This article is written by Aarlin Moncy, from HILSR, School of Law, Jamia Hamdard. This article will give you a brief knowledge about what constitutes an online harassment and what are laws available to prevent offences related to online harassment against women.
Table of Contents
Introduction
We are living in an era of digitalization, where everything is becoming digital. Take for example, the current situation of COVID-19 pandemic, nobody thought online education/classes and even online court proceedings would take place so early and that too at the beginning of 2020. We can even say that we have 2 worlds within one world. i) The physical world and ii) The online world. The Internet has changed everyone’s life drastically. Decades ago, communication, trade and commerce with people outside one’s own country was not at all easy as it is today. The entire world is united again but does it mean that we don’t have to worry about anything? Everything comes for a price. Here, the price is our privacy and our data. In this article, we will discuss how the online platform which was developed for the betterment and ease our life and work but, how it is actually being used. In India, over 41% users are sexually and mentally harassed online. Previously women were not safe if they were outside and now they’re not even safe at their home.
What can the law do about online harassment
The laws are there to prevent such offences and protect the interests and rights of the people. Especially the laws to protect women’s rights are pretty much stringent but not absolutely strong enough to end such offences against women. These laws promise to maintain a balance and keep a check on such offences although we can’t see any such progress in our country.
If we read provisions and laws protecting an individual from harassment whether in the outdoors or inside cyberspace, we come to know that the majority of these laws are not gender-neutral. Especially the provisions mentioned in the Indian Penal Code,1860. Those provisions are not only stringent but are only applicable to women. If we think that laws only can bring a change in society, then we are absolutely wrong. Although it’s both the legal system and the education system’s sole responsibility to bring a change in our society. Considering the current era, we are living in a digital era and we need to be extra cautious and with that, these laws should be revised more often as the society is changing at a fast pace and the offences are changing too.
Analysis of Section 354D of the IPC
Section 354D of the Indian Penal Code, 1860 talks about Stalking as a criminal offence. This provision was inserted into the Act in 2013. It defines “Stalking” as, if a man who follows a woman, contacts her or tries/attempts to contact her and notwithstanding a clear refusal/rejection from the woman’s end or tries to do the same on any of the online platforms. Then the person commits a criminal offence called “Stalking.” This provision provides us with 2 scenarios: (i) Physical Stalking and (ii) Cyber Stalking.
In physical stalking, physical confrontation by the stalker is necessary. But not in the case of cyberstalking. In physical stalking, it becomes easier to track/catch the predator but not in the case of cyberstalking, as it is not easy to track the predator in cyberspace, it is very easy to hide your identity and your location on the web. If we read the provision properly again, we get to know that this provision is only meant for women and the Section tries to prove that only a man can stalk and only women are at risk of being stalked both physically and in cyberspace. It’s not a gender-neutral provision. Although there are few exceptions available too in this provision, they are as mentioned below. If the man proves:
(i) What he did was for the purpose of preventing crime and he was given a legitimate reason to talk to a woman and this responsibility was given to him by the State, or
(ii) His actions were in accordance with some law, and
(iii) His act was reasonable and justified at that time.
The final clause states the criminal liability of the person who is accused of stalking. If the man is convicted of stalking for the 1st time then, he shall be punished with imprisonment for a term which may extend to 3 years and also will be liable and charged to pay some fine and if the man gets convicted again for the 2nd or more times then, he’ll be punished with imprisonment for a term which may extend to 5 years and fine too.
How does Section 499 of the IPC protect a person from defamation
Section 499 of the Indian Penal Code, 1860: It defines defamation as, if anyone either by their mouth, or by signs or by any way of visible representation, accuses the other person and publishes such accusation, with the intention to harm the other person, or having a good understanding that such accusation will harm/hurt the reputation of that person. This is called Defamation, but there are 10 exceptions to it too:
(i) If the accusation made by the person against another person and it is for the public good, then such accusations made or published doesn’t amount to defamation. The question of fact remains, if or not the accusation is for the greater good/public good?
(ii) An act was done by a public servant in good faith.
(iii) It is not defamation if we express ourselves in good faith regarding any public question/opinion.
(iv) It will not amount to defamation if true facts or reports from a court proceeding are published.
(v) It is not defamation if you express in good faith your opinion regarding the merits of a case decided by the court of law.
(vi) It is not defamation, if you express in good faith, your opinion regarding any public performance (author of a book, public speaker, Actor, singer, etc).
(vii) It is not defamation, if a person under a contract or any law, has authority over the other person and person can criticise the other person under him, regarding matters related under the concerned authority.
(viii) It is not defamation if the accusation is in good faith.
(ix) It is not defamation if the accusation is made in good faith for the protection of one’s own interest or any other person’s interest.
