Privacy Laws: Women a soft target

Article 21 of the Indian Constitution states that “ No person shall be deprived of his life or personal liberty except according to the procedure established by Law”. After reading the Article 21, it has been interpreted that the term “Life” includes all those aspects of life which go to make a man’s life meaningful, complete and worth living.

In the landmark judgement Justice K.S. Puttuswamy (retd) vs Union of India,2017, the Supreme Court ruling in the outcome of the petition challenging the constitutional validity of the Indian Biometric Identity Scheme Aadhar. The nine-judge bench declared that the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as part of the freedom guaranteed under Part-III of the constitution of India.

The scope of the right to privacy first came up for consideration in M.P Sharma vs Satish Chandra and Kharak Singh vs State of U.P,1962. In both cases, The Supreme Court stated that the right to privacy did not exist under the Indian Constitution.

In the case of  Kharak Singh, an accused; in dacoity case was let off due to the lack of evidence and challenged regular surveillance by police authorities on the ground of infringement of his fundamental rights, the court ruled that privacy was not guaranteed constitutional right and held that Article 21 was the repository of residuary personal rights and recognized the common law right to privacy.

Justice Subbarao said that even though the right to privacy was not recognized as a fundamental right, it was essential to personal liberty under Article 21. He also held all surveillance measures to be unconstitutional.

The M.P Sharma case was related to the search of documents of Dalmia group companies following investigations into the business of Dalmia Jain Airways Ltd. The eight benches held that a power of search and seizure is, in any system of jurisprudence, an overriding power of the state for the protection of social security and the power is necessarily regulated by Law.

The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the constitution. The right to privacy has evolved through a series of decisions over the past years.

In Govind vs State of M.P. 1975, the Supreme Court confirmed that the right to privacy is a fundamental right. The right was said to include and protect personal intimacies of home, marriage, family, motherhood, etc.

In R.Rajagopal vs Union of India 1994, the apex court said that the right of personal liberty that is guaranteed under the Constitution. It further recognized that the right to privacy can be both an actionable claim and also a fundamental right.

In Maneka Gandhi vs Union of India 1978, the Supreme Court said that personal liberty in Article 21 covers a variety of rights and have some status of fundamental rights and also given additional protection under Article 19.

In People’s Union for Civil Liberties vs Union of India 1996, The case before Supreme Court extended the right to privacy to communications. The court laid down regulations in interception provisions in the country like such orders were to be issued by the home secretaries only, a necessity for the information was the considered, etc. Further, it capped two months onto the life of an interception order.

In District Registrar and Collector, Hyderabad and another vs Canara Bank and another 2004, the SC judgement refers to personal liberty, freedom of expression and freedom of movement as the fundamental rights that further gives rise to the right to privacy.

In Perronet LNG Ltd vs Indian Petro Group and another 2006, this was before the Delhi High Court was established that firms cannot assert a fundamental right to privacy.

In Selvi and others vs State of Karnataka and others 2010; interestingly, the Supreme Court made a difference between physical privacy and mental privacy. The case also established the connection of the right to privacy with Article 20 (3) self-incrimination.

Unique Identification Authority of India and anr. Vs Central Bureau of Investigation 2014, sought access to the huge database complied by the Unique Identity Authority of India for the purposes of investigating a criminal offence. The Supreme Court said that UIDAI was not to transfer any biometrics without the consent of the person.

Basically, the right to privacy refers to the concept that one’s personal information is protected from public security. U.S. Justice Louis Brandeis called it ‘the right to be left alone’.

Article 12 of the Universal Declaration of Human Rights,1948 and Article 17 of the International Covenant on Civil and Political Rights,1966, legally protected persons against “arbitrary interference’ with one’s privacy, family, home, correspondence, honour and reputation. Article 7 and 8 of the charters of Fundamental Rights of the European Union,2012, recognises the respect for private and family life, home and communications. Article 8 mandates the protection of personal data and its collection for a specified legitimate purpose.

