By Shrutanjaya Bhardwaj
The information in this piece had originally been collected for an awareness session hosted by JaagoTeens for college students in DU, for which I had gone with CCG Fellow Aarti Bhavana. While preparing for the same, I had reached out to all my friends and relatives to gather instances of online sexual harassment faced by them or those they knew, in order to prepare case studies relatable to by college students. Within two hours, (un)fortunately, my phone was full of replies.
What is most troubling is that these are not cherry-picked accounts. In fact, what I present below is a compilation of generic instances of humiliation all women face at some point in their lives – the product of a sick sense of entitlement over a woman’s body and person that our society constantly feeds into every man it bears. Most of my (mostly female) friends and relatives had gotten back to me with an added comment: “Every woman you write to would know about this.”
My immediate motive is to set out here the provisions of the Indian Penal Code (as amended in 2013; hereinafter IPC) as well as the Information Technology Act (as amended in 2008; hereinafter IT Act) that deal with, or have the potential to deal with, cases such as those hereinafter mentioned. While Case I is that of harassment being caused by a stranger, while Case II deals with someone more familiar – a frustrated ex-boyfriend who couldn’t get what he desired. The hope behind this piece is that the law against online harassment will be generally known, and actions like these will be met with complete intolerance and proper legal retaliation at all times to come. I welcome your feedback about other strategies that may be useful.
Case I: The Creep
It starts with a random message from a random stranger.
Him: “Hey. How old are you?”
Her: “16. Do I know you?”
Him: “16 is good. Very fresh.”
Her: “What do you mean?”
Him: “I just mean… 16 is very fresh, you know? Ripe for plucking.”
She stopped replying.
It doesn’t stop here, of course. The guy starts following and adding you everywhere – Orkut, Twitter, LinkedIn, Messenger – everywhere. Her ‘Other’ folder on Facebook is filled with dirty messages from him, including links to erotic sites. He keeps asking her for sexual favours despite her having expressed clear disinterest, and in his messages writes in great detail how he wants to dominate, exploit, harass and torture her in bed. When she doesn’t reply for a long time, he starts sending her pictures of his private body parts.
Still receiving no response, he decides to move out of her inbox, onto what is a more public aspect of her social media profile. He starts commenting on her pictures, saying things like “You dress like a call girl”, “You have very nice breasts” etc. He downloads her profile picture, morphs it and uploads a picture depicting her in a sexual act with another person. At this point, she reports him and blocks him from her profile.
Three IPC provisions provide you a direct legal remedy for this: S. 354A, S. 354D and S. 509. S. 354A punishes (with 3 years imprisonment and/or fine) as ‘Sexual Harassment’ instances where a man makes “a demand or request for sexual favours”, shows “pornography against the will of a woman”, or makes “sexually coloured remarks”. S. 354D punishes under ‘Stalking’ any man who “follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman” with three years and/or fine on first conviction, and five years and/or fine on second conviction. Finally, S. 509 provides that any person who utters any word or makes any sound or gesture, intending that such word, sound or gesture be heard or seen by a woman and insult her modesty, shall be punished with one year imprisonment and/or fine.
Further, the IT Act punishes transmission of obscene as well as sexually explicit content in electronic form. S. 67 prohibits, and punishes with imprisonment extending up to three years and fine for first conviction and to five years and fine upon second conviction, the publication, transmission and causing of transmission of obscene content. Obscene content has been defined in the same manner as in S. 292 IPC, and therefore the test of obscenity is to be the same as under that provision.[i] As per S. 67, something is obscene if it:
- Is lascivious; or
- Appeals to the prurient interest; or
- Has the effect of depraving and corrupting persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.
Finally, S. 67A of the Act carves out a special category of obscene content i.e. material containing a ‘sexually explicit act’. The publication, transmission or causing of transmission or such material is punishable with imprisonment extending up to five years and fine for first conviction and to seven years and fine upon second conviction.
