By Devarshi Mohan and Pallav Gupta
Introduction
Digitization has allowed people to increasingly explore the internet and communicate with virtually anyone, anytime, anywhere across the world. However, the digital space by blurring the line between the physical and the virtual has given birth to cyber-crimes which pose a grave threat to women and children in particular. The objective of the present article is to open up a dialogue around the emerging narratives of information and communication technologies and gender based violence. The authors discuss the various cyber crimes that are prevalent against women and children and the measures taken to prevent and penalize them. Further, the article deliberates upon the shortcomings and the complexities of the conventional laws which bring in the need for a separate legislation to tackle cyber crimes.
Recently, a series of screenshots went viral on social media platforms, carrying extracts of conversations between some members of an Instagram group.[1] The participants involved were accused of exchanging morphed photographs of women, some of whom are underage girls, and passing indecent comments on the group.[2] The Delhi Commission for Women took suo moto cognizance of the matter and issued notices to the Delhi Police and Instagram.[3]
Cyber crimes against Women and Children
Cyber technologies have given miscreants an unprecedented ability to exploit a greater number of victims leaving internet users fearful that their personal space will not be protected online. Cyber crimes against women and children can be any acts committed with a motive to harm the victim psychically or psychologically, using digital means such as the internet and mobile phones.[4]
Cyber Stalking is one of the most frequently reported cyber crimes against women which involves engaging in communication through electronic modes which frequently involves continually approaching someone through texts, e-mails, videos, social media networks or other websites.[5] The communication often has intimidating, coercive or sexual overtones. Morphing is another widespread crime against women which is prevalent online.[6] It involves editing an original picture with intent to misuse it. The photographs are downloaded from social media sites, morphed and then circulated on other internet platforms such as WhatsApp, Instagram and pornographic websites.[7] With digital technology becoming more widely accessible and the internet more pervasive, there has also been a corresponding rise in the number of cyber pornography incidences as well.[8]
Apart from the above-mentioned cybercrimes, crimes like matrimonial fraud, phishing, morphing and cyber bullying are also on the rise.[9] The rising instances of cybercrime indicate the need to revisit the existing laws and highlight the need for a substantive legislation pertaining to cybercrimes.
Criminal Law in Cyber Space
India does not have a separate legislation concerning cybercrime and abuse against women and children. The Information Technology Act, 2000[10] (IT Act) coupled with the Indian Penal Code, 1860[11] (IPC) provides punishment in the form of imprisonment ranging from two years to life imprisonment and fine depending on the nature of Cyber Crime.
Relevant provisions under Information and Technology Act, 2000
The IT Act primarily aims at providing a legal infrastructure to promote e-commerce in India. Given that it has little to do with individual and personal citizens’ rights, it is inadequate to deal with cyber rights and individual protection under the law.
The IT act initially covered cyber-crimes with a broad brush and it was only in 2008 that it was amended and provisions were made to take certain cyber-crimes within its fold. Sections 67,[12] 67A[13] and 67B[14] are the primary provisions dealing with acts which are obscene, sexually explicit, and transmission material depicting children in sexually explicit acts, respectively. These provisions of the IT Act are too broad and they fail to address crimes such as morphing, phishing and cyber bullying. The piecemeal approach adopted by the legislature is highly ineffective and there is a need for enacting a detailed legislation governing cybercrimes.
Relevant provisions under Indian Penal Code, 1860
With a view to ensure that the IPC is able to cope with the changing nature of crime brought about by technological advancements, the IT Act, 2000 brought in amendments to the same. A new Section 29-A[15] was inserted which enlarges the scope of adding any electronic document as evidence in addition to paper-based documents. The code was further amended in 2013 to address cybercrimes such as stalking and voyeurism. Section 354A[16] and Section 354C[17] makes sexual harassment of a woman including demand for sexual favours and voyeurism an offence punishable with rigorous imprisonment which may extend up to 7 years. Section 354D[18] prescribes punishment for stalking i.e. following, monitoring and attempting to contact a woman despite a clear indication of disinterest by such woman.
Section 503[19] and Section 506[20] stipulates punishment for threat to cause death, grievous hurt or threat to a woman’s chastity. Section 507[21] makes it a criminal offence to anonymously threat to cause injury to a person, his reputation or property. Section 509[22] states that act, words or gestures of sexual nature which insult the modesty of a woman or which endangers her privacy are liable to be punished with simple imprisonment which may extend up to 1 year, or with fine, or with both.
The IT Act and the IPC have overlapping provisions with respect to cybercrimes. This often leads to unnecessary confusion and hence there is a need to consolidate the cyber laws and enact a new legislation solely addressing cybercrimes. The increasing traffic in the virtual world has aggravated the threat of falling prey to cybercrime, more so in the case of women and children who are frequently considered as soft targets. The present laws fail to counter the changing landscape of criminal cyberspace. The government must overhaul the legal framework to successfully counter cyber victimization of women and children in an effective manner.
