In the context of Section 67 of the Information Technology Act, 2000, which pertains to the publishing or transmission of obscene material in electronic form, it is imperative to consider the legal intricacies surrounding the grant of bail. This stipulates that the offense is punishable with imprisonment extending up to three years and a fine up to five lakh rupees upon first conviction, and for subsequent convictions, imprisonment up to five years and a fine up to Rs 10 lakh.

The terms “lascivious content” and “obscene material” within this section have been subject to ambiguity and dispute, potentially leading to misuse and misinterpretation. Legal precedent, such as the Ranjit D. Udeshi v. State of Maharashtra case, initially applied the Hicklin Test, which assesses obscenity based on the material’s potential to deprave and corrupt minds. However, the Aveek Sarkar and Anr v. State of West Bengal and Ors. case discarded the Hicklin Test in favor of the “Community Standards Test,” emphasizing that material should be considered obscene only if it arouses lustful and depraved thoughts, judged by contemporary community standards.

Nevertheless, Section 67 suffers from certain deficiencies:

  • Undefined terms: Ambiguities in terms such as “published” and “transmitted” make it challenging to ascertain the elements constituting an offense under this provision.
  • Criminalization of consensual conduct: The section fails to account for consent, potentially penalizing consensual actions. For instance, recording material with consent is not prima facie culpable, but the subsequent unauthorized publication is penalized.
  • Lack of clarity in objectives: The section’s objectives remain unclear, leading to inconsistencies and potential violations of Article 14 of the Constitution. Instances of using this provision to censor political content further highlight this issue.

In the matter of granting bail, parameters outlined in the State of Maharashtra v. Dhanendra Shriram Bhuller case include consideration of the nature of culpability, severity of potential punishment, the nature of supporting evidence, apprehension of witness tampering, and threats to the complainant. Prima facie satisfaction of the court regarding the charge is also a crucial factor.

In conclusion, a comprehensive understanding of Section 67 is essential when contemplating bail under this provision, considering the legal nuances, ambiguous terms, and the prevailing social context, as well as considering the perceptions and understanding of the average populace.

Bhavesh Jangra

Legal Associate

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