It begins with Tinder, you swipe right and it’s a match! You start talking regularly and are in the get-to-know each other phase. Soon the honeymoon phase starts and after a long wait he finally finds courage and asks you to send nudes. At that time do you think, is sexting even legal? Many people who engage in sexting remain unaware regarding the legality of it.
In India, sexting is as legal as physical intimacy. This blogpost makes readers aware of the legal provisions governing it.
Table of Contents
- What is sexting?
- What falls under the ambit of Sexting?
- Sexting with consent
- Sexting without consent
- Major sexting minor without consent
- Major sexting a minor with consent
- Sexting between minors
What is sexting?
Early 21st century blend of sex and text officially was added in the Oxford English dictionary to mean “send someone sexually explicit photographs or messages via mobile phone.”
Sexting has no legal definition in India. However, in recent times, the government of cyberlaw has laid down a list for some of the cybercrimes along with their indicative explanation and included the word “sexting” in that list which is to mean an act of sending sexually explicit digital images, videos, text messages, or emails, usually by cell phone.
So the question that rises is does that mean sexting is illegal? The answer is “No”. Just because an act is added to a list of cybercrime by the government, doesn’t need to have any legal consequence to it.
What falls under the ambit of Sexting?
Sexting literally means to chat in a sexual manner. There is no legal definition to conclude its inclusion or exclusion. However, it is crucial to understand the ambit of sexting and what does not mean sexting. One may define it as an act of sending any sexually explicit photographs, videos or even messages through a mobile phone to another “consenting” person.
Sexting would also mean that the explicit content is within the consenting parties and not published outside the consenting persons. It is pertinent to note that the victim can be a male or female and the law punishes anyone who publishes without consent under the information technology Act, 2000 (IT Act).
Section 67A lays down that “Whoever publishes or transmits or causes to be published or transmitted in the electronic form any material which contains sexually explicit act or conduct shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to ten lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees.”
Here, the law does not make any biases against man and rather it serves to be a gender neutral provision “and” punishes any person who publishes sexually explicit content in an electronic form.
Sexting with consent
To begin with, there is no law against it and neither is there enough precedent.
When you come to think about sexting, the first thing that pops in mind is two people sexting with consent. If such sexual content is sent to another person without consent, it would explicitively come under definition of sexual harassment.
Consent is the crucial element in deciding cases pertaining question of sexual abuse or harassment. In cases of sexual harassment, intention is not required to be proved as the mere act of harrasing is sufficient for conviction. Sexting is done when two people are consenting to send sexually explicit photographs or messages. If there is consent and no intention to offend the other sexually, no law can punish you. Therefore, sexting with consent would proffer no punishment.
Sexting without consent
Sexting without consent would in fact not mean sexting. As per Indian Penal Code, 1860, Section 354A lays down that showing pornography would mean sexual harrasement.
If a person harasses you by sending private parts or keeps asking you for sexual favours, it would mean the person is sexually harassing you and this would not result in sexting. In such a case, the man would be liable for imprisonment upto 3 years and fine or both. Other stringent provisions are also laid down in the IT Act.
Major sexting minor without consent
Once again, the term “sexting” denotes that both parties are consenting. However, if the consent is missing then it is not sexting, it is sexual harassment.
Sexting a minor under 18 years of age is illegal and would attract various criminal provisions, simply, because it is an offence under the Protection of Children from Sexual Offences Act, 2012 (POCSO).
POCSO came into force to protect children of under 18 years and under against offences of sexual assault, sexual harassment and pornography.
Section 11 of POSCO lays down definition of Sexual harassment.
A person is said to commit sexual harassment upon a child when such person with sexual intent,–
(iv) repeatedly or constantly follows or watches or contacts a child either directly or through electronic, digital or any other means; or
(vi) entices a child for pornographic purposes or gives gratification therefor.
Section 12 lays down punishment for sexual harassment with imprisonment of either description for a term which may extend to three years and shall also be liable to fine.
The complete Chapter III of POCSO deals with using children for pornographic purposes.
Section 2(da) Defines “child pornography” as any visual depiction of sexually explicit conduct involving a child which include photograph, video, digital or computer generated image indistinguishable from an actual child and image created, adapted, or modified, but appear to depict a child.
Section 14 and Section 15 lays down punishment for using Child for pornographic purposes and Punishment for storage of pornographic material involving child. Whoever uses child or children for pornographic purposes shall be punished with imprisonment for a term which shall not be less than five years and fine.
So, possessing nude images of teenagers is an offence in itself.
Section 67B of IT Act says that if a person transmits or publishes content which depicts children in a sexual act or conduct, then that person will be punished by imprisonment for a period which may extend to five years and with fine which may extend to ten lakh rupees. In case of a repeat offence, the person will be punished with imprisonment which may extend to seven years and also with fine which may extend to ten lakh rupees.
The above provisions of POSCO and IT Act are gender neutral. The penalty would be imposed despite the gender.
Major sexting a minor with consent
The Supreme Court of India, in the case of State of Madhya Pradesh v. Balu (2004) has held that “consent given by a minor is not considered to be valid consent in the eyes of law”.
Engaging with a child in a video, photograph or computer depicting sexual activity would mean child pornography under POSCO.
All the penalties applicable in case of sexting a minor without consent per se would be applicable even with consent.
