Amid the debate on the regulation of online content by law, Kerala has witnessed the registration of an FIR against a person accused of uploading videos with obscene and defamatory remarks against women, especially writers, artists and activists. Some of the victims have said when a complaint was lodged, police officials allegedly said that with the striking down of Section 66A of the Information Technology Act, 2000 by the Supreme Court, it has become difficult to register cases and take action against such persons. In other words, the problem being faced by the law enforcement agencies is that sans Section 66A of the Act, there is no concrete legal provision under which such persons can be charged and tried.
Section 66A, inserted by Parliament in 2009, sought to punish persons who send information that is grossly offensive or menacing in character through the medium of a computer resource or communication device. The section was challenged before the Supreme Court, which in 2015 struck down the provision as being antithetical to the freedom of speech and expression (Shreya Singhal v Union of India). A lesser known fact is that in the same case, the constitutional validity of Section 118 (d) of the Kerala Police Act was also challenged. The said provision, enacted after the introduction of Section 66A, sought to punish with imprisonment/fine any person who in an indecent manner causes annoyance by any means. This section was also struck down on identical grounds.
In the present case, the police, in the absence of Section 66A, appear to have invoked Section 354 of the IPC. The said provision punishes any person who assaults/uses criminal force to any woman intending to outrage her modesty. Since there’s a certain inadequacy with respect to the legal provisions to punish offences committed against women through an online medium, the Kerala government can consider making a state amendment to Section 509 of the IPC, akin to that made by the Chhattisgarh government in 2015 a few months after the SC struck down Section 66A.
Section 509 of IPC punishes any person who, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any person, intending that such word or sound shall be heard, or that gesture or object shall be seen, or intrudes into the privacy of such a woman.
Chhattisgarh inserted Section 509-B which reads: Sexual harassment by electronic modes. –“Whoever, by means of telecommunication device or by any other electronic mode including internet, makes, creates, solicits or initiates the transmission of any comment, request, suggestion, proposal, image or other communication, which is obscene, lewd, lascivious, filthy or indecent with the intent to harass or cause or having knowledge that it would harass or cause annoyance or mental agony to a woman shall be punished with rigorous imprisonment for a term which shall not be less than six months but may extend to two years and shall also be liable to fine.”
The legislative intention behind the amendment was to address and curb the harassment of women through social media and other forms of online communication where the predator hides behind a veil but is no less dangerous. The ambit of the provision is broad and all-encompassing and, to a large extent, fills the void left on account of the deletion of Section 66A. An amendment to the IPC is the need of the hour. The government must ensure that our criminal laws are dynamic enough to suit the requirements of the day and are not rendered toothless tigers.—Gopika Nambiar, Advocate