Though crime against women is on a rise in all fields being a victim of cybercrime could be a mosying traumatic experience for any woman. Here the talk, I delivered in today session in which I discussed upon the various type of cybercrimes that can be inflicted upon a woman and how they adversely affect her. I also briefly examined the various laws that exist to protect women in such cases.

In India, women have to face the horrors of more obvious forms of surveillance and a general disregard for privacy. The state of Tamil Nadu recently attempted to mandate pregnancy registration to ensure the health and safety of a child. Such a “fetus registration program” was also attempted to be mandated by a Union Minister, to fight sex-selective abortion. Women especially young girls experienced in the cyber world, who have been newly introduced to the internet and fail to understand the vices of internet, and hence are most susceptible to falling into the bait of cybercriminals & bullies.

On the upside, newer forms of sexual harassment are being statutorily recognized, and few of them happen to be intrinsically connected to privacy:-

Section 354A: A man committing any of the following acts – a demand or request for sexual favours; or showing pornography against the will of a woman; or making sexually coloured remarks, shall be guilty of the offence of sexual harassment, may be punished with rigorous imprisonment for a term which may extend to three years, or with fine, or with both. In case of the first two and with imprisonment of either description for a term which may extend to one year, or with fine, or with both.

Section 354C defines ‘Voyeurism’ as including the act of capturing the image of a woman engaging in a private act, and/or disseminating said image, without her consent. For the act to qualify as ‘Voyeurism’, the circumstances must be such where the woman would usually have the expectation of not being observed either by the perpetrator or by any other person at the behest of the perpetrator.

A person convicted under this section is liable to be punished with a fine as well as imprisonment up to three years on first conviction and seven years on subsequent convictions.

Section 354D introduced a provision for stalking which also covers cyberstalking. Stalking has been defined to mean an act where a man follows or contacts a woman, despite clear indication of disinterest to such contact by the woman, or monitors the cyber activity or use of the Internet or electronic communication of a woman.

A man committing the offence of stalking would be liable for imprisonment up to three years for the first offence, and shall also be liable to fine and for any subsequent conviction would be liable for imprisonment up to five years and with fine.

The motivation of stalkers may be considered due to some reasons,

(i) sexual harassment,

(ii) obsession for love,

(iii) revenge and hate,

(iv) ego and power trips.

Ritu Kohli Case was India’s first case of cyberstalking, in this case, Mrs Ritu Kohli complained to police against a person, who was using her identity to chat over the Internet at the website. Mrs Kohli further complained that the person was chatting on the Net, using her name and giving her address and was talking obscene language. The same person was also deliberately giving her phone number to other chatters encouraging them to call Ritu Kohli at add hours. Consequently, Mrs Kohli received almost 40 calls in three days mostly on add hours. The said call created havoc in the personal life of the complainant consequently IP addresses were traced and police investigated the entire matter and ultimately arrested the offender. A case was registered under section 509, of IPC and thereafter he was released on bail. This is the first time when a case of cyberstalking was reported.

Similar to the case of email harassment, Cyberstalking is not covered by the existing cyber laws in India. It is covered only under the ambit of Section 72 of the IT Act that perpetrator can be booked remotely for breach of confidentiality and privacy. The accused may also be booked under Section 441 of the IPC for criminal trespass and Section 509 of the IPC again for outraging the modesty of women

Other than the specific amendments that have been made to the Code, there exist certain other provisions under which cyber crimes may be reported or the accused may be charged. These are:-

Section 499: To defame a person is to do an act with the intention of harming the reputation of the person. Defamation by the publication of visible representations of an imputation concerning the woman, when done with the intention to harm her reputation, is punishable with imprisonment for a term, which may extend to two years, or with fine, or both.

Section 503: Threats made to any person with an injury to her reputation, either in order to cause alarm to her, or to make her change her course of action regarding anything she would otherwise do/not do is punishable as criminal intimidation. The act of blackmailing a person on the internet, as was done in the case mentioned above can be brought within the ambit of this provision.

