Obscenity in Electronic Form

In one line

Section 67 punishes publishing or transmitting lascivious material in electronic form and section 67A punishes material containing a sexually explicit act, the second carrying nearly twice the sentence, and both are subject to the public good proviso in section 67B.

Section 67

67. 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 up to three years and with fine up to five lakh rupees, and on a second or subsequent conviction with imprisonment up to five years and fine up to ten lakh rupees.

The test is in three alternative limbs, and the material need satisfy only one: lascivious; appealing to the prurient interest; or having an effect tending to deprave and corrupt those likely to read, see or hear it.

Those words come from section 292 of the Indian Penal Code, 1860, now section 294 of the Bharatiya Nyaya Sanhita, 2023, and behind them lies the Hicklin test from R. v. Hicklin, decided in 1868, which asked whether the tendency of the matter is to deprave and corrupt those whose minds are open to such immoral influences.

The Indian courts have moved away from Hicklin. In Ranjit D. Udeshi v. State of Maharashtra, decided in 1965, the Supreme Court applied Hicklin while insisting that the work be judged as a whole and that the interests of art, literature and science be weighed. In Aveek Sarkar v. State of West Bengal, decided in 2014, the Court held that the Hicklin test should be discarded in favour of the community standards test: obscenity is to be judged from the point of view of an average person applying contemporary community standards, considering the material as a whole and in its context, and a picture is to be judged by whether it arouses sexual passion in the average viewer rather than by whether it might corrupt the most susceptible.

Note that section 67 was not amended to say so. The words of the section are still the Hicklin words; the change is in how courts read them, and an answer should state both.

What the 2008 amendment did to section 67

As enacted in 2000 section 67 carried, on a first conviction, imprisonment up to five years and a fine up to one lakh rupees, and on a subsequent conviction up to ten years and two lakh rupees.