Cyber Sexual Harassment Laws in India (Overview)

If we have sexual harassment law, why do we need Cyber Sexual Harassment Act? How can we find cybercriminals? There are so many questions being unanswered, which are now becoming an issue. The law punishing for sexual harassment does not cover cyber sexual harassment. There is the IT Act 2000 which is not an explicit statute to punish or prevent cyber sexual harassment.

The article hereby explains the meaning of what is sexual harassment and cyber sexual harassment. Further the lack of cyber sexual harassment law. It explains what are the ill-effects of such acts of crime and which tends not to be trivialised. The article also discusses the laws punishing such acts which lead to cyber sexual harassment and the reason why there is less conviction rate in India. Further, there is a brief explanation of the rule of evidence followed in such cases.

Cyber Sexual Harassment Laws in India

• Sexual Harassment
• What is Cyber sexual harassment?
• Lack of Cyber sexual harassment Law
• Effects
• Criminal Law or Civil Law
• Laws punishing Cyber sexual harassment in India
• Rule of Evidence

Sexual Harassment

The offence was added to the Indian Penal Code through a criminal amendment, 2013.^[1] The punishment for clause (i) to (iii) are considered much more severe than the clause (iv) that is why the punishment is given accordingly. This provision actually has its origin from the famous supreme court judgement Vishakha v. State of Rajasthan^[2] and has also led to a statutory enactment i.e., Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013^[3].

“354A. Sexual harassment and punishment for sexual harassment—

(1) A man committing any of the following acts—

1. physical contact and advances involving unwelcome and explicit sexual overtures or
2. a demand or request for sexual favours or
3. showing pornography against the will of a woman or
4. making sexually coloured remarks, shall be guilty of the offence of sexual harassment

(2) Any man who commits the offence specified in clause (i) or clause (ii) or clause (iii) of sub-section (1) shall be punished with rigorous imprisonment for a term which may extend to three years, or with fine, or with both

(3) Any man who commits the offence specified in clause (iv) of sub-section (1) shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both”

What is Cyber sexual harassment?

Cyber sexual harassment involves the actions of a person or persons towards the victim in the cyberspace which causes emotional distress, mental harassment, gender harassment, invasion of privacy etc.^[4] The harassers might incite fear of physical harm, give threats, post something defamatory about the victim. This might also lead to impersonating victims in pornographic sites.^[5]

These acts sometimes tend to seem like bullying but not harassment. There is a thin line of distinction between them which tends to blur when the platform of such an act is the cyberworlds or digital world. However, both the behaviours are inappropriate and hence, the law must be made in such a way to punish it universally. Distinguishing between acts seems to be in vain when it is a case of cyberspace harassment, but can be successful if distinguished on the basis of targeted audience.^[6]

Lack of Cyber sexual harassment Law

In this updated world, and increasing complexity of the technological world with sexual harassment as an evolving practice, cyberspace harassment is seen as a trend right now. But the lawmakers failed to cover the future aspects, hence there is a lack of punishments for cyberspace sexual harassment. The present sexual harassment act though useful seems to be so outdated as firstly, it only punishes the sexual harassment acts which are performed in a particular area, protected view and the offline world. For example, the workplace, educational institution etc.

Secondly, it does not assume that the harassment of any kind in the digital world is equally harmful as it is done in some protected settings.^[7] It basically means that if a woman is sexually harassed at her workplace or school or any protected settings, then she has a remedy under the statute but when she is harassed by an unknown stranger through digital media, she has no remedy as there is no separate statute. So, the traditional outlook of the legislators must be modernized to realise the realities of the modern world and internet era. Hence there is a requirement of a separate law governing that there is ethical behaviour profused in the digital platform too.^[8]

Effects

There are many bad effects of cyber sexual harassment upon the victim also upon the society. It sometimes leads to emotional distress which makes the victim to commit suicide, resigning job or dropping from school. It makes the victim to mentally suffer which might lead to trauma, inactive, low productivity etc. Cyber harassment against women leads to sexual objectification, gender stereotyping.^[9]

