---

Obscenity under the Information Technology Act, 2000

---

1. Introduction

The concept of obscenity has evolved over time — what was once considered immoral or indecent has changed with society’s growth and exposure to media and technology.

However, with the rapid expansion of the Internet, social media, and digital platforms, a new problem has emerged — the easy creation, sharing, and access of obscene and sexually explicit material online.

The Information Technology Act, 2000 (IT Act) was enacted to address cybercrimes, including the transmission of obscene content through electronic means. The Act was India’s first attempt to regulate behavior in cyberspace and protect users, especially women and children, from online exploitation.

---

2. Meaning and Nature of Obscenity

The IT Act itself does not define the word “obscenity.”
To understand the concept, courts often refer to Section 292 of the Indian Penal Code (IPC).

Definition under Section 292 IPC:

A publication, book, pamphlet, paper, drawing, painting, representation, or figure shall be deemed obscene if:

• It is lascivious or appeals to prurient interests, or
• If its effect tends to deprave and corrupt persons likely to read, see, or hear it.

In Simple Words:

“Obscenity” means sexually offensive or indecent content that can morally corrupt or degrade the viewer or reader.

It is not just about nudity — the key question is whether the content promotes lust, vulgarity, or immoral ideas without any artistic or social value.

---

3. Historical Background of Obscenity Law

Before the IT Act, obscenity was regulated only by the Indian Penal Code (Sections 292–294), which punished the sale, distribution, or exhibition of obscene material.

However, with the rise of the Internet, traditional laws became ineffective, as obscene material could easily cross borders and reach thousands within seconds.
Thus, the IT Act, 2000 was introduced to handle digital transmission of obscene content and other cyber offences.

---

4. Legal Provisions in the IT Act Dealing with Obscenity

(a) Section 67 – Publishing or Transmitting Obscene Material in Electronic Form

This is the core provision of the IT Act dealing with obscenity.

What It Says:

Anyone who publishes, transmits, or causes to be published/transmitted in electronic form any material which is lascivious or appeals to prurient interest, or whose effect tends to corrupt and deprave persons who are likely to see, read, or hear it, shall be punished.

Punishment:

• First conviction: Imprisonment up to 3 years and fine up to ₹5 lakh.
• Subsequent conviction: Imprisonment up to 5 years and fine up to ₹10 lakh.

Key Points:

• Applies to emails, social media, websites, videos, or digital content.
• Covers both publishers and transmitters.
• Even forwarding obscene material may attract liability.

---

(b) Section 67A – Publishing or Transmitting Material Containing Sexually Explicit Acts

What It Says:

Whoever publishes or transmits material containing sexually explicit acts or conduct in electronic form shall be punished.

Punishment:

• First conviction: Imprisonment up to 5 years and fine up to ₹10 lakh.
• Subsequent conviction: Imprisonment up to 7 years and fine up to ₹10 lakh.

Purpose:

This section was added to handle cases involving pornography and sexual content beyond mere nudity.

---

(c) Section 67B – Publishing or Transmitting of Material Depicting Children in Sexually Explicit Act

What It Says:

It prohibits child pornography — any depiction of minors in sexual acts, either real or simulated.

Punishment:

• First conviction: Imprisonment up to 5 years and fine up to ₹10 lakh.
• Second conviction: Imprisonment up to 7 years and fine up to ₹10 lakh.

Significance:

• Covers creation, collection, browsing, downloading, or sharing of child sexual content.
• Protects minors from sexual exploitation in digital form.

---

(d) Section 67C – Preservation and Retention of Information by Intermediaries

This section places a duty on intermediaries (social media platforms, ISPs, etc.) to retain information and logs for a prescribed period.
Failure to comply can lead to punishment.

---

5. Objective of the Law

The main purpose of these sections is to:

1. Prevent the spread of pornographic and obscene material through digital platforms.
2. Protect public morality and the modesty of women and children.
3. Ensure that the Internet is used responsibly.
4. Allow the government to trace, investigate, and penalize digital offenders.
5. Provide legal deterrence against misuse of technology.

---

6. Important Case Laws on Cyber Obscenity

1. State of Tamil Nadu v. Suhas Katti (2004)

Facts:
The accused posted obscene and defamatory messages about a woman on a Yahoo message group and shared her contact details.
The victim began receiving vulgar calls and messages.

Judgment:
The Chennai Cyber Crime Cell investigated and the court convicted the accused under:

• Section 67 of the IT Act, and
• Section 509 of the IPC (insulting the modesty of a woman).

