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The term “sexually explicit” under Section 67A IT Act not limited to sexual intercourse; will include nude video: Bombay High Court

Socio Legal Corp

Written By- Pretika Tiwari

[Esrar Nazrul Ahemad v. The State of Maharashtra]

The Bombay High Court refused to grant anticipatory bail to a man for forwarding a married woman’s nude video. The court observed that such an act comes under the ambit of the term ‘sexually explicit’ under Section 67A of the IT Act, 2000.

The defense, in their submission, claimed that the mere transmission of a nude video could not come under the purview of sexually explicit content. But Justice Bharati Dangre refused to accept this contention and stated that sexually explicit not only means sexual intercourse but it can also include a nude video. The court said, “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.”

The submission of the learned counsel that mere forwarding a nude video would not fall within the purview of ‘sexually explicit’ might not be correct”, the order stated.

Justice Dangre also observed that the motive behind the legislature was to protect women and children from being exploited and do away with any person in electronic form by publishing or transmitting any obscene material. Therefore, “the term sexually explicit cannot be said to be not covering activity in respect of which the accusations are made”, she said.

Since the accusations against the man were serious, as he exploited a woman by publishing her nude video, the court held that the case required his custodial investigation. Thus, the court passed the order to refuse the anticipatory bail plea to the man booked under Section 67A of the IT Act, 2000  and Section 354 of IPC. 

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