The technological advancements have unleashed new horizons of crime. Before the birth of the internet the concept of crime was somehow limited to, something physical or concrete which could be felt in real space or time. But after the development of internet and after the creation of the virtual space, the new dimension of crime has evolved. Cyber-crime has become a very prominent form of crime in the new technological era. In this respect, the vulnerability of the users has been a major concern. It has been a proven fact that whatever may the form of crime be, women are the most vulnerable class of the society. Cyber-crime has become a major concern for the countries worldwide. Mr. Antonio Guterres, while speaking to media on 14th of May 2018 said that when it comes to cyber-crime, we have much work to do and no time to waste.
The Indian Legislature enacted the Information and Technology Act, 2000 for the purpose of curbing out the menace caused by cyber-crime and prevent people to suffer from it. It has gone through many amendments and the most recent being in 2008, which was enacted in 2009. The whole research paper would revolve and try and find out answers to two main issues:
- Whether an effective legislation is in place to counter cyber-crime?
- Whether women have been vaccinated from the impacts of cyber-crime by the legislation and policies or is there an urgent need to implement new legislations and policies?
The research methodology followed for the research is doctrinal. The whole research paper would be centered on finding answers to these aforesaid issues and suggesting measures for the improvement of the condition of women and for providing them proper immunity against cyber-crime.
Crime could broadly be termed as a violation of rights, be it be ‘Rights in Rem’ or ‘Rights in Personem’. ‘Rights in Rem’ are generally those rights which an individual has against the society, whereas ‘Rights in Personem’, are the private rights. There has been a constant change in the dimension of crime and hence crime is said to be dynamic in nature. For the very purpose of being in sync with this dynamism, there occurs the need of a proper legal framework. The advent of cyberspace has added a new dimension to the concept of crime and has evolved a new form of crime which is most effectively known as cybercrime. There is no specific statute which provides for an exhaustive definition for cybercrime. In India the Information Technology Act, 2000, is the statute devoted to the purpose of checking cybercrimes. The United Nations is working effectively in this direction with the support of its member nations for assuring proper cyber security. It has passed various resolutions for this purpose and has urged its member countries to come together to counter this menace. The countries have begun to feel the need to have laws against cybercrime as its threat is increasing day by day. The online transactions have increased, online share trade has been initiated, and social networking sites are controlling human minds which has made privacy and security of an individual more vulnerable. For the purpose of reducing this vulnerability a strong statutory provision is required. India has been ahead in this field compared to many other developing nations. The Information and Technology Act was enacted in the year 2000 and has gone through various amendments but the concern still remains that, has it been able to reduce the threat of cybercrime? The Act would be deliberated in the research paper and an appropriate answer would be searched for.
Women have always been considered the most vulnerable class of the society and hence the research paper would be concerned about whether the women have been provided appropriate protection under the IT Act, 2000.
Analysis of the Information Technology Act (2000): Its Nexus with IPC And the Lacunas
The United Nations Commission on International Trade Law (UNCITRAL) felt the need for a legislation related to the cyber space. It adopted the Model Law which dealt with electronic commerce, in the year 1996 in order to bring uniformity in the law of various countries. In the year 1997, the UN passed resolution number 51/162 which urged all the states to enact and amend laws with consonance with the Model law which was passed in 1996. The IT Act, 2000 was made in consonance of the aforesaid UN Model Law. Hence the IT Act, 2000 mostly deals with subject which are mostly related to trade and E-commerce. It is mainly concerned with digital signatures, protection and securing databases. Although chapter XI of the Act deals with the offences but it is very restricted in its approach. It is not well defined as well. The main object of the Act has not been to declare acts as criminal offences and to declare punishments for committing those acts but rather its main object was to provide a legal framework for online transactions and digital signature.
The object of the Act reads, “An Act to provide legal recognition for transactions carried out by means of electronic data interchange and other means of electronic communication, commonly referred to as ―electronic commerce, which involve the use of alternatives to paper-based methods of communication and storage of information, to facilitate electronic filing of documents with the Government agencies”.
The object in furtherance to this reads that it has been enacted to amend various sections of Indian Penal Code, Indian Evidence Act, Banker’s Books Evidence Act and Reserve Bank of India Act as to matters which are related to this Act. However the concern is that there has only been a few sections in IPC which have a direct nexus with the IT Act 2000.
