Term "sexually explicit" under section 67A IT Act not limited to sexual intercourse; will include nude video: Bombay High Court

The Bombay High Court last week observed that forwarding of a nude video is an offence under Section 67A of the Information Technology (IT) Act [Esrar Nazrul Ahemad vs The State of Maharashtra]. .Justice Bharati Dangre was of the opinion that the term "sexually explicit" under section 67A isn't limited to the act of sexual intercourse but would also include a video showing a person in the nude."The intention of the legislature in introducing Section 67, being publishing or transmitting obscene material in electronic form, cannot be restricted by construing the term ‘sexually explicit’ to only showing an activity of being indulging in sex," she held..The Court, therefore, denied anticipatory bail to a man accused of sending a nude video of a woman to multiple people including her husband on WhatsApp.The woman had approached Thane Police in April 2022 and filed a case against the accused, who was a friend of her husband.As per the complaint, she had developed intimacy with the accused which led to a sexual relationship.She categorically admitted in her complaint that the sexual relationship was established by her consent. While in the relationship, the applicant requested the complainant to share her nude video and though she was initially hesitant, on a promise that after watching the video, he will immediately delete it, she forwarded it on his WhatsApp. The applicant later assured her that the video was deletedHowever, during a visit to the accused's home, she was confronted with the footage by his wife and daughter who told her not to establish any relationship with the applicant.The victim then severed ties with the accused, but three years later, he reconnected with her by threatening her with the old video. Upon this threat, she again started meeting him.Despite the same, he shared the video with a number of others, including her husband and the video was widely circulated in her village.This prompted the woman to file a complaint.The accused was booked under Section 67A of the Information Technology Act. He the approached the High Court for anticipatory bail. The Court ruled that his claim that just a nude video would not be considered "sexually explicit" was wrong. The court relied on the definition of the phrase in the Oxford Dictionary to make its case."In any case, when the intention of the legislature was to do away exploitation of women or children or any person in electronic form by publishing or transmitting any obscene material, the term ‘sexually explicit’, cannot be said to be not covering activity in respect of which the accusations are made," the Court held. Noting that the allegations levelled against the man were serious as he exploited a woman by publishing her nude video and making it public, the Court held that the case requires his custodial investigation and refused to grant him anticipatory bail..[Read Order]