(x) It is not defamation if a person is cautioned in good faith about another person.
In Bilal Ahmed Kaloo v. State of Andhra Pradesh (1997), it was held that a person is not liable under this provision if he/she has not published the accusation.
Does trolling come under the ambit of online harassment
There are no specific laws made for trolling but does that mean trolling is not an offence? Although trolls can get really toxic at times. We have discussed both stalking and defamation at the beginning of this article, but this topic is still untouched and trolling is very prevalent in this era of digitalization. Before declaring trolling as an offence, let’s first define it and then try to analyse it further. Trolling can be done by either commenting on a photo/video or posting a photo/video but what’s wrong in that? Well, the comments and photos/videos uploaded are not the usual ones. They are very provocative in nature and with an intent to cause harm, hurt feelings and sentiments of a person/group and to bring damage to their reputation. In the online media like Facebook, Instagram, Twitter and YouTube, trolling has been there for a while. Trolling is done usually through memes. Memes are nothing but just funny posts to make people have a good time while surfing through their feeds. But sometimes these memes get little personal and are very defaming.
Is trolling, a part of our free speech or a cyber offence? The answer to this would be both, yes and no. Trolling can become a cyber offence when the primary objective of the troll shifts to hurting a person’s feelings and sentiments. Although feelings and sentiments are very subjective, a person who has just trolled someone can defend himself/herself by saying that it was his/her right to freedom of speech and expression (Article 19). But will this defence be accepted in the court of law? Every person has a right to express in his/her opinion and nobody can put any sort of restriction on them. But we need to understand the basic difference between free speech and hate speech is that free speech is an opinion/criticism but hate speech is just spreading hate, creating distress among the people. The other important thing to be noted is, not all memes are defamatory but trolls are defaming and annoying at times, they spread hatred and fear in the social media platforms. The basic difference between memes and trolls is that trolling can be done through posting memes but memes can be posted without trolling a person too. The next thing that we all need to understand is that our freedom of speech and expression is not absolute, there are certain restrictions on it too. One person’s freedom can’t be a barrier to another person’s freedom, that’s why there is a reasonable restriction’s clause present. Similarly, whether in cyberspace or outside, we need to make sure that our actions shouldn’t either disrespect or annoy others. There are no anti-trolling specific laws as such but there are few Sections in the Indian Penal Code, 1860 that are against online and offline harassment. The reason why trolling is a serious concern because it leads to cyberbullying or online harassment and that could lead to depression, anxiety and many other mental health complications.
Before 2015, Section 66A of the I.T Act, 2000 was not declared unconstitutional. It was only after the landmark judgement of Shreya Singhal v. Union of India. This particular Section was struck down and was held and declared unconstitutional because this Section stated that, if any person posts anything on the social media that annoys another person/group then you’ll be charged under this Section and will be punished with imprisonment which may extend to 3 years and fine. If we read this Section properly, what we can interpret from this provision is: Probably this was one of the first anti-trolling provisions in our country but if trolling isn’t right always, then a person who is trolling should be really careful while doing so.
The question that comes in our mind is, why was this provision that prevented trolling declared unconstitutional? To answer this, let’s dive into the section 66A and find out the keywords: Annoyance, Inconvenience. The problem with this provision was that this provision gave absolute powers to the complainant, the reason being, words that annoy or bring inconvenience to a person is too subjective. This totally differs from person to person because it depends upon a person’s patience level, whether he/she is getting annoyed by the post or not. The Section meant if a person gets annoyed by your action on any social media platform then you’ll be booked and charged under this provision. This was completely against our free speech, this provision was unconstitutional because it was violating our fundamental right to freedom of speech and expression [Article 19(1)].
We don’t need laws to put restrictions on anyone’s free speech and opinion but we need laws to prevent hatred (both communal and online hatred), fear and different kinds of harassment, whether online or offline. Trolling is a serious issue because of the fact that the Internet and social media are very important and influential elements in an individual’s life, that’s why the right to access the Internet is now a part of our fundamental right to freedom of speech and expression. We can’t deny this, that trolls can affect a person’s mental health, both professionally and personally, they might even take sudden irrational and immoral decisions like ending their life by committing suicide because of extreme mental pressure. This will bring two more provisions of the Indian Penal Code, 1860 in the picture. Section 305 and 306. These provisions define and explains further about abetment of suicide. Section 305: Abetment of suicide of a minor/child, a person under 18 or a person of an unsound mind, intoxicated person, commits suicide and the person who is liable for the commission of this offence is called the abetter and is fully responsible. The offender shall be punished with death/life imprisonment/imprisonment not less than 10 years with a fine. Whereas Section 306: Abetment of suicide of a person above 18 years of age. In this provision, if a person commits suicide then the one behind the commission of such offence shall be imprisoned for more than 10years and fine.