After the amendment of 2013, sections for voyeurism, stalking etc. were added in the IPC. The section for voyeurism is not gender neutral. It clearly starts with the words ‘Any Man’, and clearly protects only women against the crime of voyeurism. But if a man is a victim of this offence then there would occur a serious concern regarding the statute which must be followed to punish the offender. The same is in the case of stalking. The section again initiates with the words ‘Any Man’, this gain suggests that the section is not gender neutral. The men who are the victim of these two crimes may find it very tough to prove their point as the statutes are enacted in such a way that it disallows men protection under this section. Its Constitutional validity could very well be challenged as this clearly is in violation with Article 14 of the Constitution of India. But yes, if we talk about protection of women against cyber-crime then these two sections are in sync as these two sections provide special protection to women. The reason for this classification could very well be that women are often being dominated by men and the body of women is often hyper sexualized. Therefore they become prone to such offences like that of stalking and voyeurism. Hence, for the purpose of protecting them against this crime and to provide them with a special veil, these sections have been enacted through the amendment of 2013.
Child pornography has been made a punishable offence through the IT Act, however nothing has been mentioned about women. If a woman is forced or enticed to make a pornographic video then is no section as such under which the person could be punished. Many may argue that Section 67-A of the IT Act would cover this issues but the section only deals with transmission of the video or publishing the video and furthermore if we talk about women being the vulnerable section of the society then there exists the need to use the word ‘women’ in that section expressly. Again to mention Section 67-A does not talk about the subject matter of the sexually explicit content and the manner in which it is made. It also does not uses the word women. If a woman is enticed into making of a sexually explicit content with her consent then it would not fall under the purview of rape, but if that content is stored against her will then there occurs no section to protect her. If a woman is forced or enticed to be a part of a pornographic video which is not published or transmitted then it is hard to tell that under which section the offender would be punished. Section 67-B reads, “Punishment for publishing or transmitting of material depicting children in sexually explicit act, etc., in electronic form”. There exists scope to include women under the purview of this section as well. Women could be included within the purview of this section by including them under the sub-clause (c), (d) and (e). If women are provided protection under the aforesaid clauses then they would not be any more enticed to indulge in any sexually explicit content, they would not be abused online and no electronic record of own abuse could be transmitted.
Criminal intimidation is another offence which is stated under IPC. The matter of fact being that criminal intimidation could very well take place through any electronic medium. The Section 503 of IPC however does not talk about any criminal intimidation through any electronic medium. Multiple cases of blackmail could be found where a person has been intimidated or rather blackmailed online or through any other electronic device. Hence it is of urgent need that cyber laws are made in such a way or amendments in IPC are done in such a way that it protects the people from these offences.
A very important essential of kidnapping is if a minor is enticed by the offender. A minor is mentioned to be any person below the age of 16 if a boy and under the age of 18 if a girl. Now the point is that if a person is enticed through an online medium then there is no active mention for this term. Enticement could very well be through any electronic medium and hence this clause could very well be added. Similarly inducement through any deceitful means is a key element for the offence of abduction. Any person could be deceived through any online medium and be abducted. The terms misrepresentation and fraudulent purpose has been included in the IT Act, 2000 but again they have a very limited domain. Misrepresentation has a vast domain, so is in the case of fraudulent purpose. But the scope for punishment has been restricted under the IT Act and hence there occurs the need for judicial precedents. There exists a fair amount of risk in judicial law making and judge made laws could only be used to fill gaps between the statues. Hence statutes are required to be made effective enough to minimize lacunas and reduce the scope for judge made laws.
Violation of privacy has been included in the IT Act, however its domain is very narrow. After the landmark case of Justice K.S. Puttaswamy v. Union Of India and Ors., the right to privacy has been recognized as a fundamental right. Although a very little has been done in Section 66 E of the IT Act, 2000 for the purpose of protecting the privacy of an individual. Violation of privacy could even clicking pictures without the consent of an individual and transmitting it to other persons for the purpose of their viewing.
The biggest issue which has come up is that the cyber space is limitless, so it is very tough to determine that at what point you need to restrict people so that it does not violate anyone’s right. If a person is exercising his freedom of speech and expression, there exists a point at which he should be restricted or else it may affect others. The determination of that point is very tough. For the very purpose of determining a point till which freedom of speech and expression could be exercised online, Section 66A of the IT Act was enacted. Section 66A has always been a locus of debate regarding its Constitutionality. Section 66A states that if a person sends a message through a computer or any electronic device which is offensive or could cause menace shall be punished for a term period of three years. In addition to this it says that if the message sent by the person is false and he knows it to be false, contains hatred or ill will, and causes inconvenience to others, causes injury, damage, insult etc. then the person shall be punished with a term of three years. Now the problem is it lays down or rather it curtails Article 19(1)(a) of the Constitution of India. Article 19 falls under the Part III of the Constitution and is a fundamental right. Fundamental rights are inalienable rights[footnoteRef:19] and cannot be taken away by the legislature. The ‘Doctrine of Basic Structure’ was accepted by the Supreme Court in the case of Kesavananda Bharti Sripadagalvaru v. State of Kerala. This doctrine states that any law which violates the Basic Structure of the Constitution has to be declared unconstitutional. Fundamental Rights form the Basic Structure of the Constitution and hence any law which violates the fundamental rights of the individuals needs to be declared unconstitutional by the Supreme Court of India. The Section 66A of the IT Act clearly lays down restrictions to Freedom of Speech of Expression and there has been many cases where the Section was challenged or was debated.
