SEKAR REPORTER

Court News from Madras High Court

THE HIGH COURT OF JUDICATURE AT MADRAS (Special Original Jurisdiction) P. No. of 2022 Subipriya D/o. Levakumar.S No.12/3, 1st street, Kannigapuram, K.K.Nagar, Chennai- 78                                                                                     …..Petitioner                                                             Versus Union of India Represented by its Secretary, Ministry of Law and Justice 4th Floor, A wing, Shastri Bhavan, New Delhi – 110 001 Ministry Of Electronics and Information Technology Represented by its Secretary, Electronics Niketan, 6, CGO

by ·

IN THE HIGH COURT OF JUDICATURE AT MADRAS

(Special Original Jurisdiction)

  1. P. No. of 2022
  2. Subipriya

D/o. Levakumar.S

No.12/3, 1st street,

Kannigapuram, K.K.Nagar,

Chennai- 78                                                                                     …..Petitioner

 

Versus

  1. Union of India

Represented by its Secretary,

Ministry of Law and Justice

4th Floor, A wing,

Shastri Bhavan, New Delhi – 110 001

  1. Ministry Of Electronics and Information Technology

Represented by its Secretary,

Electronics Niketan, 6, CGO Complex,

Lodhi Road, New Delhi – 110003

  1. Law Commission of India,

Through the Secretariat

LokNayakBhavan,

‘B’ Wing, 2nd and 4th Floor,

Khan Market, New Delhi-110 003                      ….Respondents

SYNOPSIS

  1. The increasing activities of online sexual exploitation against women and children in various forms such Cyberbullying, Cyber stalking, Non-consensual dissemination of Intimate images, Cyber grooming, Online sextortion, cyber blackmailing/Threatening etc, in our nation.
  2. The total number of cyber crimes reported in India according to the data published by the National Crimes Record Bureau as of 2020 stood at 50,035 in 2020 of which 10405 cases are cyber crimes committed against women. A total of 3293 cases were reported to be motivated by ‘sexual exploitation’, 1706 cases of ‘causing disrepute’, 2440 cases by ‘extortion’ and 2292 cases by ‘personal revenge and anger’. In the year 2020, 6308 cases were reported under crime head ‘Publication/Transmission of Obscene/sexually explicit act in electronic form’. However, there is no specific data available on the number of Revenge Pornography cases in India as it has not been recognized as a crime per se.
  3. Emergence of cyber crimes known as the ‘revenge porn’ or Non-consensual intimate image abuse, which is discretely threatening the online safety and privacy of individuals. There are innumerable cases of intimate image based abuse happening in India among other online cyber crimes. However, this particular class of crime as not been designated with a proper name to identify and distinguish its nature from other online sexual crimes.
  4. The prosecution for the offence of Non-consensual dissemination of Intimate Images, sexual extortion or threatening the victim with dissemination an array of Sections 66E, 67 and 67A of the Information Technology Act are applied. Nevertheless, they are limited in their approach to specifically deal with these classes of crimes.
  5. The scope of section 66E of IT Act, is limited by its applicability restricted to video voyeurism with respect to ‘private areas’ of a person. Further, 66E of IT act does not include an image, in any form, that has been created or altered to appear to show any of the things mentioned in the above sections. The section pertains to offence of video voyeurism violating privacy. This section does not mention receiving sexually explicit images or videos without consent. However, this section requires that the image must be captured without the consent of the person depicted in the image. Considering that in most cases of image based sexual abuse, the person depicted in the image himself/herself would have sent the image to his/her partner; or that the person depicted initially consented to the image being taken, albeit not subsequently shared. To make the provision impermeable, an explanation must be added that punishes the act of disseminating images which were captured consensually but are being disseminated without consent. Hence, Section 66E of IT Act can be applied only when intimate images are transmitted or published non-consensually on the internet that explicitly exhibits a private area and not private sexual acts. Which leaves section 67 and 67A of the IT act to be excessively to prosecute any sexual offences that involve transmission of sexually explicit images.