Section 507: This provision provides the quantum of punishment for Criminal Intimidation when the same is by a person whose identity is not known to the victim. Any anonymous communication, which amounts to criminal intimidation under Section 503 stated above, is punishable under this section.

Section 509: Any person who utters any word or makes any sound or gesture, or exhibits any object with the intention that such word, sound or gesture or object be heard or seen by a woman and insult her modesty, or intrudes privacy, may be charged under this section and imprisoned for a term that may extend to 3 years and also with fine.  Instances of lewd comments or remarks made over the Internet, or other explicit images and content forcibly shared over the web may be penalized under this section.

 The Information Technology Act, 2000 as amended:

Section 66C of the IT Act makes identity theft a punishable offence. Instances of cyber hacking would be covered by this provision. Under this provision, whoever, fraudulently or dishonestly make use of the electronic signature, password or any other unique identification feature of any other person, shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine which may extend to rupees one lakh.

Section 66E of the IT Act deals with the violation of the privacy of a person. Capturing, publishing or transmitting the image of a private area of any person without her consent, under circumstances violating her privacy, is punishable with imprisonment, which may extend to three years, and/or fine.

Section 67 prohibits and punishes with imprisonment extending up to three years and fine for a first conviction and to five years and fine upon a second conviction, the publication, transmission and causing of transmission of obscene content. Obscene content has been defined in the same manner as in Section 292 of the IPC and therefore the test of obscenity is to be the same as under that provision.

Section 67A makes the publication, transmission or causing of transmission of sexually explicit material punishable with imprisonment extending up to five years and fine for a first conviction and to seven years and fine upon a second conviction.

Section 67B makes publication/transmission of sexually explicit content depicting children punishable.

 Indecent Representation Of Women (Prohibition) Bill:

The Indecent Representation of Women (Prohibition) Act regulates and prohibits the indecent representation of women through the media of advertisements, publications etc. The Indecent Representation of Women (Prohibition) Amendment Bill, seeks to broaden the scope of the law to cover the audio-visual media and content in electronic form, and distribution of material will also include distribution on the Internet and the portrayal of women over the web.

In the Vinupriya case 2016, the victim was a 21-year-old student from Salem who had finished her BSc in chemistry. A person had posted morphed nude and semi-nude photographs of Vinupriya on Facebook. On June 26, another obscene photograph was posted on Facebook, leaving Vinupriya traumatised. The investigating officer assumed that she must have sent those pictures to someone and now they were being posted, perhaps by a jilted lover. The questioning of Vinupriya was along those lines. It humiliated her and on June 27, she hanged herself.

Cyber Pornography

This would include pornographic websites; pornographic magazines produced using computers Cyber Pornography is considered an exceptional case which has been covered by the IT Act to ascertain extent by Section 67 of the IT Act. The punishment is up to five years and fine. Along with IT Act the perpetrator can be punished under various Sections of IPC, Section 290 for committing public nuisance, section 292 for sale of obscene books etc, and section 292A for printing or publishing grossly indecent or scurrilous matter or matter intended to blackmail, section 293 for sale etc of obscene objects to young persons and then section 294 for doing or composing, writing etc of obscene songs and finally under section 509 for outraging the modesty of women.

The DPS MMS scandal is a very famous case where an MMS clip of a schoolgirl in the compromising situation was made and distributed amongst various internet networks.

 Cyberbullying

Cyberbullying is intimidation, threat or harassment using an electronic form of contact by the use of computers, mobiles and the internet. It is punishable under Section 506 of the IPC. It provides for imprisonment for a term which may extend to two years, a fine or both. If the threat is to cause death or grievous hurt, it can lead to imprisonment for a term which may extend to seven years.

