Sexting can occur between any two parties, anywhere in the world, and is a global phenomenon. Additionally – owing to its sexually expressive and liberating nature, sexting is generally frowned upon in Indian society. Culture, tradition, holiness, purity, gender, age, and notions of “cleanliness” are some of the components that play a role in determining whether or not it is “okay” to sext. Thus, owing to its complex nature, it becomes crucial to know what sexting is and to define it.  

 

According to the National Cyber Crime Reporting Portal of India, sexting is “an act of sending sexually explicit digital images, videos, text messages, or emails, usually by cell phone.” 

 

Thus, it can be said that sexting includes within its ambit (bearing in mind that the transaction involves two consenting adults) the exchange of sexually explicit videos, photos, or even text messages between two parties. 

 

While sexting has come to be known as the ‘Technological Evolution of a  Sexual Revolution’, India is yet to fully accept its prevalence, specifically define it, and establish specific laws around sexting. It becomes vital to be aware of them, especially if one is considering indulging in sexting. Thus, this article will explain the law on sexting and various scenarios in which sexting can have severe consequences for those involved. This is because sexting is not technically legal in India. Perhaps at this point, one can question how effective it would be for the law to criminalize the sexual expression and liberty of individuals. 

 

Understanding Sexting in India 

The act of sexting involves several components. Sexting raises critical questions about privacy, moral biases, assumptions regarding one’s sexuality, as well as the mutual consent of the parties. Concerning the law on sexting, there exists a dissonance between one’s freedom to express their sexuality and one’s right to privacy. While on the one hand, sexting is illegal in India due to many cultural perceptions; criminalizing it takes away one’s right to privacy and sexual expression. Therefore, it is essential to question whether or not the act of sexting should be a “crime” to begin with, as with it comes several legal consequences for individuals indulging in the act. A look into the specific laws in India on sexting would shed some light on the matter. 

Sexting and the Law in India 

 In addition to having feelings of guilt, shame, and anxiety, sexting can have severe consequences legally. In India, exchanging and sharing sexually explicit images, messages, or videos violates privacy and can amount to sexual harassment. However, sexting is not legally recognized and has not been defined explicitly by the law. However, these provisions broadly address sexting: 

 

• The Information Technology Act, 2000: This act prohibits and punishes creating, publishing, or transmitting material that portrays minors in a sexually explicit manner. 

• While the IT Act 2000 addresses the issue of child pornography, POCSO was introduced to address sexual offenses against children. This law is stringent and penalizes anyone who involves children for their sexual gratification through digital means. 

• The Indian Penal Code, in this regard, also addresses certain aspects of sexting. It penalizes anyone who owns sexually explicit material of themselves or anyone else. 

 
The Indian law on sexting is, therefore, highly restrictive. Sending, receiving, storing, and transmitting any sexually suggestive or explicit photos or content is illegal. One can be charged with crimes of pornography and sexual harassment. Ideally, it would still be risky if one has provided consent to those photos being stored. The law does not differentiate between pornography and individual sexual expression in the form of photographs. A more incriminating scenario would be where the images stored are that of a minor – as this can easily be perceived as child pornography in the eyes of the law 

 

At this point, the concept of ‘consent’ becomes essential, even from a legal standpoint. One may believe that they are safe in the eyes of the law as long as there is the mutual consent of the other person concerned. However, this isn’t the case. Even when a person has agreed to have their pictures clicked or have themselves sent you the picture, it can still attract legal penalty and be considered pornography in the eyes of the law. 

 

This means that one cannot click, send or store a sexual picture of yourself, even if you decide you want to, and even if you’re old enough to consent (agree) to other sexual activity.  

 

Therefore, while sexting may not be defined or addressed by any law in India, it may attract the following provisions depending upon the modus operandi and the consequences:  

 

Information Technology (IT) Act, 2000 (amended in 2008) 

 

• 66E– This section lays down the punishment for knowingly or intentionally capturing, transmitting, or publishing the private areas of a person without their consent in a circumstance where they can have a reasonable expectation of privacy and of not being photographed, whether in a public or a private place. 

 

• 67– This section addresses obscenity by saying, ‘Whoever’ transmits, publishes, or causes to be transmitted or published any material that is ‘lascivious’, or which appeals to the ‘prurient interest’ is punished under this section. 