Since trivializing these crimes would be a sign of encouragement. In this digital world, where every person opts for social media for making friends, connects to media channels online in search of jobs, professional interactions take place and if they are threatened by the cyberspace sexual harassment, the above-said effects would end the life of a victim. This is an act of sexual violence which would lead to gender inequality to continue even in such an advanced stage of century.^[10]

Criminal Law or Civil Law

When the world is facing an increase in the number of cyber sexual harassment cases, it is still not clear as to which law can be governing it. Is it criminal law? Or civil law? The act of cyber sexual harassment seems to be an act of crime and also a tort. As the act leads to cyberstalking, cyberbullying and invasion of privacy, rape threats, threats of murder etc. However, there are also the acts of defamation, evil commenting, fake posts regarding victims etc.^[11]

A person may either file a private suit i.e., a civil case for the cyber tort committed and if the act is of severe nature then one can file a criminal case for the same. It is better if the act is punishable under criminal law as the act of cyber harassment had led to severe outcome i.e., sexual harassment against minors, suicide committed by victims etc.^[12]

Laws punishing Cyber sexual harassment in India

Under the Indian Penal Code, there are many sections for punishing the acts of stalking^[13], sexual harassment^[14], defamation^[15], voyeurism^[16], criminal intimidation like threats to injury or defame reputation^[17] and by some unknown stranger^[18], gender violence^[19] etc. but these are not explicitly covering cyberspace crimes.

There is no special law made by the Indian legislators for governing cyberspace activities but through Information Technology (Amendment) Act 2018^[20] The cybercrimes were being punishable. Information Technology Act 2000 which consists of the chapter “Offences”^[21] which punishes not only the computer-related offences but also cyberspace harassment, invasion of privacy^[22], breach of confidentiality^[23], cheating by impersonation^[24], publishing obscene material in electronic form^[25], publishing of sexually explicit act in electronic form^[26], publishing of sexually explicit act depicting children in it, in electronic form^[27], punishes for misrepresentation^[28] using digital media etc.

The act has no limitation to the particular jurisdiction as the crimes committed in the cyberspace or digital world have no limited territorial jurisdiction. Hence the act is made applicable even for the offences committed outside India.^[29] This gives the statute extraterritorial application and the information and materials can be exchanged between the officials of law enforcement agencies of different nations.^[30] However, these laws must be collaborated with each other i.e., the laws of information technology act with the Indian penal code to cover an act of cyber sexual harassment of any nature.

Even though there are a number of cyber harassment cases, the conviction rate seems to be least. The reason for this might be due to lack of strong evidence, or due to conservative ideologies of the Indian Judiciary. Like in the case of Karan Girotra v. State (2012 SCC OnLine Del 2673), the woman who was a divorcee wanted to start her life afresh and met a guy named Kiran Girotra who insisted the victim marry him. She refused as she was already married at that time of proposal. The accused then insisted her to marry him after divorce, meanwhile, he took her to a place, made her unconscious offering her drinks and sexually abused her. When he used those obscene photographs as a blackmail tool, he used her for sexual favours. Even though they were going to get engaged, she was blackmailed by him several times.

The court at this point concluded that the disclosure of her previous marriage was not made to the accused, although it was just mentioned earlier to him. Further, the court concluded that as the victim too had sexual intercourse with the accused and only filed the case when he broke the engagement, it was not a case of cyberharassment or cyberstalking. This shows the conservative ideologies of the judges towards the cyber sexual harassment.^[31]

Rule of Evidence

There are many technical issues and obstacles emerging out of cyberspace crimes. As the evidence produced in such cases is electronic evidence. Such digital evidence has to be judged with the help of expert’s opinion and cannot be relied on easily.^[32] The digital evidence must pass the test of admissibility and further require the evidence to be authentic. The evidence obtained must be shown keeping in mind the privacy rights issues. This makes the collection of evidence difficult.^[33] It is intangible and their collection may also be errored due to technical malfunction and lead to fabrication. Hence, the investigation is also tough, which may be another reason for non-conviction.

