Introduction
In the instant case of Sudhir Kumar v. The State of NCT of Delhi 2025, Hon'ble Justice Swarna Kanta Sharma, presiding over the matter, focused on the "extent of consent in a sexual relationship" and emphasized that 'consent to engage in the consensual relations does not equate and accords permission to record and disseminate such private moments on the internet, especially in the manner which is inappropriate and derogatory'.
Facts of the case:
The complainant alleged that she was acquainted with the accused at her sister's home, he was a colleague of complainant's brother-in-law and he had given the complainant ₹3.5 lakhs to enroll in an educational course, which the complainant had promised to repay after securing a job. Subsequently, the accused started blackmailing her and compelling her to fulfil his sexual demands. The complainant had accepted all the demands of the accused. The accused had also record a video of the complainant where she is forced to say that she has received five lakh rupees from the accused. Later on, the accused started defaming her by sending her videos to her relatives and friends. The situation escalated and came to notice when the accused purportedly shared these recordings on various social media platform such as Facebook, Instagram and WhatsApp.
An FIR bearing number 72/2024 was registered on January 17, 2024 by the complainant, thereafter the accused was arrested on January 20, 2024.
The Delhi High Court addressed several critical issues in the present case:
- Whether a women's consent to engage in sexual relation extends to the recordings or sharing of the intimate moments?
- The complainant a married woman, alleged that the accused initially provided financial assistance and later coerced her into sexual activities by threatening to disclose intimate recordings.
Legal landscapes governing sensitive online content:
There are several key provisions under the India Law that prohibits the dissemination of the obscene content and which protects the privacy, dignity and personal autonomy of a woman.
'Obscenity' in the online content is governed under Bharatiya Nyaya Sanhita, 2023, and the Information Technology Act, 2000.
- Section 66E: Punishment for violation of privacy, IT Act, 2000:1
Any person who, intentionally or knowingly captures, publishes or transmits the image of a private area of any person without his or her consent, under circumstances violating the privacy of the person, shall be punished with imprisonment for up to three years or with fine not exceeding two lakh rupees. Or with both in some cases considering the gravity of offence.
- Indecent Representation of Women (Prohibition) Act, 1986:
The purpose of this Act is to prohibit the indecent depiction of women which is derogatory, denigrating, or harms public morality.2
- Section 77 of BNS replaced Section 354C Voyeurism of
IPC:3
Whoever watches, or captures the image of a woman engaging in a private act in circumstances where she would usually have the expectation of not being observed or disseminates such image shall be punished.
Applicability of the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021 (amended on April 06, 2023)
As per the Rule 3 and 4 of the above-mentioned guidelines, the social media platforms shall observe the following due diligence while discharging their duties4:
- Inform the user of computer resource not to display, upload,
publish, transmit, or share any information that:
- is defamatory, obscene, pornographic, pedophilic, invasive of another's privacy, including bodily privacy, insulting or harassing on the basis of gender, libelous, racially or ethnically objectionable, relating or encouraging money laundering or gambling, or otherwise inconsistent with or contrary to the laws of India;
These provisions collectively aim to deter the unauthorized dissemination of intimate content and provide avenues for legal recourse for the victim.
- Article 21 of the Constitution of India- Right to Privacy:
-
- In the landmark judgment of Justice K.S. Puttaswamy
v. Union of India 20175 affirmed the right
to privacy as a fundamental right under article 21 which includes
protection against non-consensual dissemination of the private
content.
The court held "Even if the videos were recorded with consent, sharing it without the permission is a violation of privacy" - v. Union of India 20176: The petitioner sought removal of her photos and videos uploaded without her consent from various pornographic websites. The Delhi High Court directs search engines and websites to take down such offensive content and emphasizing the Right to Privacy.7
- In the landmark judgment of Justice K.S. Puttaswamy
v. Union of India 20175 affirmed the right
to privacy as a fundamental right under article 21 which includes
protection against non-consensual dissemination of the private
content.
Courts observations:
Hon'ble Ms. Justice Sharma, in her judgment dated January 17, 2025, underscored that even if there was initial consent for sexual relations, it does not extend to the recording and disseminating of the private moments on the Internet. In the words of Court "Even if the consent for physical relations had been given at any point of time by the complainant, such consent cannot, in any manner, be considered as consent to capture and disseminate her inappropriate videos on social media platforms. Consent to engage in physical relations does not extend to the misuse or exploitation of a person's intimate moments or their depiction in an inappropriate and derogatory manner".8
The Court further highlighted that the "accused's actions of recording and sharing of the complainant's private moments constituted a severe violation of her privacy and dignity. Such misuse of the private content, especially when used as a tool for coercions and blackmailing a woman was deemed unacceptable and beyond the scope of any consent that might have been given in a physical relationship".
Surbhi Gandotra, Associate Advocate at S.S. Rana & Co. has assisted in the research of this article.
Footnotes
1. Section 66E of Information Technology Act, 2000
2. Section 3 of Indecent Representation of Women (Prohibition) Act, 1986
3. Section 77 of Bharatiya Nyaya Sanhita, 2023
4. www.surveyofindia.gov.in/webroot/UserFiles/files/it-rules-2021–389746.pdf
5. JUSTICE K S PUTTASWAMY (RETD.), AND ANR. v. UNION OF INDIA AND ORS. (2017)10 S.C.R. 569
6. X-v-union-of-India-and-others-Delhi-high-court-case-analysis/
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