Author: Paikar Mustafa
Law Graduate, 2019
Law College Dehradun, Uttarakhand
We are living in an era of inevitable digitalization. The advancement of technology and human dependence on it, goes hand in hand. The internet has become a global phenomenon, the widespread use of the internet knows no bounds and the importance of it can be gathered from the latest judgment of the Apex Court wherein the right to access the internet was held to be a fundamental right implicit in Article 19, which enjoins certain freedoms to the citizens. The world of the internet is brimming with information easily accessible and available and with the fastest communication, sharing and exploring of it comes handy. The internet and technological advancements could not remain clear of the criminal activities that are against the basic ethos of using technology. The seeping in of crimes using the internet as a means and grounds for their effect came to be known as cyber-crimes. For the acts which are regarded as a crime, there are penal laws enacted by the state punishing the crimes based on their gravity. The cyberspace was altogether a new domain for the recognition of law which initially went unnoticed but the steep increase in crimes especially targeting women, girls and children of tender ages was urged to be met with amendments in existing penal law statutes and drafting a new law which could prove helpful in putting a check against these dilating cybercrimes. Cyber-crimes are difficult to classify with conventional methods. Particularly, crimes against women are sexual and discriminative as evident from the societal structure that was built on uncontested patriarchy. The essentiality of having a profile on Internet platforms makes novice females acquainting themselves with technology a vulnerable target, even at a bigger level the cyber-predating is becoming a tool for exploiting women. Thus, cyber-victimization, in general, has become a new form of crime with no specific location needed for the commission, and a place as safe as the home is targeted via a computer screen or mobile phone, raising an alarm of insecurity among women. Let us look into some form of cyber-crimes committed against women, the extent of remedy and punishment the law provides for the victim and perpetrator, respectively.
CYBER CRIMES AND LAW
Cybercrime or “Computer Crime” defined by Black’s Law Dictionary as, “crime requiring knowledge of computer technology, such as sabotaging or stealing computer data or using a computer to commit some other crime”.
Cybercrimes against women are mostly the product of desperation, unlawful and immoral expectations from women and considering them entities for pleasure’s sake. Sending obscene emails, messages, videos, unwanted requests to be friends on social media, morphing images are some amongst others to begin with. Blackmailing, cheating, bullying, and threatening is done by the perpetrators by gaining confidence of female acquaintances virtually. Demanding sexual favors from women randomly has become a flourished masculine practice which is often ignored. The major cyber-crimes can be listed as follows for which law competently provides for punishment.
1) Cyber-Stalking - It is the most alarming concern increasing worldwide and is at its highest in India. It is the crime of keeping track of someone’s online activities to gather information, extracting images from social media platforms and making threats in different forms of verbal intimidation. There is however no physical threat from the perpetrator, but the anonymity of online interaction makes cyber-stalker unidentifiable and untraceable. Stalking is now recognised as cyber tort as well, which entitles the victim to claim compensation for the nuisance, harassment or annoyance caused due to it.
2) Defamation - The penal law deals in length with the defamation and is punished under both civil and criminal law. In this context it refers to the circulating of defamatory material in connection to a person on the internet, among relatives, friend-circles etc. targeted to malign the image of the concerned person.
3) Morphing - It is an act of satisfying illicit fantasies. It refers to the act of editing the original picture to misuse it. Images of women are downloaded from social media platforms, whatsapp chat profiles etc and are uploaded to porn sites and web pages.
4) Pornography - Internet is flooded with porn material. It is accessible to people of all age groups. The glare of porn unleashes potential vulgarity and criminality in male netizens who irresponsibly and immorally try to frame their induced fantasies to their online interaction with females.
5) Cyber harassment - It is an umbrella term of cyber bullying, sending obscene messages through emails, messages, blackmailing women and extorting illicit favors by using their intimate information and images etc. Trolling of women includes going off topic on their looks, opinions, stands and insulting the person and posting inflammatory messages in groups or individually demeaning the victim of women.
The legislature took into cognizance increasing cybercrimes and a statute Information Technology Act, 2000, was enacted as a result. It is important to mention here that first ever case of stalking came into limelight in 2001 where a woman named Ritu Kohli complained of being stalked on the internet. The police filed the complaint under section 509 of the Indian Penal code and found out that a man named Manish Kathuria was using her name to illegally chat and send obscene messages on a website. He distributed her personal information with the strangers. She began receiving annoying calls and reported harassment caused due to it. The preamble to the IT Act makes it clear that the Act regulates the interchange of electronic data, electronic communication, and e-commerce by recognising illegal activities, mode and punishment for cybercrimes.