We can’t only focus on the laws pertaining to online harassment, but we also need to focus on the implications of such harassment on an individual and the laws applicable to the offenders. Both awareness about this cyber issue and preventive measures at the same time should be taken. We can make fun or troll a person against his/her will but we shouldn’t forget the implications or consequences of these trolls. One last thing to cover about trolling is that trolls can influence a person to an extent that the audience will get easily convinced and will start believing what trolls want them to believe.
Important case laws
Suhas Katti v. State of Tamil Nadu, 2004
It was the first case in India under the most controversial provision of I.T Act, 2000; Section 67 that is related to publishing or transmitting obscene material. In this case, the accused was the victim’s friend and even liked her and wanted to get married to her, but the victim rejected him, as she didn’t feel the same for him. Later, the girl was married to another guy but their marriage didn’t work and they filed for a divorce. When Suhas(accused) got to know this, he tried to talk to her again and his intentions were the same, as he still wanted to get married to her but he was rejected once again. This provoked Suhas and in order to take revenge against her, he started to harass her online by sending emails to random people in the name of the victim, many people after seeing the mails, thought it was from the real girl, called her up and asked for her rates, as they thought that the girl was a prostitute and was sending emails to her potential customers. Later, the victim filed a complaint and Suhas was charged under Section 469, 509 of the IPC and Section 67 of I.T Act and was sentenced to rigorous imprisonment for 2 years under Section 469 IPC, 1-year simple imprisonment under Section 509 IPC and 2 years imprisonment under Section 67 I.T Act (5 years in total) and a total of ₹5000 as fine.
Vishakha and others v. State of Rajasthan, 1997
As per the facts of this case, Vishakha and a group of women filed a PIL against the state of Rajasthan and the Central Government. This PIL was filed to enforce Article 14, 19 and 21 of the Constitution of the working women for the objective of gender equality, right to work with dignity and safeguard against sexual harassment. This PIL was filed after Bhanwari Devi was brutally gang-raped for stopping child marriage. This petition resulted in the infamous guidelines called the Vishakha Guidelines, it defined sexual harassment at workplace and provides protection against it.
Dy.Inspector Gen.Of Police & Anr vs S.Samuthiram, 30 November 2012
With this case, the court stated and provided 8 guidelines to eradicate the offence of eve-teasing.
Apparel Export Promotion Council v. A.K. Chopra, 1999
In this case, the court declared that the offence of sexual harassment leads to complete violation of the fundamental rights of the women(Article-14,19,21)
Priyadarshini Mattoo case, 1996
As per the facts of this case, Priyadarshini was only a 25year old law student, who was brutally raped and murdered. The accused, Santosh Kumar, son of the Inspector General of Police. The victim in 1995 had complained that Kumar was harassing and stalking her, she was even provided with personal security at that time. On 6th October 2010, the apex court changed his death sentence to life imprisonment.
Shri Deu Baju Bodake v. The State of Maharashtra, 2016
In this case, the Hon’ble High Court of Bombay investigated a suicide case of a woman, and the reason behind her suicide was the accused’s deliberate and continuous stalking and harassment. The accused harassed the woman in her workplace and kept on asking her to marry him. The accused was charged under both abetments to suicide (Section 306 IPC) and stalking (Section 354D).
Ripan Deol Bajaj case, 1988
The other name for this case is The Butt-Slapping Case. This was a very controversial high profile case. The accused was a Director General of Police in Punjab and was found guilty of molesting Ripon Deol. The Hon’ble High Court of Punjab and Haryana charged KPS Gill under Section 354 IPC(outraging the modesty of a woman) and Section 509 IPC. His 3months rigorous jail sentence and 2 months simple. His 3months sentence was converted into probation by the court with a fine of ₹2,00,000.
Important provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013.
Section 3.Prevention of sexual harassment: The subsection/clause (1) of Section 3 of the Act, guarantees that No women shall be sexually harassed at her workplace. Section 3(2) provides five conditions that would amount to sexual harassment:
(i) Implied/explicit promise made to the woman of treating her especially in her work.
(ii) Implied/explicit threat made to the woman, intending to cause harm in her work.
(iii) Implied/explicit threat made to the woman about her present or future job status.
(iv) Interference in her work, creating an uncomfortable, offensive environment for her.
(v) Treating the woman in a humiliating manner that will affect her health and safety.
Section 4 (Constitution of Internal Complaints Committee): It is important to constitute a committee known as the Internal Complaints Committee in every workplace by the employer.