Sexting between minors
Today, consentual sext between minors have become an accepted norm between teenagers. Any consenting sexual related activities between minors has always been in the legal grey area due to non recognition of ‘valid consent’ given by minors.
Recently, Madras High Court has shed a new light in a similar case. In the case of Sabari v. Inspector of Police, the court has said that “the consensual sexual activity between minors above the age of 16 years of age should not be considered to be a criminal activity.”
Since it was said as obiter dicta i.e opinion of the judge, it cannot be enforced as law however it does have persuasive value for future judicial decisions.
Therefore sexting between minors would mean illegal. However the court may take into consideration the relationship and consent between minors.
In a research conducted by the Psychology Department of the University of Utah, the findings showed that 1/3rd of the sample group did not think of the legal consequences and ramifications before sending sexual pictures or texts to another person.
While sexting is discouraged by society, it’s undoubtedly legal. It has also proven to boost confidence and have a positive impact in relationships.
- Cyber Crime Portal. ↑
- Information Technology Act, 2000, Section 66A, 67, 67A, 67B. ↑
- Indian Penal Code, 1860, Section 354 A. ↑
- Section 67B of Information Technology Act, 2000. ↑
- Appeal (crl.) 1273 of 2004 ↑
- Crl.OP.No.7615 of 2018. ↑
- A judge’s expression of opinion uttered in court or in a written judgement, but not essential to the decision and therefore not legally binding as a precedent. ↑
Thank you, Karan.
What if a major man and minor girl sexting with consent. Without any photo or video, just text, What are the charges.
That is an offence, right up.
Very well narrated, gives the reader a clear idea of what’s legal and what’s not.
Keep up the good work.
Thank you, Sandeep. We’re happy to write on topics which aware our readers on laws that are less discussed in the society.
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Hi i have one question.
Law says as below:
“Whoever publishes or transmits or causes to be published in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to one lakh rupees and in the event of a second or subsequent conviction with imprisonment of either description for a term which may extend to ten years and also with fine which may extend to two lakh rupees.”
As it says whoever publishes or transmits the material will be punished. And, in sexting we transmit the content then how can u say sexting is legal between consenting adults? Is there written anywhere that consenting adults can do it? If not then how sexting is legal? Kindly explain.
“Whoever publishes or transmits or causes to be published in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to one lakh rupees and in the event of a second or subsequent conviction with imprisonment of either description for a term which may extend to ten years and also with fine which may extend to two lakh rupees.”.
As in sexting we transmit the content then how can you say that sexting is legal between consenting adults? Where is it written that two consenting adults can do sexting or share explicit content? As laws says whover will transmit the content will get punished. There is no where mentioned about consent. So from where u get to know about the consent? kindly reply.
What is being done behind closed doors with the consent of the parties without causing any harm or nuisance etc to any third-party, is not an offence unless reported. If two or more consenting adults are doing something of a sexual nature and if it doesn’t concern a third-party they who is going to file a complain? In fact, how is anyone even supposed to find out anything?
Hi thanks for replying.
The point is not that whether someone will know or not. The point is whether sending sexually explicit content is legal or illegal. As per the IT act transmitting, publishing
of sexual explicit content is illegal. In this article its mentioned that consentual sexting is legal. My question where is it written in IT act that consentual sexting is legal. Kindly share the source of this information? in which law is it mentioned? If its not mentioned then how can u say that consentual sexting is legal? Kindly reply.
Not all laws are written in the statutes. We’d like to clarify this with an example. Let’s say someone parked their car in front your house and now you’re restrained within your house. This definitely, amounts to wrongful and unlawful restrain. You can lodge a complaint against them. However, if this car is owned by your friend and he has your implied consent, then this is not an offence. Similarly, when sharing explicit content over the web in personal chats, if the sharing of content is expressly consensual then it does not amount to an offence.
This is a way of interpreting the law. Hope that clarifies it for you.
Hi, I don’t understand why your website is saying that consensual sexting is legal. All other websites says that sexting is illegal. There is no point of consent there. Even cybercrime.gov.in website of Government says that sexting is a cyber-crime. I checked the IT act section 67 and 67-A there is nowhere mentioned the word consent. It just says whoever sends the the sexually explicit content will be punished.
As Í understand sexting between the consentiñg adults ís nót a críme. But what if a wímañ fírst gives her cónsent añd later complaíñs tó Pólice¿
Hi, Ravi! In such cases, the investigation agency (police) will find out the truth and proceed accordingly. If it turns out that the one party filed a false and frivolous complaint, then the you may go ahead and file a complaint under Section 211 of the Indian Penal Code. Hope that helps.
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[…] to data from a study conducted by the University of Utah’s Psychology Department, 1/3 of the sample group did not consider the legal penalties and ramifications before sending […]
Hi admin, can I ask the below question & plz reply if u have the answer :
There are lot of Indian cam girls doing nude show on Skype/ hangout .So my exact question is if an Indian boy pays money through upi (I.e. gpay or phone pay) to watch the show privately, is it a crime for the boy as he is kind of purchasing this show or the law is against that girl who is taking money for this?
Can I ask something specifically on cybersex law India.. Actually I commented here but I am not finding the question. So just to ask you can I ask the question to u in person or here?
What if a major man and minor girl sexting with consent. What are the charges.