STATUTORY REMEDY AVAILABLE TO WOMEN VICTIMS OF ONLINE ABUSE- SECTION 509 OF IPC

ACCESS TO INTERNET- A HUMAN RIGHT

The United Nations adhering to Article 19 of the Universal Declaration of Human rights and the International Covenant on Civil and Political Rights recognized the internet as a Catalyst or an enabler to facilitate the realization of other human rights and hence, accorded access to internet status of a human right in June 2016. The Supreme Court of India adjudicated on the Right to the internet in early 2020 and held that the right to the internet is a necessary medium of interest in ensuring the rightful exercise of “freedom of speech and expression” and “freedom of trade and commerce” envisaged in Article 19 of the Indian Constitution.

But what are its implications in a society saturated with male dominance, where brutality, harassment, and intolerance against women in the digital world mirror that in reality?

The social web users in India have raised radically from 181.7 million in 2015 to 216.5 million in 2016 to an estimated 250.8 million in 2017. It is anticipated that the same would rise to 336.7 million by the year 2020. Technological advancement in India is no exception to abuse, while it has played a vital role in making lives easier, it has also proved to be an easier and accessible source for criminals to disobey the law.

ONLINE HARASSMENT- NOT ANOTHER MARVEL IN INDIA

Online harassment is a term of the wider connotation that began from the very invention of the internet itself but has witnessed emerging into a persistent and growing crime, it includes unwelcome physical, verbal or non-verbal conduct. It is undesirable if such conduct is intolerable, unreasonable, and abusive to the receiver. Sexual attention becomes sexual harassment if it is tenacious and once dismissed by the receiver.

The classification of online harassment is two-fold i.e. direct and indirect harassment. “Direct” form of harassment incorporates threat and intimidation of victim by the use of email and mobile phones. On contrary, “indirect” harassment involves the use of the Internet to communicate messages of hate, intimidation, or to spread false information about a victim. It is an inescapable or rigorous targeting of an individual or a group online through detrimental behavior.

According to a study conducted between 25 countries by Microsoft in the year 2012, India positions at number 3 in the list of online bullying. The statistics provided by the National Crime Records Bureau (NCRB) reveal that events of cyberstalking or online bullying of women have increased by 36% from 542 in the year 2017 to 739 in the year 2018. Meantime, the rate of cyberbullying conviction for women and children dropped by 15% points, to 25% in 2018 from 40% in 2017. The National Crime Records Bureau provides no data on the profile of Cyber Crime victims; hence there are no figures accessible in India to scrutinize the common forms of cyber-crimes against women.

CRITICAL EVALUATION OF SECTION 509 INDIAN PENAL CODE: A SUBSTANTIVE YET COMPLIMENTARY STATUTORY REMEDY AVAILABLE TO WOMEN VICTIMS OF ONLINE ABUSE

‘If society trivializes modesty, violence against women would result’- Kerala High Court

HISTORY

The Supreme Court in Sakshi vs union of India had recognized the shortcomings in the law dealing with offences against women and had suggested that the legislature should bring necessary changes to make legal provisions suitable to the needs of changing society to combat the aggregated form of existing offences that the legislature did not cover while formulating the statue. The law commission after exhaustive scrutiny of the Indian Penal Code provisions relating to rape and sexual assault suggested a complete reconstruction of the law. The bill was propounded by Justice Verma Committee based on the 172nd Report of Law Commission and suggested amendment of section 509 Indian Penal Code.

CORE ELEMENTS OF SECTION 509 INDIAN PENAL CODE

Indian penal code provides redressal against a malicious act or an act outraging the decency of the women. Section 509 Indian Penal Code is well regarded as an eve-teasing section. It penalizes indecent gestures and acts with the intent of insulting the modesty of a woman. The term “modesty” has not been propounded in any law. In the renounced case of Major Singh Lachhman Singh vs The State, the meaning word “modest” in connection to a woman has been expounded. It contemplates that modesty when used in the context of men means the element of being modest, and concerning a woman, it signifies, ‘womanly behavior; diligent decorum of thought and speech’. Public morality, decency, and modesty of women form the core elements of offenses under S. 509 IPC, which are primitive and patriarchal notions connected to the sexual assault of women. The application of these two provisions carries with them the potential pitfall of a judicial determination of ‘modesty’ and whether the victim woman possesses ‘modesty’ which is being violated.

In Rupan Deol Bajaj v. Kanwar Pal Singh Gillpopularly known as butt- slapping case, the Supreme Court bench consisting of Justice Mukherjee M.K held that  

“If the word articulated or the gesture displayed is anticipated as one which is capable of shocking the sense of dignity of a woman, then it can be concluded that it is an act degrading the modesty of the woman.”

THE CRIMINAL LAW (AMENDMENT) ACT 2013

Popularly known as the aftermath Nirbhaya Rape Case, the Criminal Law Amendment Act of 2013 was one of the crucial reorganizations of Criminal Laws concerning women. The punishment prescribed under section 509 Indian Penal Code was increased from a maximum of one-year of simple imprisonment to minimum simple imprisonment of three years which may extend to five years. The provision of the monetary fine was optional in the earlier provision; the amendment made the imposition of fine a mandate. The offense is cognizable, available, and compoundable under Section 320 Criminal Code Procedure.

UMBRELLA LEGISLATION

The ambit of Section 509 is interpreted to incorporate all common forms of digital crimes against women i.e. cyberstalking, cyber pornography, circulating photos/video clips of women engaged in sexual activities, morphing, sending indecent/abusive texts, virtual trolling / blackmailing/intimidation, and impersonation.

Section 509 is an umbrella legal provision which suffices the related provisions penalized in Section 354 Indian Penal Code, Section 66A Information Technology Act 2000, Section 67 Information Technology Act 2000, Section 66E Information Technology Act 2000 concerning the offenses of outraging the modesty of any women through words, sounds, gestures and by the exhibition of an object and also includes such offenses which deal with the intrusion of the privacy of women and any such act intended to insult or cause harm to the decency and dignity of a woman.

CONCLUSION

A virtual offence is with real consequences. Recent times have witnessed an overlapping between the legal provisions of the Indian penal code and the Information Technology Act concerning cybercrimes. However, the ambit of section 509 is complementary to any or every law that intends to penalize an offence outraging the dignity of a female victim whether through physical or virtual mode. Cyber-crimes in India against women are a demonstration of the hidden men centric society and sexism that is prevailing in the Indian society. Unless the fundamental cause is death through the long haul, multifaceted actions and constant efforts, dealing with the manifestations through legal/social process which would provide only an interim and frivolous solution.

[This article is written by Megha Solanki, Final Year Student B.A L.LB (Hons) of Fairfield Institute of Management & Technology.]

number of Social Network Users in India from 2015 to 2021, https://www.statista.com/statistics/278407/number-of-socialnetwork-users-in-india/.

Ibid

Sakshi v Union of India (2004) 5 SCC 518

SEN, RUKMINI. “Law Commission Reports on Rape.” Economic and Political Weekly, vol. 45, no. 44/45, 2010, pp. 81– 87. JSTOR, www.jstor.org/stable/20787533. Accessed 3 Dec. 2020.

Major Singh Lachhman Singh vs The State AIR (1963) P H 443

Rupan Deol Bajaj v Kanwar Pal Singh 1996 AIR (2009), (1995) 6 SCC 194

Ram Singh & Ors v State of NCT of Delhi 2013