Section 9: (Complaint of sexual harassment): Any woman, who has been a victim of sexual harassment at her workplace, can write a complaint of sexual harassment to the Internal Committee within a period of 3 months of the concerned act and if the woman was not able to file a complaint within the stipulated time, even then also she can file but then, the Internal Committee will see if the delay was due to some genuine reason or not.
Section 10: The Internal Committee before starting an inquiry shall try and request the woman to settle the matter between her and the respondent and no monetary settlement is allowed.
Section 11 (Inquiry into complaint): There shall be an inquiry into the complaint and if the case exists then the complaint can be forwarded to the police within 7 days for registering a case under section 509 of IPC.
Section 14 (Punishment for false or malicious and false evidence): If a woman maliciously accuses a man of sexual harassment, then the employer or district officer can take the required action against the woman.
Section 16 and 17: Prohibition and punishment of publication or making known contents of complaint and inquiry proceedings: The identity of the complainant (woman) shall not be leaked/published and if the person entrusted to protect the identity of the woman, fails to do so then, he/she shall be liable for a penalty.
Penalties and remedies under the law for online harassment of women
Penalties for online harassment of women:
- Section 292A, IPC: Printing, etc of grossly indecent or scurrilous matter or matter intended for blackmail. A person charged under this Section shall be punished with imprisonment may extend to 2 years/with fine/with both.
- Section 354A, IPC: Offence of Sexual harassment of a woman. A person charged under this Section shall be punished with rigorous imprisonment for a term which may extend to 3 years/with fine/with both and if the person commits the offence specified in clause(iv){making sexually coloured remarks} of sub-section (1) shall be punished with imprisonment which may extend to 1 year/fine/with both.
- Section 354D, IPC: Offence of Stalking. A person charged under this Section shall be punished with imprisonment which may extend to 3 years, on the first conviction with fine and on the second or subsequent conviction, the imprisonment may extend to 5 years with fine.
- Section 499, IPC: Offence of Defamation. A person charged under this Section shall be punished with imprisonment which may extend to 2 years/fine/with both.
- Section 507, IPC: Criminal Intimidation by anonymous communication. A person charged under this Section shall be punished with imprisonment which may extend to 2 years.
- Section 509, IPC: Act intended to insult the modesty of a woman. A person charged under this Section shall be punished with simple imprisonment which may extend to 3 years and fine.
- Section 66E, I.T Act: Offence of violation of privacy. A person charged under this Section shall be punished with imprisonment which may extend to 3 years/fine-₹2,00,000/- or with both.
- Section 67, I.T Act: Publishing or transmitting obscene material in electronic form. On the first conviction, the person shall be punished with imprisonment which may extend to 3 years and fine which may extend to ₹5,00,000/- and on the second or subsequent conviction, imprisonment may extend to 5 years and fine may extend to ₹10,00,000/-
- Section 67A, I.T Act : Publishing or transmitting material containing sexually explicit acts, etc in electronic form. On the first conviction with imprisonment which may extend to 5 years and fine which may extend to ₹10,00,000/- and on the second or subsequent conviction with imprisonment which may extend to 7 years and fine which may extend to₹10,00,000/-
The only remedy against such offences is being vocal about them and by reporting such offences as soon as possible. Complaints against cybercrime can be filed anywhere because cyber offences do not have any jurisdiction. There are 3 available places where an aggrieved person can go:
- Cyber Cells: These are specially made for investigating and prevention of cybercrimes. They come under the same agency of C.I.D.
- Police Station: Now if there is no cyber cell nearby, a person can still file an F.I.R at the nearest police station.
- The National Commission for Women: This organization works differently as compared to the cyber cell, as they team up with the police and help the victim. The commission has the authority to set up an inquiry committee, conduct spot inquiries, interrogate, collect evidence, etc.
Conclusion
Online harassment of women is not a new offence, rather only the place has changed. Earlier the harassment was in the streets, schools, colleges, house, workplace, etc. But now the only difference is the change in the place of the offence, it has now shifted to the online platform. In India, we do have laws to prevent such grave offences but the only problem is our generation’s ignorance. We need to find the root cause of these offences, then only we can clear it right from the bottom. Nowadays people are using the online platform to fight against and bring justice to the people who were the victims of harassment. The 2018s #MeToo movement, 2020s Bois Locker Room incident are the very recent and controversial incidents that have shown us how the current generation is addicted to cyberspace and how they are misusing it. Harassment of both women and men shall not be tolerated and it’s high time that the law-makers amend the above-mentioned laws and make them gender-neutral.
References
- http://docs.manupatra.in/newsline/articles/Upload/455C1055-C2B6-4839-82AC-5AB08CBA7489.pdf
- https://www.thehindu.com/sci-tech/technology/internet/8-in-10-users-have-faced-online-harassment-claims-survey/article19795668.ece
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