Background
A set of events that took place recently have yet again raised questions of respect and consent, and debates on the idea of humanity at large. Twitter and Instagram have blown up with screenshots of a group chat called “Bois Locker Room” on Instagram in which boys from Delhi, aged between 15-18, shared pictures of minor girls without their consent, freely discussed their anatomies and even went to the extent of envisioning gang rape. Following the expose, the situation aggravated when screenshots were shared of the same boys discussing publicising nude pictures of the girls who had spoken up and raping them to take revenge for the expose.
One concept relevant to this situation is of ‘doxxing’. This is the process of collecting and publishing someone’s private information online, usually with the intention of inciting harassment in real life, and is covered under the aspect of cybercrime/cyber obscenity.
The aim of this article is to explore the legal angle with respect to the events that have unfolded, in order to spread awareness about the potential options a person has to proceed legally.
Timeline
3rd May, 2020– Screenshots of a group chat revealed.
4th May – Delhi Women’s Commission takes suo moto cognizance; issues notices to Instagram and the Delhi Police;
4th May– Cyber Cell takes suo moto cognizance and files an FIR under various sections;
5th May- Delhi Police takes a minor boy into custody, identifies 26 others for questioning; three advocates write to SC urging it to take action.
Delhi Commission for Women
A day after this incident came to light, the Delhi Commission for Women (DCW) took suo-moto cognizance of the ‘Bois Locker Room’ incident. In its notice, the DCW noted that “The members of the group have been reported to have discussed techniques of raping women and gang-raping minors.”
In view of the same, the Commission issued notices to the DCP Cyber Crime Cell of Delhi Police and Instagram. The notice to the DCP demanded the copy of the FIR registered, the details of all the accused that had been identified and arrested along with a detailed action taken report; while Instagram was asked to provide the name, username, email-id, etc of the admins and group members. Additionally, it demanded to know whether any action had been taken by the social media conglomerate. The deadline set for the same is 8th May 2020.
As of 5th May 2020, one boy aged 15 years has been arrested and 26 others have been identified by the Delhi Police Cyber Cell for questioning.
Powers and Functions of Delhi Commission for Women:
As questions have been raised about DCW’s efficacy in dealing with such situations, it is pertinent to note the functions and powers that the DCW Act, 1994 lays down for it.
The Commission, according to the Act, has all the powers of a Civil Court while investigating and examining matters concerning deprivation of women’s rights or the safeguards provided for women under the Constitution and other laws. Specifically, it has the power to:
- Summon and enforce the attendance of any person from any part of India and examine him on oath;
- Require the discovery and production of any document;
- Receive evidence on affidavits;
- Requisition any public record or copy thereof from any court or office;
- Issue Commissions for the examination of witnesses and documents;
- Any other matter which may be prescribed.
The Commission in the present incident took suo-moto cognizance of the matter. This is a power granted to it under Section 10 of the Act. The Commission is empowered to take cognizance on its own volition in all matters relating to deprivation of women’s rights, non-implementation of laws and non-compliance of policy decisions.
The FIR
Post the social media outrage, the Cyber Cell of Delhi took cognizance and registered an FIR on 5th May 2020. According to the Indian Express, the FIR mentions Sections 465, 469 and 471 of the Penal Code (related to forgery), 509 of the Penal Code (word, gesture or act intended to insult the modesty of a woman), Sections 67 (publishing or transmitting obscene material in electronic form) and 67A (publishing or transmitting of material containing sexually explicit act in electronic form) of the IT Act.
It is unclear as of now why provisions regarding forgery have been mentioned in the FIR. In the absence of clear details, this explainer shall focus on the provisions that Kanooniyat believes are relevant to the matter.
The IT Act:
Section 67 deals with the publishing or transmitting of obscene material in electronic form while Section 67A particularly encapsulates material containing sexually explicit acts and conduct in the electronic form. The word ‘publish’ has not been defined in the act. However, in the case of Bennett Coleman & Co. v. Union of India,[1] the Supreme Court defined it as the process of “dissemination and circulation.”
Essentials of Section 67:
- It must be Published or transmitted
- The material must be obscene (as defined under Section 292 of the Indian Penal Code, 1860
- It must be in ‘Electronic form’ as defined in Section 2(r) of the Act.
- Punishment: First conviction with imprisonment which may extend to three years and with fine which may extend to five lakh rupees and for a subsequent conviction with imprisonment which may extend to five years and also with fine which may extend to ten lakh rupees.
