Introduction

The Information Technology Act, 2000 (also known as ITA-2000, or the IT Act) is an Act of the Indian Parliament notified on 17th October, 2000. It is the primary law in India dealing with cybercrime and electronic commerce. One of the objectives of legislating the Information Technology Act, 2000 (“Act”) was to discourage and punish crimes like voyeurism and digital obscenity although this Act has been a subject of contention and controversy. As it is amended, it contains some of the most stringent privacy requirements in the world and has the unfortunate impact of holding intermediaries liable for illegal content.

According to Section 67 of the Information Technology Act, 2000 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 if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either description for a term which may extend to three years and with fine which may extend to five lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to five years and also fine which may extend to ten lakh rupees.

There has been stark rise in cases of online harassment recently which has sprung questions on the viability of Section 67 of the IT Act. Nonetheless, Section 67 is the primary provision that is applied in maximum cases of cybercrimes against women along with Section 66 E.

Scope

Lately, there have been multiple cases of cyber-crime which intend to insult the modesty of women and also defame any person. Section 67 of the Information Technology Act covers similar offences as IPC Section 292.

Section 292 of IPC says: “a book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object, shall be deemed to be obscene if it is lascivious or appeals to the prurient interest or if it effect is such as to tend to deprave and corrupt person”. However, the penalties under IPC Section 292 and Section 67 are different. While the jail term and fine under IPC Section 292 for the first time offenders are two years and a moderate fine of Rs 2000 respectively, under Section 67, it is five years and Rs 5 lakh. The jail term and fine on second conviction is three years and a fine of Rs 5000 under IPC Section 292, but five years and Rs 10 lakh under Section 67 of IT Act. Now the term `obscene’ and ‘lascivious’ are subjective and are open to being interpreted differently by different people. A matter or an act cannot be considered obscene merely because for its nude content but if it contains matter that arouses lustful and depraved thoughts, which also falls under the ambit of the definition prescribed under the relevant Section, then a charge of obscenity can be brought. Nakedness does not always arouse baser instinct. In Maqbool Fida Hussain v. Raj Kumar Pandey the apex court applied the principle `generalia specialibus non derogant’, and held that when the crime committed has some nexus with electronic medium, provisions of IT Act would apply and when the accused has been acquitted under provisions of the IT Act, similar provisions of the IPC would not apply. Hence it is clear that Section 67 enjoys precedence over Section 292 and other relevant sections of IPC and therefore use of the said Section becomes even more pivotal otherwise it can have climacteric effect.

Misuse

Five years after the controversial Section 66A of the Information Technology Act was struck down by the Supreme Court, new research points out at how another section of the Act is being similarly misused with grave consequences for freedom of expression, sexuality and digital rights. Section 67 is misused to curb the Political dissent. Recently cyber police have arrested a 38-year-old woman in Navi Mumbai after she shared a photoshopped image of Maharashtra CM Uddhav Thackrey and abused him and his son Aaditya Thackrey on social media. She has been booked for promoting enmity between different groups and defamation among other charges. In another similar incident, a woman from Bangalore was booked for posting objectionable material on FaceBook against Yogi Adityanath. Nowadays lot of female celebrities are getting rape threats on social media due to ongoing nepotism debates and also due to Sushant Singh Rajput’s suicide case many celebrities are under the fire and are getting death threats but not a single person is arrested or booked. But any statement made against politicians on social media is promptly looked upon. Another significant point is that Section 67 only penalises transmission and publication of obscene material. Viewing, downloading and possessing such content is not punishable unless the victims are children. Recently `Bois Locker Room’ incident was highlighted in media in which the boys were involved in deranged conversation and were objectifying women. However, no one questioned the adult content which is easily available to children below the age of 12 on OTT platforms. They have direct access to apps like Ullu and ALT Balaji where the entire content is full of bawdiness. We can assail the `Bois Locker Room’ incident but society as a whole has seen a drastic change in the past decade which has contributed to such incidents. Such `obscene material’ which is easily accessible to all contributes to the harassment and objectification of women on social media. Since there is little legal clarity on what is obscene, there is subjectivity which allows for arrests and indiscriminate arrests.