 Cyber sexual defamation

Defamation is another common crime against women in the net. This occurs when defamation takes place with the help of computers and the Internet. E.g. someone publishes defamatory matter about someone on a website or sends e-mails containing defamatory matters to others. With the invention of the internet, the life of a common man has changed a lot. U/S/499 IPC imprisonment up to 2 years and fine is imposed in case of defamation.

The very first instance of cyber defamation in India was recorded in the case of SMC Pneumatics (India) Pvt. Ltd. v. Jogesh Kwatra-Jogesh Kwatra 2014 – cyber defamation was reported when a company‟s employee (defendant) started sending derogatory, defamatory and obscene e-mails about its Managing Director. The e-mails were anonymous and frequent and were sent to many of their business associates to tarnish the image and goodwill of the plaintiff company. The plaintiff was able to identify the defendant with the help of a private computer expert and moved the Delhi High Court. The court granted an ad-interim injunction and restrained the employee from sending, publishing and transmitting e-mails, which are defamatory or derogatory to the plaintiffs.

Another famous case involving women was The State of Tamil Nadu Vs Suhas Katti 2004, The case is related to the posting of obscene, defamatory and annoying message about a divorcee woman in the yahoo message group. E-Mails were also forwarded to the victim for information by the accused through a false e-mail account opened by him in the name of the victim. The posting of the message resulted in annoying phone calls to the lady in the belief that she was soliciting.

Harassment via email

Harassment includes blackmailing, threatening, bullying, and even cheating via email. Email spoofing is a tactic used in phishing and spam campaigns because people are more likely to open an email when they think it has been sent by a legitimate source. U/S 67 A punishment up to 5 years is imposed for harassment via email.

Trolling

Trolls spread conflict on the Internet, criminal starts quarrelling or upsetting victim by posting inflammatory or off-topic messages in an online community (such as a newsgroup, forum, chat room, or blog) with the intention to provoke victims into an emotional, upsetting response). Trolls are professional abusers who, by creating and using fake ids on social media, create a cold war atmosphere in the cyberspace and are not even easy to trace.

Morphing

Morphing is editing the original picture so as to make it look completely or largely different. Often criminally-minded elements of the cyber world download pictures of girls from websites such as Facebook and then morph it with another picture in compromising situation so as to represent that those women were indulging in such acts. Often the next step after this is to blackmail those women through the threat of releasing the morphed images and diminishing the status of those women in society.

The  Air Force Balbharati School case (Delhi)  comes under this category where a student of the School was teased by all his classmates for having a pockmarked face. He, who is tired of the cruel jokes, decided to get back at his tormentors and scanned photograph of his classmates and teachers, morphed them with nude photographs and put them up on a website that he uploaded on to a free web hosting service. The father of one of the class girls featured on the website came to know about this and lodged a complaint with the police.

According to the National Commission for Women (NCW) data received a total of 412 genuine complaints of cyber abuse from March 25 till April 25. Out of these, as many as 396 complaints were serious ones from women, (and these) ranged from abuse, indecent exposure, unsolicited obscene pictures, threats, malicious emails claiming their account was hacked, ransom demands, blackmail and more. Cyber experts, however, said the numbers are just the “tip of the iceberg”. The statistics show that 84% of men are suffered and 76% women.

WHERE TO LODGE A COMPLAINT

A person aggrieved of the offence of cyber defamation can make a complaint to the Cyber Crime Investigation Cell. The Cyber Crime Investigation Cell is a branch of the Criminal Investigation Department(CID). Cyber Crime Investigation Cells have opened up in many cities like Delhi, Mumbai, Chandigarh, Hyderabad, Bangalore, Tamil-Nadu, Gurgaon, Pune, Madhya-Pradesh, Lucknow, etc. The Cyber Crime investigation Cells deal with offences related to the computer, computer network, compute resource, computer systems, computer devices and the Internet. It also has the power to look into other high-tech crimes. In addition, provisions have now been made for the filing of ‘E-FIR’ in most of the states.

