LEGAL TAKE ON DECODING CONSENT AND SEXUALLY EXPLICIT CONVERSATIONS

In the month of May this year, a case of an Instagram group by the name of ‘Boi's Locker Room' stormed the internet. The screenshot of the chats of that group revealed that the group was being used by boys between the age of 14 to 16 years for sharing morphed and indecent images of girls and for commenting and having lucid discussions about the same. Section 67 and Section 67A of the Information Technology Act, 2000 penalizes the sharing of obscene and sexually explicit content on the internet an offence. However, an important question which arose from the present case was whether consent can act as an exonerating factor in case of such conviction? In other words, if such content is being shared with the consent of both the originator as well as the addressee, can a conviction under Section 67 as well as 67A sustain?

There is no clear authority of any Hon'ble Court in India on the above question. However, giving a literal interpretation to the above Sections, it can be deduced that the mere transmission of obscene or sexually explicit content on the internet is an offence. The provision does not consider the consent of the individuals as an excusing factor mitigating the sentence that can be awarded to them. Therefore, if an originator (the person who sends the message) transmits to the addressee (the person to whom the message is sent), any sexually explicit content, then both the originator and the addressee can be held guilty under the provisions of the Information Technology Act, 2000.

Thus the present provision of the Information Technology Act, 2000 is a strict provision which tends to regularize the content which one shares on the social media platforms. The provision is a salutary provision as it tends to deter the cases of crime similar to that of Bois Locker Room and is thus essential for saving the dignity and reputation of individuals which is their fundamental right.

Written By: Mr. Manik Mahajan, Final Year Law Student, Punjab University Law Intern at S. Bhambri & Associates(Advocates), Delhi

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