As far as Section 67A is concerned, two conditions are vital:
- Concerned material must either be published or transmitted or caused to be published or transmitted in the electronic form
- It must contain sexually explicit act or conduct
On first conviction, the punishment shall be imprisonment which may extent to five years and with fine up to ten lakh rupees and in the event of second conviction, with imprisonment extending up to seven years and a fine up to ten lakh rupees.
While the law concerning such offences must ideally be gender neutral, there are certain provisions which are centric to women. These gender-specific provisions are often used in consonance with gender-neutral provisions. One such provision is Section 509 of the IPC which penalises ‘Outraging the modesty of a woman’.
In the case of State of Tamil Naidu v. Suhas Katti,[2] after a woman complained to the police about a man for sending her obscene and defamatory messages in a Yahoo group chat, the man was convicted for forgery for purpose of harming reputation, outraging her modesty and transmitting obscene material in electronic form. The offender was sentenced to rigorous imprisonment for 2 years under 469 IPC and to pay a fine of Rs.500/-, one year simple imprisonment and Rs 500 fine under 509 IPC and two years imprisonment with a fine of Rs 4,000 under section 67 of IT Act 2000. All sentences were to run concurrently.
Voyeurism & right to privacy
Voyeurism has increased in recent times with the increased use and availbilty of technology. Following the Criminal Amendment Act, 2013, voyeurism has been made an offence under Section 354C, and is punishable with an imprisonment of at least 3 years, which may extend to 7 years, and fine. This provision prosecutes a person for watching or capturing an image/video of a woman engaging in a private act, where she would usually would not have the expectation of being observed.
A fine reading of this section leads us to Explanation 2, which states that in cases where the victim consents to the capture of the images or any act, but does not allow the receiver to forward it to a third person, such forwarding shall be considered an offence under this section.
The offence of voyeurism is inherently connected to the concept of privacy. Right to Privacy was recognized by a nine-judge bench as a fundamental right under 14,19 and 21 of the Indian Constitution in August 2017 in the case of Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors.[3]
Hence, if one was to share a private photograph with the assumption that it would not be forwarded to a third person, yet the receiver forwards it, this act would be a violation of fundamental right to privacy, besides being prosecutable under 354C of the IPC.
Defamation
An alternative legal remedy is proving defamation under Section 499 which is in certain cases clubbed with criminal intimidation via electronic means under section 503 of the IPC, 1860. Verbal or visual representation intending to harm a person’s reputation constitutes defamation.
In India’s first case of cyber defamation, SMC Pneumatics (India) Pvt. Ltd. v. Jogesh Kwatra[4] the Court assumed jurisdiction over a matter where a corporate’s reputation was being defamed through emails containing obscene and vulgar material, and passed an injunction. The Hon’ble Judge restrained the defendant from publishing, transmitting or causing to be published any information in the actual world as also in cyberspace which is derogatory or defamatory or abusive of the plaintiffs.
Under the Indian law, defamation is also a civil offence and one can demand damages if defamation is proved.
Other initiatives
A lesser known scheme for assistance and support in such situations is the scheme of ‘Cyber Crime Prevention against Women and Children (CCPWC)’ under which an online Cyber Crime reporting portal, www.cybercrime.gov.in, has been launched to enable public to report complaints pertaining to Child Pornography/ Child Sexual Abuse Material, rape/gang rape imageries or sexually explicit content.
This portal facilitates the public to lodge complaints anonymously or through a ‘Report and Track’ option. With the cases of cyber crimes, in general, and cyber obscenity, in particular, constantly increasing, it is essential to spread awareness regarding such provisions in order for people to understand their rights.
*If you or anyone you know is being harassed online, please call National Cyber Crime Reporting Portal at 181 or report it on https://cybercrime.gov.in/. Alternatively, Delhi residents can also ring the DCW Helpline at 23379181, active between 9 AM and 6 PM.
This article will be updated as more details emerge.
This article has been written by Tushar Kohli and Aishwarya Sethi; Law School students and Content Creators at Kanooniyat
[1] Bennett Coleman & Co. v. Union of India, AIR 1986 Bom 321.
[2] State of Tamil Naidu v. Suhas Katti, CC No. 4680/2004, Tamil Nadu.
[3] Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors WRIT PETITION (CIVIL) NO 494 OF 2012
[4] SMC Pneumatics (India) Pvt. Ltd. v. Jogesh Kwatra CS (OS) No. 1279/2000, Delhi High Court.
2 comments
An Exhaustive and well researched topic! Thanks.
Thank you Kanooniyat for this article. It really helps us to understand the legality involved in the matter in the most appropriate way. Hope to see more of sych good articles.