  6. When an offender is charged under section 67 or 67A of the Act for offence of non-consensual dissemination of intimate images is committed. The phraseology of section misplaces the focus on whether the material so distributed is lascivious and has titillating effect on the person likely to view it, rather than on the predicament caused to the victim. In cases of online sexual abuse, it is insignificant whether the private image or video transmitted passes the test of obscenity, it should be sufficient that the material was shared non-consensually with an intention to cause distress or humiliation or to cause reasonable apprehension on the mind of the victim that if the threat be executed it would be ignoble. The absence of consent and use of the intimate images to threaten, abuse, exert coercive control or cause distress to the victim must be crucial determining factor for punishing such offences.
  7. Section 67 of the Act is vague as it lacks the perspicuity to distinguish those acts or conducts that shall be deemed to be obscene. Section 67 of the act determines whether a material is obscene, where as it does not lay the standards as to the contents of a material. Thus, leaving section 67 of the Act, uncertain to determine such acts or conducts that a material shall predominantly contain to attract section 67 of the act. Thus, section 67 of the Act fails to help common man determine the conduct that would be considered as lascivious or appealing to prurient interest or morally depraving as he is left to judge obscenity from his perspective of morality and culture.
  8. The detrimental effect of such wide and vague law is that, when section 67 of the act is applied to the offence of non-consensual dissemination of intimate images the victims of the crime also stand at the risk of being prosecuted along with the accused for transmission of obscene materials. The words ‘whoever transmits or causes to be transmitted or published’ can be conveniently misinterpreted to incriminate the victim along with the accused for transmitting such images or for causing such transmission or publication as the victim herself has provided the perpetrator material to be published.
  9. The definition of Section 67 of the Act would sufficiently include intimate images sent by a person through electronic medium for any private use. The criminalizing effect of section 67 of the act, thus can be used to threaten the victim to prevent reporting such crimes or is sufficient to instill a fear of prosecution in the minds of victims to eschew them from reporting such crimes. In the absence of emendation of section 67 of IT act, it would also be misused to implicate the victim for voluntarily transmitting sexually explicit self-images.
  10. The test of obscenity under section 67 of the IT act, is inconsistent with the trends of the contemporary digital world. The object of legislature under 67 and 67A of the IT act intended to prohibit the electronic transmission of obscene materials or material containing sexually explicit act. The current penal laws governing obscenity has lost its impetus with respect to contents disseminated on online platforms, that when a direct and strict law of obscenity is applied, it shall even prosecute those contents that are simply repulsive or disgusting and against the ideals of social morality of certain set of people, against social morality.
  11. Thus, the above provisions require to be revised/amended to ensure that the penal laws governing crimes committed through the electronic medium are pliable to combat the emanating trends in cyber crimes. The IT Act is broad yet insufficient to prosecute the multimodal crimes committed in the digital world. The IT act, being a special act, must be efficacious in containing diverse cases of cyber crimes of the millennium. Thus, there is an impending need for emendation of the existing laws to recognize cyber crimes such as non-consensual dissemination of intimate images as a separate offence and criminalize these crimes to instill a sense of justice and as deterrence.
  12. Representations have been sent to the respondents on 27.10.2020 however no action was taken hence the petitioner filed Writ petition before this Hon’ble court in WP No. 26029 of 2021. The Hon’ble court sought me to concise the petition mentioning correct sections of the IT Act. Thus, with its order dated 02.03.2022 permitted me to withdraw the petition with the liberty to refile it again. The petitioner sent representation dated 10.08.2022 however, no proactive actions have been taken in consideration of the letter. Hence, this petition has been filed seeking to issue a writ of Mandamus or any other appropriate writ directing the respondents to consider my representation dated 10.08.2022 sent to the respondents requesting the respondents to reform/amend section 66E of the IT Act to enable the provisions to prosecute cyber-based sexual crimes such as non-consensual dissemination of intimate images, threatening to transmit, publish or distribute intimate images and online sexual extortion and to reform/amend section 67 of IT act as it suffers from the vice of vagueness and ambiguity.

Dated at Chennai on this the           Day of September, 2022

 

Petitioner

Party-in-person

 

 

 

You may also like...