calls for applying public morality and reinforces majoritarian societal values instead of moving towards the test of constitutional morality. Lastly, Section 67 intrudes on an individual’s privacy by penalizing private communications. This is unprincipled and arbitrary and does not have a rational nexus with the object it seeks to achieve. In sum, Section 67 is in considerable conflict with the Constitution in that it uses vague and inexact terminologies, is founded on outdated moralistic notions, and unjustly infringes upon an individual’s privacy. The effect of these shortcomings can be clearly witnessed in the inappropriate manner in which it’s being implemented.