 Most of the cybercrimes remain unreported due to the hesitancy and shyness of the victim and her fear of defamation of family‟s name. Many times she considers that she herself is accountable for the crime done to her. The women are more vulnerable to the danger of cybercrime as the perpetrator‟s identity remains anonymous and he may constantly threaten and blackmail the victim with different names and identities. Women fear that reporting the crime might make their family life difficult for them, they also question whether or not they will get the support of their family and friends and what the impression of society will be on knowing about them. Due to these fears, women often fail to report the crimes, causing the spirits of culprits to get even higher.

Unfortunately even today the Indian police tend to not tends to take cybercrimes seriously, in such scenario, the woman or the young girl who falls prey to cyber victimization should first contact a women assistance cell or NGO such as All India Women‟s Conference, Sakshi, Navjyoti, Centre for cyber victims counselling which will assist and guide them through the process, also this will make sure that policy does not take any case lightly.

In-State of Karnataka vs Krishnappa 2000, the Supreme Court held that sexual violence apart from being dehumanizing act is an unlawful intrusion of the right to privacy and sanctity of a female.

In-State of Maharashtra vs Madhukar Narayan Mardikar 1990, the court held that women of easy virtue are entitled to privacy and no one can invade their privacy.

In Naz Foundation Case 2009 the Delhi High Court gave the landmark decision on consensual homosexuality. In this case, Section 377 of the Indian Penal Code and Article 14,19,21 of the Indian Constitution were examined. Right to privacy held to protect a private space in which man may become and remain himself.

The fundamental right to privacy will provide a remedy against a state. Of course, there are restrictions to the right too. In Rayala M. Bhuvenshwari vs Nagaphomender  Rayala,2008, the High Court of Andhra Pradesh, held that act of tapping itself by a husband of the conversation of the wife with others was illegal and it infringed the right of privacy of the wife. In this case, the petitioner filed a divorce petition in the court against his wife and to substantiate his case sought to produce a hard disk relation to the conversation of his wife recorded in the U.S. with others and she denied some portions. The court held that the act of tapping by a husband of conversation of his wife with others without her knowledge was illegal and amounted to an infringement of her right to privacy under Article 21 of the constitution. These talks even if true cannot be admissible in evidence.

A similar view held in Havovi keris Sethna vs Kersi Gustad Sethna,2011.

In Vishal Kaushik vs Family Court and anr, the Delhi High Court in a decision 2020 has held that strict rules of admissibility do not apply in cases of proceedings under the family courts act.

However, it is amply clear that the right to privacy includes the right to hold a telephonic conversation without any inference. It may be noted that the right to privacy is not absolute and is subject to the procedure established by law. The relevant provisions of the Indian Telegraph Act,1885 wherein that interception of telegraphic messages, including telephone calls has been permitted provided the prescribed procedures have been adhered to.

It can be said that there is no legal impediment in recording the telephonic conversation with the prior written consent of all the parties to the telephonic conversation and the same is no a violation of the right to privacy and shall be outside the ambit of interception. However, the recorded conversation can only be used for the purposes for which the consent has been obtained.

In one of the case, the man had submitted an audio-video recording of his wife talking to her friend, which he had recorded by bugged the bedroom, as evidence to secure a divorce, the court on the admissibility of the evidence collecting by violating ones right to privacy, the court said that the evidence shall be taken on record if the court is of opinion that such evidence will assist in dealing with the dispute effectively.

In a judgment of the Delhi High Court in Deepti Kapur vs Kunal jhulka  2019, where it has been held that even if the evidence is collected in breach of privacy of a party. Section 14 of the family court act empowers the family court to receive the same.

Right to privacy is an essential component of the right to life and personal liberty under article 21. It is not an absolute right but it is subject to reasonable restrictions for prevention of crimes and when there is a conflict between two arrived rights, the right which advances public morality and public interest prevails. Many women are unaware of their rights, so awareness-raising women is an important agenda as a method to prevent and punish such offenders.

~Adv Ankita Wadhwa

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