 

• 67A– This section addresses sharing of sexually explicit contents. Whoever publishes or transmits any material which contains sexually explicit material or conduct shall be punished on first conviction with imprisonment for a term which may extend to five years and with fine which may extend to ten lakh rupees. In the event of second or subsequent conviction, they may be penalized with imprisonment for a period which can extend to seven years and also with fine which may extend to ten lakh rupees. 

 

• 67B– This section addresses punishment for child pornography, and this may be the closest provision for sexting offenses for teens and children. While the section is quite extensive, in the context of sexting, it penalizes ‘whoever’ transmits or publishes any material that depicts children in an ‘obscene’ or ‘sexually explicit’ manner. Recording your own or another’s sexual abuse on children is also criminalized under this section. 

 

Protection of Children from Sexual Offences (POCSO) Act, 2012 

• 13– This section defines ‘child pornography’ as any person using a child for sexually gratifying purposes, in circumstances that depict the child’s sexual organs, where the child is used in real or simulated sexual acts, or when they are depicted in any obscene or indecent manner. 

 

• 14– This section states the punishment for the offense in the previous section. 

 

• 15– Broadly, this section criminalizes the possession or storage of child pornography by any person intending to transmit, propagate or distribute it. 

 

Sexting among teenagers is a global and common occurrence. In light of how big a sexual revolution has become, sexting is also a means for adults to express their sexuality. However, in India, it is illegal to possess, distribute, or manufacture pornography involving minors – according to the Information Technology Act. Adolescents who distribute this material amongst themselves can also be punished and liable to 10 years in prison.  

 

Sexting is often misconstrued to be synonymous with “child pornography”, and two cases paved the way for this – Osbourne vs. Ohio (495 US 103), 1990, and Ashcroft v Free Speech Coalition (535 US 234 2002). In the Osbourne Case, the Ohio police found photographs in Osborne's home depicting a nude male adolescent posed in a sexually explicit position. Osborne was convicted. Similarly, a minor is protected by the law regarding pornography and the distribution of sexually explicit material. 

 

If seen in the light of creating sexually explicit content individually, the Information Technology Act 2000 can be attracted. However, there are no known reported cases for the penalization of those who take pictures or carry sexually explicit content of themselves – primarily because in Criminal law, the intent behind the crime is vital and is taken into consideration. S.354C of the IPC, therefore,  mentions the following:  

 

• “... when the victim is doing a sexual act that is not of a kind ordinarily done in public”; 

• the second explanation says “where the victim consents to the capture of the images or any act, but not to their dissemination to third persons.” 

 

Therefore, this provision may prove to be useful from a defense standpoint for the sexter. Sexting is an intimate act of trust and respect between the sender and receiver, and the intent matters. Where the sext was sent to evoke arousal from the receiver, they may have their rights in place via Section 354 of the IPC. But, while considering the second point mentioned above, the provision intends to say that the punishment is applicable when the information has been disseminated without one’s consent or knowledge and where they have not agreed to disseminating their images.  

 

Speaking from the viewpoint of women’s safety, Debrarati Halder and K.Jaishankar state that “the second explanation to S.354C of the IPC further safeguards a woman’s interests when she has consented in capturing sexual acts with her partner.”  

 

This type of dissemination occurs due to two main reasons:  

 

(a) unauthorized access to the device of the woman or her partner, which was used to capture/store the images and illegal dissemination of the same for making profit out of it either by way of sextortion,13 or blackmailing, and criminal intimidation and  

 

(b) dissemination of the images by the male partner himself due to anger or frustration over the woman, and the same dissemination is done in the form of revenge porn.  

 

Unfortunately, there exists no separate law that deals with “revenge porn” as of yet, an issue that requires addressing in India, as well. 

 

In India, the exchange and sharing of sexually explicit images, messages, and videos (primarily applicable to those under 18) violates privacy and can amount to sexual harassment. This is punishable by law. While sexting is not addressed or defined by any law, it may still attract specific provisions, as discussed above. A landmark Supreme Court judgment, Justice Puttaswamy v. Union of India, also recognized that consensual sexual acts fall within the purview of the Right to privacy under Article 21 of the Constitution. It is the law of the land and requires legal recognition. Thus, there is a strong need for understanding and incorporating the element of consent while prohibiting sexting. Specific provisions for the act must be made, and consensual sexual acts among adults must be recognized. Although this may be a straightforward argument concerning adult sexting, it may be more complicated in the case of consensual acts of sexting among teenagers and minors – a deep consideration that needs to be given by lawmakers. 

 

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