Conclusion

It is quite evident that Section 67 is widely misused and that there is lack of clarity on the term `obscene’. The apex court has set the `Community Standards test’ as the basis of the determination of obscenity instead of the parochial `Hicklin Test’ in Aveek Sarkar Case but still Courts needs to fill many significant lacunae with respect to section 67. A report `Guavas and Genitals’ drew its matter from a case in Pune in which four underage boys were charged with Section 67 of the IT Act for filming and sharing a video where they perform sexual acts on each other. Here, the concept of `consent’ holds significance which is not given due regard under the Act. This shows that the provision is not designed to protect the victim’s privacy and consent but to merely stop the obscene material. It is pertinent to note that between 2015-17, out of 99 cases of obscenity that were registered and analysed, 28 involved non-consensual production of images or videos. However, those cases were not registered under 66E (which deals with privacy violation), but under Section 67 which deals with obscenity. The question which arises now is that do existing laws and initiatives support women in actual practice in confronting the considerable challenges that they face online? It is a reality that technology is advancing and the number of people including all age groups are using cell phones, laptops and have access to internet, therefore, they are at risk of being exposed to cybercrimes. Section 67 is misused and is also inadequate but this inadequacy can be dealt with by taking into account all the loopholes and working on it with essential measures. The misuse can be treated by not using the said section for political dissent and by defining the terms with more clarity and giving `obscene’ due recognition under the clause.

Coronavirus disease 2019 (COVID-19) is defined as illness caused by a novel coronavirus now called severe acute respiratory syndrome coronavirus 2, which was first identified amid an outbreak of respiratory illness cases in Wuhan City, Hubei Province, China. It was initially reported to the WHO on December 31, 2019. On January 30, 2020, the WHO declares the COVID-19 outbreak a global health emergency. On March 11, 2020, the WHO declares COVID-19 a global pandemic, its first such designation since declaring H1N1 influenza a pandemic in 2009.

The WHO leads global efforts on creating safer practices and preventing public health disasters throughout the world and to fulfil the same objectives WHO introduced International Health Regulations. These were adopted in the year 2005 and were enforced in the year 2007. These regulations are legally binding agreement on all WHO members including India whereby all the member countries must make necessary measures- legislatively and institutionally to prepare for international public health risks.

COVID-19 is a problem of public health which leads to problem of public order. Now through legal point of view, the Constitution of India under Article 245 specifies basis for division of powers between the Centre and the states and under Article 246 explains distribution of law-making power between the Centre and the states. According to Seventh Schedule of the Constitution of India Public Order and Public Health comes under the State List, thereby, state governments have the authority to deal with issues relating to Public health and order but according to Entry 29 of the Concurrent List in Seventh Schedule centre has more power than states to make a law and take certain actions in preventing the spreading of infectious diseases from one state to another. Therefore, Centre has come up with national lockdown and it is implemented across the states.

National Disaster Management Act, 2005 is the key empowering provision for the lockdown to exist. The lockdown has been carried out by state governments and district authorities on the directions of the Union Ministry of Home Affairs under the said act. Under the Act, the National Disaster Management Authority (NDMA) was set up under the leadership of the Prime Minister, and the National Executive Committee (NEA) was chaired by the Home Secretary. After being satisfied that COVID-19 is a pandemic as per WHO the National Disaster Management Authority headed by Prime Minister directed the Centre and states to ensure social distancing as per section 6(2)(i) of the Act and the National Executive Committee headed by the Home Secretary directed the lockdown orders with specific details as per section 10(2)(l) of the Act.

On March 24, 2020, the NDMA and NEA issued orders directing the Union Ministries, State governments and authorities to take effective measures to prevent the spread of COVID-19. The invoking of National Disaster Management Act has allowed the Union government to control the pandemic and to communicate seamlessly with the States. Government of India is taking all necessary steps to ensure that we are prepared well to face the challenge and threat posed by the growing pandemic of COVID-19.

• In our country, disobedience to the rules set out by the government to control COVID-19 is punishable with Section 188 of the Indian Penal Code,1860. Under this section, whoever, knowing that, by an order promulgated by a public servant, disobeys the order, and if such disobedience causes or tends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with an imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.

• Failure to take requisite precautions despite being aware of the possibility of the spread of such infection or disease is punishable under Sections 269 and 270 of the IPC.

• Under Section 269, whoever unlawfully or negligently does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description up to six months or fine or with both fine and imprisonment. Under Section 270, whoever malignantly does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

• Disobedience to quarantine rule is punishable under Section 271 of the IPC with imprisonment of either description for a term which may extend to six months, or with fine, or with both.

Tough times never last, but tough people do. We should strictly follow the guidelines laid down by the government. The disease spreads primarily from person to person through small droplets from the nose or mouth, which are expelled when a person with COVID-19 coughs, sneezes, or speaks. People can catch Covid-19 if they breathe in these droplets from a person infected with the virus. This is why it is important to stay at least 1 meter away from others. These droplets can land on objects and surfaces around the person such as tables, doorknobs and handrails. This is why it is important to wash your hands regularly with soap and water or clean with alcohol-based hand rub. We all need to understand the repercussion of not following the rules laid down by the government and the catastrophic effect on the whole country if we disregard the precautionary measures mandated by the State.