Case II: The Frustrated Ex-Boyfriend
Her boyfriend had taken some pictures and videos of her giving him a blowjob. On other occasions, he had asked her to send him nude pictures of hers over WhatsApp, and she had obliged. Shortly after this, however, the two had a big fight, and she broke up with him.
After the break up, he started threatening to leak her pictures and videos if she didn’t give in to his demands. When she didn’t oblige, he circulated the pictures and videos of her giving him a blowjob among all her friends and family on Facebook, with his own face blurred. Her nude pictures were circulated all over WhatsApp. One of her pictures had also been uploaded on a porn web site, with her contact number flashing next to it.
The IPC provides another three provisions to deal with situations such as this. S. 354C defines ‘Voyeurism’ as including the act of capturing the image of a woman engaging in a private act, and/or disseminating said image, without her consent.[ii] For the act to qualify as ‘Voyeurism’, the circumstances must be such where the woman would “usually have the expectation of not being observed either by the perpetrator or by any other person at the behest of the perpetrator”. A person convicted under this Section is liable to be punished with fine as well as imprisonment up to three years on first conviction and seven years on subsequent convictions.
s. 499 punishes as ‘Defamation’ the publication by visible representations of an imputation concerning the woman, when done with the intention to harm her reputation. Further, S. 503 punishes as ‘Criminal Intimidation’ threats made to any person with injury to her reputation, either in order to cause alarm to her, or to make her change her course of action regarding anything she would otherwise do/not do. The offences under S. 499 and S. 503 are punishable with imprisonment which may extend to two years, and/or fine.
The IT Act makes a special provision via S. 66E to deal with violation of the privacy of a person. Under the section, capturing, publishing or transmitting the image of a private area of any person without her consent, under circumstances violating her privacy, is punishable with imprisonment which may extend to three years, and/or fine. “Under circumstances violating privacy” refers to those circumstances in which a person could have a reasonable expectation that –
- He or she could disrobe in privacy, without being concerned that an image of his private area was being captured; or
- Any part of his or her private area would not be visible to the public, regardless of whether that person is in a public or private place.
Finally, the aforementioned generic provisions applicable to transmission of obscene or sexually explicit content also apply to situations like this.
Note: All offences mentioned above (except those under Ss. 499 and 503, IPC) are cognizable offences, which means that the police can take cognizance of these upon the filing of an FIR and begin investigation accordingly, without permission from the Magistrate.
What you can do: strategies to help you keep your options open
Often the first instinct in situations such as the above is either to delete all dirty messages and comments from your profile, or to hide in as many ways as possible any message or media that could ‘expose’ to your loved ones what you had been involved in. While I being a man can never claim to understand fully everything that the victim goes through in these situations, it is imperative that this urge is suppressed and the relevant evidence gathered. This would prove to be extremely useful if and when you decided to avail the legal remedies as aforementioned. Here are some things you could keep in mind:
- Prevention against destruction of evidence: Change your account password and make sure no one knows what it is. Take all necessary precautions to protect your phone/laptop/other digital device well from intrusion or theft.
- Preservation of important conversations etc.: Taking screenshots of relevant messages, conversations and comments always helps. If the conversation happened over an application such as Whatsapp that allows you to e-mail it to yourself, do it.
- Witnesses: Make sure there are some trusted people around you who saw what happened, so that they could later testify if needed.
In conclusion, it would be useful to mention that some organizations working in the field of women’s rights offer help to victims of sexual violence in many ways including accompanying them to the police station for filing the complaint. The contact details can be searched for on the internet. One such organization is Jagori, which runs a campaign called the Safe Delhi campaign, more details on which could be found here.
[i] Maqbool Fida Husain v. Raj Kumar Pandey 2008 Cri LJ 4107.
[ii] See Explanation 2 to S. 354C.
(Shrutanjaya Bhardwaj is an intern at CCG, and a fourth year student at National Law University, Delhi)