The Case of Aseem Trivedi
Aseem Trivedi was a freelance cartoonist. In September 2012, he was arrested Section 66A of the IT Act, Section 2 of Prevention of Insults to National Honor Act, 1971 and under Section 124 of IPC. The most shocking was the charge of sedition against him. He made a few cartoons to depict widespread corruption in India. He replaced the four lions of the National Emblem with four wolves and replaced ‘Truth Alone Triumphs’ with ‘Corruption Alone Triumphs’. In another cartoon he depicted mother India being assaulted by parliamentarian and a bureaucrat. Later the charge of sedition was dropped and he was released on a bail bond of Rupees 5000. A cartoon made to depict a social evil and for the purpose of criticizing the government was declared anti national and a charge of sedition was filed against Aseem Trivedi. The essential of Section 66A of the IT Act are highly ambiguous and arbitrary and is upon the discretion of the authorities.
The Case of Ambikesh Mahapatra
Ambikesh Mahapatra a chemistry professor from Jadavpur University was arrested on the night of 12 April, 2012 for sharing a cartoon of Chief Minister of West Bengal and then Railway Minister Mukul Roy. He forwarded the email from the email address of a housing society and hence the secretary of the housing society was also arrested. They were arrested under Section 66A and 66B of the IT Act, Section 500 of IPC for defamation and under Section 509 for obscene gesture towards a woman and Section 114 of IPC for abetment. The primary section concerning the arrest being Section 66A of the IT Act. In this case it could well be observed that the scenario is being the same. Criticizing the government resulted in arrest of the individual. Hence Section 66A of IT Act was again in question.
The Road to the Watershed Judgment
There were several other cases recorder all across India. The elements of Section 66A were considered arbitrary and unfair. They were also considered to be ambiguous as terms such as ill will, hatred, inconvenience, and annoyance were not defined and cannot be defined as well. Finally a writ petition was filed in the Honorable Supreme Court of India in 2015. In the famous and landmark case of Shreya Singhal v. Union of India, the constitutional validity section 66A of IT Act was challenged and was held unconstitutional by the Supreme Court of India. This was a watershed moment in Indian judiciary.
Various concerns were raised regarding the arbitrary nature of Section 66A of the IT Act and its ambiguity. A writ petition under Article 32 was filed in the Supreme Court of India in 2015. The main contention of the petitioner was that the Section 66A of the IT Act was violative of the fundamental right of freedom of speech and expression and right to equality. The contention of the counsel on behalf of petitioner was that the restrictions laid under Section 66A were ambiguous and no proper definitions were provided for the terms used in the section. Restrictions on freedom of speech and expression are provided under Article 19 and the restrictions in Section 66A are not in nexus with those provided under Article 19. Section 66A is also violative of Article 14 of the Constitution as an unreasonable classification has been created by the legislature. The restrictions levied based on the classification between individuals who use electronic medium and who don’t use them is unreasonable. Based on these two basic contention it was pleaded by the petitioner that the Section 66A of the IT Act shall be declared unconstitutional. The Honorable Supreme Court accepted the contentions and declared Section 66A of the IT Act as unconstitutional that it was violative of the fundamental right of freedom of speech and expression and right to equality. It was effectively held that the nature of the Section 66A was ambiguous and gave the authorities arbitrary powers. The words mentioned under Section 66A are not well defined and hence its interpretation was based on the interpretation of the authorities. The Section 66A was arbitrarily used by the authorities to their own benefit. It was also held that the essentials in Section 66A were not in consonance with the restrictions to freedom of speech and expressions laid under Article 19 of the Constitution of India.
The Way Ahead
Commenting on posts and stories, tweeting, sharing posts and pictures etc. has become a trend. There has to be a restriction to ensure the safety of the citizens, integrity of the nation and to uphold the Constitutional values. Section 66A was enacted for this very purpose to stop people from spreading fake news, creating nuisance and insulting online users or harming the image and integrity of the nation. However its arbitrary nature lead to it being declared as unconstitutional by the Supreme Court. It is evident that there has to be some sought of restriction on the social networking sites as well. The objective of the IT Act, 2000 is very clear and its objective is not to deal with criminal offences and hence a separate act shall be created for the purpose of governing cyber offences. Necessary amendments are to be done in Code of Criminal Procedure for the creation of a separate judicial structure for assuring justice to the victims of cyber-crime. As cyber cells are created to register complaints of Cyber-crimes, on the same note separate cyber courts could be created to ensure quick justice to the victims. As provision for fast track courts have been created, on the same basis provision for separate cyber courts could be created. Provisions must be made for banning pornographic films. Until and unless they would be banned there would be chances that women and children would face abuse and sexual harassment.