The Act was first amended in 2008 which empowered the Indian Government to intercept, monitor and decrypt computer systems, resources, and communication devices to keep surveillance or networks and e-mails. The relevant provisions are as follow:
1) Sec 66A - It provides for punishment for sending offensive messages through communication service. Any information which is false, annoying, or misleading to cause enmity, hatred, insult, injury, intimidation, etc. is punishable with imprisonment for up to three years. It is notable that this section was struck down by the Supreme Court being violative of article 19(1)(a) which guarantees freedom of speech and expression.
Sec 67A - It provides punishment for publishing or transmitting material containing sexually explicit acts in electronic form with imprisonment up to five years and seven years on first and subsequent conviction respectively.
Sec 67 - Punishment of imprisonment up to three years and five years on first and subsequent convictions respectively for publishing or transmitting obscene material.
Sec 66C - Punishment for identity theft using others’ passwords, e-signature, etc with imprisonment up to three years and with fine.
Sec 66D - Punishment for cheating by impersonation by using a computer with imprisonment up to three years and with fine.
Sec 66E - Punishment for violation of privacy which includes capturing, publishing or transmitting image of private area without consent with imprisonment up to three years and with fine.
The Criminal Law (Amendment) Act 2013 brought a swarm of changes in penal code. The Act was the result of horrific “Delhi Gang Rape Incidence, 2012” where after a special committee under the head of Justice Verma was constituted to propose changes. Amongst others, the act introduced cyber stalking as a criminal offence.
Sec 354D defines and punishes the act of stalking with imprisonment of minimum of one year which may extend up to three years and with fine.
Stalking has been defined as an act of contacting or following a person despite her clear disinterest in such interaction or monitoring of use of the internet or electronic communication of that person.
Practically, the offences aforementioned are coupled with following offences under Indian Penal Code:
● Sec 509 - Words, act or gestures intended to insult modesty of women which include eve-teasing is punishable with one-year imprisonment added fine.
● Sec 506 - Criminal intimidation to impute unchastity to women is punishable with imprisonment up to seven years and fine.
● Sec 441 - defines criminal trespass as to intimidate, insult or annoy any person.
● Sec 447 punishes criminal trespass with imprisonment up to three months or fine or both.
● Sec 507 punishes criminal intimidation by an anonymous communication with imprisonment up to two years.
● Sec 500 provides for punishment for defamation with imprisonment for up to two years.
The law has therefore made arrangements to safeguard the independence and security of women. The drawbacks can be pointed out in enforcement. The agencies or cyber cells created for this purpose are not fully equipped to trace the offender hiding behind the veil of global anonymity. Many of these crimes remain unreported because of a lack of awareness and information. However, with the boosting use of the internet, the information regarding women's rights is made available and women are encouraged to come forward against the criminals taking a toll on their privacy. The major concern of the IT Act was to regulate transactions in e-commerce and the Act by subsequent amendment made stringent in this regard. An exhaustive code for bringing acts which have no specific recognition under the broader ambit of cyber - crime should be enacted.
India has been an orthodox, patriarchal society. Understanding this statement in the contemporary context does not necessarily mean that all those evils that prevailed in old times, where women were substantially treated as property, were not allowed to give priority to their choices, were not advanced, considered inferior to males in all aspects, have negligible freedom and confined to house-chores. The society today is undergoing drastic changes, women are speaking up for themselves, taking stands, working jobs, leading an independent life. The statement holds substance that even going through the phase of women empowerment, women who are victimized, bullied or harassed are mostly blamed. The society has woven a web of extreme responsibility and carefulness on the part of women alone and let it be said, being responsible is extremely necessary and is the first principle of self-help, but expecting all the standards from one gender because of their vulnerability is double victimization. The stigma of embarrassment and shaming of victims needs to be completely eroded from society to instill a sense of confidence to initiate complaint or legal process against the offenders.
Today as we stand resolved to make Digital India a concrete reality, we must devise a mechanism to combat the vices attached with it. The ever-expanding domain of cyber-technology needs to cope up with the emerging cyber crimes challenging the spine of our legal system. The watch-guard by the state is multiplied on different frontiers. As of now, educational, professional, commercial, entertainment and business industries are digitalised, having entered the online mode due to the social distancing imposed in the wake of coronavirus pandemic, work from home or schooling from home is becoming a new normal exposing young children and women and for that purpose every person at the risk of being exploited in the field that works in unimaginable ways making innocents especially women their all-time ‘prey’. Many cybercrimes are not reported because of unawareness and shyness of the victim. The Investigation departments are ill-equipped, which makes criminals evade the legal process easily. Female netizens should be made aware of their rights, the activities that qualify as crime but are conducted as regular and the law should be made stringent to fill up the lacunas costing security and independence of people, particularly women.
. Black’s Law Dictionary, 8th edn. 2004 . Ritu Kohli case . Outraging the Modesty of woman . Shreya Singhal v. Union of India, 2015