Section 67 IT Act: Publishing Obscene Content Online, Punishment and Bail

Section 67 of the Information Technology Act, 2000 punishes publishing or transmitting obscene material in electronic form. It is often invoked over social media posts, WhatsApp forwards, reels and messages. It is the base of a three-tier structure: Section 67 (obscene), Section 67A (sexually explicit) and Section 67B (material involving children). Which tier the police choose makes a large difference to bail.

What Section 67 says

Whoever publishes or transmits, or causes to be published or transmitted, in electronic form, any material which is lascivious or appeals to the prurient interest, or whose effect tends to deprave and corrupt persons likely to read, see or hear it, commits an offence under Section 67.

Punishment:

• First conviction: up to three years and a fine of up to ₹5 lakh.
• Second or subsequent conviction: up to five years and a fine of up to ₹10 lakh.

What is "obscene"? The legal test

Courts in India apply the community standards test adopted by the Supreme Court in Aveek Sarkar v. State of West Bengal (2014). The material must be judged as a whole, from the point of view of an average person applying contemporary community standards. Nudity or sexual reference by itself is not obscene. Vulgar, crude or offensive language is also not automatically obscene: the material must tend to arouse lustful or prurient thoughts. Several High Courts have quashed Section 67 FIRs over abusive posts on this basis.

This test is often the strongest defence. Many Section 67 FIRs are registered over posts that are insulting or defamatory but not obscene in law.

Is Section 67 bailable?

• First offence: punishable with up to three years, so bailable under Section 77B of the IT Act. The accused is entitled to bail as of right.
• Repeat offence: punishable with up to five years, so non-bailable.
• Compounding: a first offence is compoundable under Section 77A, but not where it is committed against a woman or a child.

Sections commonly added

• Section 67A IT Act if the material shows a sexually explicit act. This is non-bailable, with up to five years on first conviction.
• Section 294 BNS (sale or distribution of obscene material, including electronic display).
• Section 79 BNS (insulting the modesty of a woman), Section 356 BNS (defamation), and Section 351 BNS (criminal intimidation).
• Section 66E IT Act if a person's private images are involved. See our post on Section 66E.

How bail and defence are approached

• Check whether 67 is made out at all. Apply the community standards test to the actual post. Abuse, satire or political criticism is usually not obscenity.
• Check whether 67A is wrongly added. If the material does not depict a sexually explicit act, 67A should not apply, and bail becomes a right again.
• Section 35 BNSS notice for offences up to seven years, and anticipatory bail under Section 482 BNSS where non-bailable sections are added.
• Quashing under Section 528 BNSS where the FIR does not disclose an offence on its face, or where it is a counter-blast in a personal dispute.
• Takedown and undertakings: courts often grant bail on conditions such as removing the post and not repeating it.

What not to do

• Do not re-post or forward the material while the case is pending.
• Do not post about the complainant or the case on social media.
• Do not delete the account wholesale without advice. Preserving your own copy and the context can matter for your defence.

Legal help in Gurugram

Rajat Kadyan and Associates handles cyber crime, bail and FIR quashing matters before the District and Sessions Court, Gurugram, and the Punjab & Haryana High Court.

Phone: +91 82954 13475 · Email: contact@rajatkadyan.com

Disclaimer: This article is for general information only and is not legal advice. Every case depends on its own facts.