Measures to keep check on Cyber Crimes against women and Children
1. Measures by the Government
The government after taking into consideration the National Commission for Women’s report[23] titled ‘Ways and Means to Safeguard Women from Cyber Crimes in India’ implemented several administrative, technical and legal measures to curb incidents of cybercrime. The government has set up Cyber Police Stations and Cyber Crime Cells in all the states for reporting and investigation of cybercrime cases.[24]
This decentralization of the network controlling agency often leads to ambiguity of jurisdiction which makes the task of apprehending the offenders more complex. In order to address the menace of cybercrime more effectively, the government should set up a single centralized controlling authority. A single centralized authority, continuously monitoring the problem, would help to fast-track the process of identifying, apprehending and punishing the wrongdoers.
The Ministry of Electronics & Information Technology has setup Cyber Forensics Training Labs in several states[25] to train and equip judiciary and police personnel in cybercrime detection and collection, preservation and seizing of electronic evidence. The Ministry has also issued an advisory[26] on the functioning of Matrimonial websites under the IT Act directing them to implement safeguards to ensure that there is no fraud committed on users by the means of fake profiles or incorrect information. The Ministry of Home Affairs has started a portal namely http://www.cybercrime.gov.in[27] where anonymous complaints can be filed in cases of women or child related crimes. The government also launched Cyber Dost Twitter Handle (@CyberDost)[28] in order to spread awareness against cybercrimes across the country.
The initiatives of the government are salutary, however, there is a need of bringing out more awareness campaigns in areas where the potential net users are high. State governments can work in tandem with NGOs and civil society organizations in conducting workshops in schools and universities to make children aware about ‘safe surfing’ on internet.
2. Measures taken by the Judiciary
The increasing instances of cybercrimes against women and children have also drawn the attention of the judiciary. The case of Suhas Katti v. State of Tamil Nadu[29] is notable in this regard wherein the conviction was achieved in 7 months from when the FIR was filed. The case revolved around the posting of obscene and defamatory messages against a woman on a yahoo messenger group. This case is touted as the first case of conviction under Section 67[30] of the IT Act. Various courts have also passed similar judgments holding perpetrators accountable for cybercrimes. For instance, in the case of Yogesh Prabhu v. State of Maharashtra[31] the accused was convicted under Section 509[32] of the IPC along with Section 66E[33] of the IT Act for stalking and sending obscene images to colleagues. This is one of the first cases of conviction for cyber stalking in India. The judiciary has shown its stern stance against cybercrimes by awarding the maximum punishment under law for such offenses, in most cases.
The Way Forward
With over 500 million active internet users[34], there has been a rise in the number of cybercrime cases in the country. The first step towards creating a secure online space for women and children should be taken by amending the two major statutes. Due to absence of specific provisions, in cases of email spoofing, phishing, morphing, trolling etc., the IPC provisions are generally applied by interpretation and extrapolation. The IT Act’s chapter[35] on offences, including computer-related offences, primarily deals with financial and economic matters and has no specific provisions on cyber-crimes against women and children.
In order to deal with the issue of under reporting of cybercrimes, the process of filing complaints should be further simplified, and confidence should be instilled that the identity of the victims will be protected. The law enforcement agencies should be sensitized about the various facets of cybercrimes against women and children and the entire redressal mechanism should be fast-tracked. Concerted efforts must be made by the government and its agencies to raise legal awareness amongst all the stakeholders to prevent as well as punish such offences. Children and adolescents form a vulnerable group as they spend a lot of time on social networking websites. Hence, there is a need of providing education to students at school level regarding the perils of cybercrime and the importance of information safety. This will not only enable their young impressionable minds to understand the dangers present in the virtual world but will also make them more empathetic towards others.
The recent Instagram group incident, which went viral on various social media platforms, is a stark reminder of the grave issue of cybercrime which exists in our society. The fact that this event has again brought to the forefront discussion regarding making our cyberspace safer coupled with the swiftness with which the authorities have taken cognizance of the issue, shows that we as a society are headed in the right direction in addressing the issue of cybercrime in India.
The authors, Devarshi Mohan and Pallav Gupta, are currently law students at the Gujarat National Law University (GNLU), Gandhinagar.
[1] Bois Locker Room: Indian teens’ lewd Instagram group causes outrage, BBC, available at https://www.bbc.com/news/world-asia-india-52541298 last seen on 07/05/2020.