Although the laws are amended accordingly to cover the modern technological aspects, the society changes too fast with it the technology changes too and the law cannot be amended for every technological change made. The digital evidence collection, handling and submissions are codified well in other nations like the US Federal follows the ‘best evidence rule’ as a ‘rule of evidence for electronic evidence admissibility’.^[34] In the Indian Evidence Act too there are relevant changes made to include the codification of electronic evidence and its admissibility.^[35]

It is thus concluded that there is a need for dealing with cyber sexual and gender harassment issues. Because the world is in the digital era, the future would see much more improvement in technology. If we are still not taking any action, this will create the youngsters go through mental hardship and making the law for digital and cyber crimes would only help the next generations. There is no harm in providing with a new and separate statute punishing cyber sexual harassment, cyberstalking and cyberbullying cases. Or we can just modify the existing laws covering the updated or advanced crimes.

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^[1] Criminal Law (Amendment) Act 2013 (Act No 13 of 2013), s 7

^[2] Vishakha v State of Rajasthan AIR 1997 SC 3011

^[3] Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 (Act 14 of 2013)

^[4] Tom van Laer, ‘The Means to Justify the End: Combating Cyber Harassment in Social Media’ (2014) 123(1) J Bus Ethics 85

^[5] Danielle Keats Citron, ‘Addressing Cyber Harassment: An Overview of Hate Crimes in

Cyberspace’ (2014-2015) 6 Case W Res JL Tech & Internet 1

^[6] Jacqueline D. Lipton, ‘Combating Cyber-Victimization’ (2011) 26(2) BTLJ 1103

^[7] Nancy S. Kim, Web Site Proprietorship and Online Harassment, 2009 UTAH L.

REV. 993, 999-1000

^[8] Mary Anne Franks, ‘Sexual Harassment 2.0’ (2012) 71 Md L Rev 655

^[9] Danielle Keats Citron, ‘Cyber Civil Rights’ (2009) 89 B U L REV 61, 89-95

^[10] Danielle Keats Citron, ‘Law’s Expressive Value in Combating Cyber Gender Harassment’ (2009) 108 Mich L Rev 373

^[11] Nancy S. Kim, Web Site Proprietorship and Online Harassment, 2009 UTAH L.

REV. 993, 999-1000

^[12] Jacqueline D. Lipton, ‘Combating Cyber-Victimization’ (2011) 26(2) BTLJ 1103

^[13] Indian Penal Code 1860, s 354D

^[14] Indian Penal Code 1860, s 354A

^[15] Indian Penal Code 1860, s 499

^[16] Indian Penal Code 1860, s 354C

^[17] Indian Penal Code 1860, s 503

^[18] Indian Penal Code 1860, s 509

^[19] Indian Penal Code 1860, s 507

^[20] Information Technology (Amendment) Act 2018, Act No 10 of 2009

^[21] Information Technology Act 2000, ch XI

^[22] Information Technology Act 2000, s 66E

^[23] Information Technology Act 2000, s 72

^[24] Information Technology Act 2000, s 66D

^[25] Information Technology Act 2000, s 67

^[26] Information Technology Act 2000, s 67A

^[27] Information Technology Act 2000, s 67B

^[28] Information Technology Act 2000, s 71

^[29] Information Technology Act 2000, s 75

^[30] Yash Tiwari, ‘Cyber Torts: A Dark Shade of Information Technology in India’ (2019) 13 NJA LJ 171

^[31] Karan Girotra v. State 2012 SCC OnLine Del 2673

^[32] Paul W Grimm, ‘Authenticating Digital Evidence’ (2014) 31(5) Litigation 46

^[33] Erin E Kenneally, ‘Confluence of Digital Evidence and the Law: On the Forensic Soundness of Live-Remote Digital Evidence Collection’, (2005) 5 UCLA J L & TECH 1

^[34] Josh Gilliland, ‘The Admissibility of Social Media Evidence’ (2013) 39(1) Good Deeds 20

^[35] Indian Evidence Act 1872, s 65B

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1. Sexual Offences Under Indian Penal Code(Opens in a new browser tab)