Significance:

• First conviction under the IT Act.
• Established that cyber defamation and obscenity can be prosecuted even on foreign-hosted websites.
• Highlighted the need for cyber policing and awareness.

---

2. Avnish Bajaj v. State (Bazee.com Case, 2005)

Facts:
A pornographic MMS clip involving minors was sold through Bazee.com, an online auction site. The Managing Director, Avnish Bajaj, was arrested under Sections 67 and 85 of the IT Act.

Judgment:
The Delhi High Court held that directors cannot be automatically held liable unless they had knowledge and control over the transaction.

Significance:

• Introduced the concept of “intermediary liability.”
• Led to amendments in Section 79 (Safe Harbour Protection) in 2008.
• Made online platforms more responsible for user content.

---

3. Kamlesh Vaswani v. Union of India (2013)

Facts:
A PIL sought a complete ban on pornographic websites, arguing that they promote sexual violence and immorality.

Judgment:
The Supreme Court observed that:

• Watching adult pornography in private is not an offence.
• But publishing, transmitting, or distributing pornography or child porn is illegal under Sections 67, 67A, and 67B.

Significance:

• Differentiated between private acts and public transmission.
• The Court directed the government to block websites hosting child pornography or obscene content.

---

4. Shreya Singhal v. Union of India (2015)

Facts:
Section 66A of the IT Act (punishing “offensive messages”) was challenged as vague and unconstitutional.

Judgment:
The Supreme Court struck down Section 66A but upheld Sections 67, 67A, and 67B as reasonable restrictions under Article 19(2).

Significance:

• Balanced freedom of expression with public morality.
• Clarified that only real obscenity, not mere offence or annoyance, is punishable.

---

5. Aveek Sarkar v. State of West Bengal (2014)

Facts:
A magazine published a semi-nude photo of tennis player Boris Becker with his fiancée to discuss inter-racial marriage. A complaint was filed under Section 292 IPC.

Judgment:
The Supreme Court ruled that the photo was not obscene because it was published with a social message, not to arouse sexual thoughts.

Significance:

• Adopted the Community Standards Test for determining obscenity.
• Marked a shift from the old Hicklin Test (Victorian-era morality).
• Applied even to electronic and digital content.

---

7. Tests for Determining Obscenity

1. Hicklin Test (Old English Test)
   From R v. Hicklin (1868):
   Material is obscene if it tends to deprave or corrupt vulnerable minds.
   – Very conservative and outdated.

2. Community Standards Test (Modern Test)
   From Aveek Sarkar v. State of West Bengal (2014):
   Material should be judged by contemporary community standards.
   – Focuses on intent, context, and purpose, not isolated words or pictures.

---

8. Role of Intermediaries in Obscene Content

Under Section 79 of the IT Act, intermediaries (like YouTube, Facebook, or ISPs) enjoy “safe harbour protection”, provided they:

• Do not initiate or modify content.
• Act quickly after receiving a court order or government notice to remove obscene material.
• Follow the Intermediary Guidelines Rules, 2021, by removing objectionable content within 36 hours.

Failure to act results in loss of immunity and potential criminal liability.

---

9. Jurisdictional and Enforcement Challenges

1. Cross-border Issues:
   Obscene websites are often hosted outside India, making it difficult to prosecute offenders.

2. Anonymity and Encryption:
   Cybercriminals use fake profiles and VPNs to hide identity.

3. Balancing Free Speech and Morality:
   Courts must avoid moral policing while maintaining decency.

4. Technological Gaps:
   Law enforcement agencies often lack technical tools to track offenders effectively.

---

10. Comparative Note (Global Perspective)

Country	Legal Framework	Approach
USA	Communications Decency Act (CDA), 1996	Focus on child protection; strong free speech protection.
UK	Obscene Publications Act, 1959	Punishes publishing and transmission of obscene material.
India	IT Act, 2000; IPC Sections 292–294	Balances morality with constitutional rights and cultural values.

---

11. Conclusion

Obscenity laws under the Information Technology Act, 2000 play a vital role in maintaining the moral and ethical use of cyberspace.
They criminalize the electronic transmission of obscene and sexually explicit material while recognizing the right to free expression.

Indian courts have moved from rigid moral standards to a contextual, balanced approach, judging obscenity by purpose, intent, and community values.

The law thus aims to create a safe digital space — protecting citizens, especially women and children, from exploitation while preserving the freedom and openness of the Internet.