[2] Delhi schoolboy who discussed raping girls on Bois Locker Room chat group questioned, Hindustan Times, available at https://www.hindustantimes.com/cities/police-take-note-of-rape-threats-on-social-media-group-of-schoolboys/story-loYqRytz0h5PMSIfsirVKI.html last seen on 07/05/2020.
[3] Delhi Commission for Women takes suo moto cognizance of chat room “Bois Locker Room”, writes to Delhi Police and Instagram, Bar & Bench, available at https://www.barandbench.com/news/delhi-commission-for-women-takes-suo-moto-cognizance-of-chat-room-bois-locker-room-writes-to-delhi-police-and-instagram last seen on 07/05/2020.
[4] OUTLAWING CYBER CRIMES AGAINST WOMEN IN INDIA, Manupatra, available at http://docs.manupatra.in/newsline/articles/Upload/CE3E0AE8-DE2B-41EA-92A2-8A46035DECEB.pdf, last seen on 07/05/2020.
[5] Debarati Halder and K. Jaishankar, Cyber Crime and the Victimization of Women: Laws, Rights and Regulations (2011).
[6] Cyber crimes involving morphed photos rising, Times of India, available at https://timesofindia.indiatimes.com/city/jaipur/Cyber-crimes-involving-morphed-photos-rising/articleshow/47861480.cms, last seen on 07/05/2020.
[7] Debarati Halder and K. Jaishankar, Cyber Crime and the Victimization of Women: Laws, Rights and Regulations (2011).
[8] With increased mobile penetration, cyber crime in India increases by 88% since 2015, EDEX, available at https://www.edexlive.com/news/2019/oct/22/with-increased-mobile-penetration-cyber-crime-in-india-increases-by-88-since-2015-8745.html, last seen on 07/05/2020.
[9] Cyber-crime cases in India almost doubled in 2017, Live Mint, available at https://www.livemint.com/companies/news/cyber-crime-cases-in-india-almost-doubled-in-2017-11571735243602.html, last seen on 07/05/2020.
[10] Information and Technology Act, 2000.
[11] Indian Penal Code, 1860.
[12] S. 67, The Information and Technology Act, 2000.
[13] S. 67A, The Information and Technology Act, 2000.
[14] S. 67B, The Information and Technology Act, 2000.
[15] S. 29A, Indian Penal Code, 1860.
[16] S. 354A, Indian Penal Code, 1860.
[17] S. 354C, Indian Penal Code, 1860.
[18] S. 354D, Indian Penal Code, 1860.
[19] S. 503, Indian Penal Code, 1860.
[20] S. 506, Indian Penal Code, 1860.
[21] S. 507, Indian Penal Code, 1860.
[22] S. 509, Indian Penal Code, 1860.
[23] National Commission for Women, Government of India, Ways and Means to Safeguard Women from Cyber Crimes in India, available at http://ncw.nic.in/highlights/consultation-“ways-and-means-safeguard-women-cyber-crimes-india”-organized-national, last seen on 07/05/2020.
[24] Cyber police stations and crime cells set up in each state, Times of India, available at https://timesofindia.indiatimes.com/india/cyber-police-stations-and-crime-cells-set-up-in-each-state/articleshow/65152730.cms, last seen on 07/05/2020.
[25] Ministry of Women & Child Development, Government of India, Many measures in to check cyber crimes against women, available at https://pib.gov.in/PressReleasePage.aspx?PRID=1540340, last seen on 07/05/2020.
[26] The Ministry of Electronics and Information Technology, Government of India, advisory on functioning of Matrimonial Websites in accordance with The Information Technology Act, 2000 and Rules made thereunder, available at https://meity.gov.in/writereaddata/files/Advisory_matrimonial_Websites_79_IT%20Act%2C2000.pdf, last seen on 07/05/2020.
[27] National Cyber Crime Reporting Portal, available at https://cybercrime.gov.in/, last seen on 07/05/2020.
[28]Twitter, available at https://twitter.com/CyberDost?ref_src=twsrc%5Egoogle%7Ctwcamp%5Eserp%7Ctwgr%5Eauthor last seen on 07/05/2020.
[29] State of Tamil Nadu Vs Suhas Katti, C.C No. 4680/2004 (Chief Metropolitan
Magistrate Egmore, 05/11/2004).
[30] S. 67, The Information and Technology Act, 2000.
[31] Yogesh prabhu v. State of Maharashtra, C.C. No. 3700686/PS/2009 (Chief Metropolitan
Magistrate, 2009).
[32] S. 509, Indian Penal Code, 1860.
[33] S. 66E, The Information and Technology Act, 2000.
[34] India now has over 500 million active Internet users, Live Mint, available at https://www.livemint.com/news/india/india-now-has-over-500-million-active-internet-users-iamai-11588679804774.html, last seen on 05/05/2020.
[35] Chapter IX, The Information and Technology Act, 2000.
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