Cyber-crime is on rise. As per the National Crime Records Bureau (NCRB), 217 cases of cyber-crime were registered in the year 2007, 288 cases were registered in the year 2008, 420 cases were recorded in 2009 and 926 cases were recorded in 2010 under the IT Act, 2000. A total of 328 cases were recorded in 2007, 176 cases were recorded in 2008, 276 cases were recorded in 2009 and 356 cases were recorded in 2010 under the IPC, these matters were related to cyber- crime. The registered data provides an idea regarding the issue of cyber-crime, raising concerns over the efficacy of the laws in existence. As per the data of NCRB, 1791 cases were registered in 2011 under the IT Act and this number keeps on increasing. Another very disappointing fact is that no separate data is kept regarding women affected by cyber-crime. NCRB maintains the record of women victims of other crimes but no separate data is maintained when it comes to female victims of cyber-crimes.
Cyber-crime has become a concern which has to be addressed immediately. Mr. Antonio Guterres, the Secretary General of the United Nations has very well understood the urgency to deal with the issue of cyber-crime and has member nations to act swiftly in this direction. The United Nations could only advice the member countries of which India is also a part and it cannot compel a law on us, as India being a sovereign nation has to power to deny any external interference. However, cyber law and safety of women is of paramount importance. There are frequent cases of stalking, voyeurism, body shaming, trolling etc. against women. It is a well-accepted fact that women are vulnerable towards offences. If a women puts up a photo on her social media account which shows some part of her body then she faces many kind of harassment from the users.
The IT Act 2000 is an Act to govern E-commerce, online trade and digital signatures. Though a part of the Act is dedicated to describe cyber offences but that is not enough and has failed to provide adequate protection to women. As it has been shown in the research paper that there are no such specific section which talks about the protection of women. There are sections which criminalize child porn or harassment of children. There prevails a scope to include women under that section as well. There has to a ban on pornographic sites to make it sure that any sexually explicit content of a women is not published and transmitted and neither she is forced or enticed to engage herself into any such act. The same goes with the children. Porn ban would ensure that children are not forced to indulge into such activities and are protected from abuse. A stringent law is needed to be enacted so that women and children are safe.
There exists an urgent need to enact a specific law for defining and punishing cyber-crimes. In this particular law there lacks the element to define offence and it is ambiguous in nature. A proper legislation has to be passed so that the threat of cyber-crime could be dealt with. The continuous rise in cases of cyber-crime is an alarming situation. This situation proves that the laws are not stringent and effective enough to deal with the menace of cyber-crime. The Indian Penal Code and the Code of Criminal Procedure also requires certain amendments to be in sync with the changing dimensions of crime. It cannot be left upon the Court to interfere and decide and set a precedent as a law. There has to be statutes and black letter law which could be relied upon and followed. Fast track Courts have been initiated across the country for speedy trials. We have consumer forum for consumer grievances. So, on the same not we could very well have Courts dedicated to deal with cases of cyber-crimes. This would help in reducing the burden of Trial Courts and help in quick disposal of cases.
The electronic world is a borderless space and to draw a limit is very tough. People are free to tweet, share pictures, make comments etc. but somewhere a line has to be drawn. A line has to be drawn between the Fundamental right of freedom of speech and expression and the reasonable restrictions. An access of one’s own right cannot be at the cost of other’s right. Rights are often accompanied by duties. While accessing a right one must be aware of the fact that it is his duty not be harm someone else’s right. Section 66A was enacted to control menace in social networking sites and to draw a limit to freedom of speech and expression but the section was quite ambiguous and arbitrary. It gave the authorities and the government excessive powers, as the terms used in the section were not well defined and those terms were interpreted as per the benefit of the government to put a check on people protesting against the government. The ones raising voice against the government were put behind the bars in the name of violation of Section 66A and said to have caused annoyance, spread hatred etc. This section had been an example of arbitrary actions of the government. The Supreme Court finally intervened and the Section 66A was declared as unconstitutional as it violated the fundamental rights of the people and was against the basic structure of the Constitution. A proper check has to be put, in consonance with the reasonable restrictions provided in Article 19 (2) of the Indian Constitution. There has to be a proper differentiation between sedition and criticizing the government.
Hence it is concluded that the legislations in place is not enough to deal with the menace of cyber-crime and no special protection have been provided to women to protect them against cyber-crime. There is much to be done on this regard so that females no longer remain the vulnerable class of the society and are vaccinated from the perils of cyber-crime.