---

Excellent — let’s go deep into Obscenity-related case laws (Indian + International), written in 100% humanized, clear, and exam-focused language for LLB students.

This answer gives you a complete, detailed, and easy-to-remember analysis of all the major obscenity judgments — from early IPC interpretations to cyber-era decisions under the Information Technology Act, 2000.

---

Obscenity – Detailed Case Law Analysis (LLB Notes)

---

1. Regina v. Hicklin (1868) – The Origin of the Obscenity Test

Court: Queen’s Bench, England

Facts:

A pamphlet titled “The Confessional Unmasked” criticized the Catholic Church and contained descriptions of sexual confession practices. It was seized under the Obscene Publications Act, 1857.
The issue was whether such material was obscene even if not meant to corrupt adults.

Issue:

What constitutes obscenity under law?

Judgment:

Justice Cockburn held that:

“Any material is obscene if it tends to deprave and corrupt those whose minds are open to such immoral influences.”

Significance:

• Introduced the Hicklin Test, focusing on the effect of the material on vulnerable readers, not on the general public.
• Became the basis for Section 292 IPC in India.
• However, it was later criticized for being too rigid and moralistic.

---

2. Ranjit D. Udeshi v. State of Maharashtra (1965)

Court: Supreme Court of India

Facts:

The appellant, a bookseller, sold an unedited copy of “Lady Chatterley’s Lover” by D.H. Lawrence. The novel contained sexual scenes and explicit language. He was charged under Section 292 IPC for selling obscene material.

Issue:

Does selling a literary work with sexual content amount to obscenity?

Judgment:

The Supreme Court upheld the conviction and applied the Hicklin Test, stating that:

Material which tends to deprave and corrupt readers by appealing to their prurient interest is obscene.

Significance:

• First major Indian Supreme Court case on obscenity.
• Held that freedom of speech under Article 19(1)(a) is subject to decency and morality under Article 19(2).
• Confirmed that literary works are not exempt from prosecution if the effect is corrupting.

---

3. Chandrakant Kalyandas Kakodkar v. State of Maharashtra (1970)

Court: Supreme Court of India

Facts:

The accused, an author and publisher, was prosecuted for publishing stories in a Marathi magazine containing sexual references.

Issue:

Whether such literary stories are obscene and punishable under Section 292 IPC?

Judgment:

The Court held that:

Standards of morality change with time. The test of obscenity must depend on contemporary social mores and the literary value of the work.

Significance:

• Introduced the idea of changing social standards.
• Courts must consider the context, literary purpose, and intent behind the work.
• A softer approach than Udeshi.

---

4. Samaresh Bose v. Amal Mitra (1985)

Court: Supreme Court of India

Facts:

The case involved a Bengali novel “Prajapati”, which used vulgar language and depicted sexual behavior among youth. The author was charged under Section 292 IPC.

Issue:

Whether the novel was obscene or whether it had literary and social value?

Judgment:

The Court acquitted the author, holding that:

A work should not be judged by a few lines or passages but as a whole.
If the dominant theme has literary, artistic, or social importance, it cannot be called obscene.

Significance:

• The Court shifted from moral censorship to literary evaluation.
• Whole-work test replaced selective reading.
• Laid the foundation for later liberal decisions.

---

5. Bobby Art International v. Om Pal Singh Hoon (1996) – Bandit Queen Case

Facts:

The film Bandit Queen portrayed the real-life story of Phoolan Devi, showing scenes of sexual violence, abuse, and humiliation. A petition was filed claiming that it was vulgar and obscene.

Issue:

Does showing nudity or sexual violence in a movie for a social message amount to obscenity?

Judgment:

The Supreme Court held that:

The film was not obscene; it depicted the horrors of caste oppression and sexual violence. The purpose was educational and reformative, not to arouse lust.

Significance:

• Recognized artistic and social intent as a defense against obscenity.
• Realistic portrayal of social evils ≠ pornography.
• Strengthened the freedom of creative expression.

---

6. Ajay Goswami v. Union of India (2007)

Facts:

A journalist filed a petition demanding stricter control over publication of sexually explicit news or photos in newspapers, alleging that it corrupted youth.

Issue:

Should the government censor all sexually explicit content in print media to protect morality?

Judgment:

The Supreme Court held that:

Adults have the right to read what they wish.
Only material that is clearly obscene under Section 292 IPC can be restricted.

Significance:

• Reaffirmed freedom of the press under Article 19(1)(a).
• Censorship cannot be based on subjective morality.
• The Court refused to extend moral policing to all media.

---

7. Aveek Sarkar v. State of West Bengal (2014)

Facts:

A German magazine published a nude photograph of tennis player Boris Becker and his fiancée to promote interracial love. An Indian newspaper reproduced the image, leading to obscenity charges under Section 292 IPC.

Issue:

Is nudity per se obscene, or should the purpose and context be considered?

Judgment:

The Supreme Court dismissed the complaint, stating that:

Obscenity should be judged from the point of view of an average person applying contemporary community standards, and not by isolated moral values.

Significance:

• Replaced the Hicklin Test with the Community Standards Test.
• Context, intent, and purpose must be examined.
• Landmark for balancing artistic freedom and public morality.
• Strong influence on cyber obscenity cases under Section 67 IT Act.

---

8. Shreya Singhal v. Union of India (2015)

Facts:

Section 66A of the IT Act (criminalizing offensive messages) was challenged as violating free speech.

Issue:

Whether online restrictions like Section 66A infringe Article 19(1)(a) of the Constitution?

Judgment:

The Supreme Court struck down Section 66A as unconstitutional but upheld Sections 67, 67A, and 67B, which punish obscenity and pornography.

Significance:

• Distinguished between offensive speech (protected) and obscenity (restricted).
• Upheld the validity of anti-obscenity provisions in the IT Act.
• Clarified that freedom of speech is not absolute.

---

9. Kamlesh Vaswani v. Union of India (2013 & 2018)

Facts:

A PIL was filed seeking a complete ban on porn websites, claiming they spread immorality and violence.

Issue:

Whether banning all pornographic websites violates the right to privacy and free speech?

Judgment:

The Supreme Court held that:

• Watching porn privately is not a crime.
• But publishing, transmitting, or hosting pornographic content is punishable under Sections 67, 67A, and 67B of the IT Act.
• Directed the government to block child pornography websites under Section 69A.

Significance:

• Drew a distinction between private morality and public morality.
• Strengthened the ban on child porn and revenge porn.
• Basis for ongoing government blocking of adult sites.

---

10. State of Tamil Nadu v. Suhas Katti (2004)

Facts:

The accused posted obscene, defamatory content about a woman on an online forum and shared her number, leading to harassment.

Judgment:

He was convicted under Section 67 IT Act and Section 509 IPC.

Significance:

• First conviction in India for online obscenity.
• Proved that online abuse is a punishable cybercrime.

---

11. Santosh Kumar Singh v. State (2004) – Priyadarshini Mattoo Case (Reference)

Though primarily a rape-murder case, the Court commented on media obscenity, noting that sensationalism and indecent depictions can degrade public morality.

Significance:

Helped shape judicial restraint and responsible media ethics in cases involving sexual content.

---

12. Vishaka v. State of Rajasthan (1997)

While this is a sexual harassment case, the Court discussed “decency and dignity” under Article 21 and Article 19(2).
It emphasized that display or transmission of obscene content violating a woman’s dignity can be restricted.

---

13. Observations on Tests of Obscenity

Test	Case	Essence
Hicklin Test	Regina v. Hicklin (1868)	Focus on corrupting influence on the weak-minded.
Whole Work Test	Samaresh Bose (1985)	Work must be judged as a whole, not in parts.
Community Standards Test	Aveek Sarkar (2014)	Context, purpose, and contemporary values are decisive.

---

14. Summary of Legal Evolution

Era	Test Applied	Key Case	Nature of Approach
Pre-1965	Hicklin Test	Ranjit Udeshi	Strict, moralistic
1970–1985	Social Standards Test	Chandrakant & Samaresh Bose	Liberal, context-based
1990–2010	Artistic & Social Message Test	Bandit Queen & Ajay Goswami	Balanced, realistic
2014 onwards	Community Standards Test	Aveek Sarkar	Modern, contextual

---

15. Conclusion

Indian courts have progressively modernized their understanding of obscenity.
From rigid moral standards (Hicklin Test) to a balanced approach based on social context and intent, the judiciary now recognizes that not all nudity or sexual content is obscene.

Under the Information Technology Act, 2000, Sections 67, 67A, and 67B ensure that obscene material intended to corrupt or exploit is punishable, while artistic, educational, or social expressions are protected.

Thus, the law on obscenity today stands as a balance between freedom of expression, public morality, and human dignity.