The report is authored by Malavika Rajkumar and Shreeja Sen and works in the backdrop of the premise that the internet has paved the way for new forms of gendered violence.
It strives to show that the existing concerns of access to justice in the offline space are “replicated” for online violence.
The report studies judicial Orders to understand the attitudes of the judiciary towards cases of online gender-based violence. It examines 94 cases in subordinate courts, high courts and the Supreme Court.
The report points out that gender-based violence facilitated by technology or online gender-based violence are forms of gender injustice that take place in online spaces, causing physical, sexual, psychological and economic harm or suffering.
Online gendered violence includes stalking, gender trolling, harassment, cyberbullying and unsolicited pornography, the report states.
The report points out the surge in cases of gendered violence and harassment of women in online spaces as the internet user base has substantially increased after the Covid pandemic.
Based on the study of various Orders of courts, the following are the main highlights of the findings of the 100-page report.
The report finds that the judiciary fails to recognise the online–offline continuum, that is, the “spilling over” of online violence into offline spaces with severe consequences.
The study reports that the gravity of online offences is often disregarded by courts. Moreover, where the accused is charged with committing both online and offline offences, courts tend to focus more on offline offences, the report notes.
While online violence is treated as a non-corporeal crime, “in reality, technology can accelerate or facilitate traditional crimes against women,” the report highlights.
Online gender-based hate speech
On account of the absence of statutory recognition of online gender-based hate speech, the report says it could not find any reference to such hate speech in the court Orders.
The report notes that the Council of Europe’s Additional Protocol to the Convention on Cybercrime defines sexist hate speech as “expressions which spread, incite, promote or justify hatred based on sex”.
The current legal provision on ‘hate speech’ in India is provided underSection 153A (promoting enmity between different groups on grounds of religion, race, place of birth and residence) of the IPC.
The report, however, highlights that the legislation traditionally interprets ‘hate speech’ concerning national security, terrorism and public order and fails to see it as a gender issue.
Non-consensual intimate image distribution
The study finds non-consensual intimate image distribution as a prevailing and recurring offence (75 percent of the 94 cases) across all cases studied for the report.
The report says, “Non-consensual distribution of intimate images occurs when someone shares an intimate image, usually an image of another person in the nude or engaging in sexual activity, without that person’s consent.”
In the context of Indian courts, the non-consensual distribution primarily occurs where men commit sexual assault on women by threatening to publish their intimate or personal images, the report says.
The report offers the solution to introduce a provision similar to Section 91R of theNew South Wales Crimes Act, introduced in 2017, which specifically criminalises threats to record or distribute intimate images without consent.
Patriarchal language of law
The report observes that the language of legal provisions emphasises patriarchal ideas or constructs rather than being rights-based.
For instance, to interpret the offence of ‘outraging the modesty’ of the woman under Sections354 (assault of criminal force on woman to outrage her modesty) and509 (word, gesture or act intended to insult the modesty of a woman) of the IPC, the Supreme Court has referred to the Oxford Dictionary for a definition of modest as— including, “womanly propriety of behaviour: scrupulous chastity of thought, speech and conduct (in man or woman); reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions”.
The report argues that violation of privacy becomes a better measure or benchmark to test gendered offences as opposed to traditional notions of ‘modesty’.
“The Puttaswamy decision (Justice K.S. Puttaswamy versus Union of India) is a significant verdict on privacy, which moves the definition beyond the realm of mere bodily privacy to one that recognises dignity and inviolable rights,” the report states.
Besides the legislation, the report notes an important finding that sexist stereotypes continue to prevail in courtrooms in cases of sexual violence.
Referring to courtrooms as “patently hostile spaces” for victims of gendered violence, the report stresses that innate sexist biases are observed both among judges and the lawyers arguing before them.
The study finds that several cases could not meet the threshold of evidence that is key to proving the guilt of a perpetrator. Consequently, such cases were not considered cases of online gender-based violence, the report adds.
The report notes that several challenges such as bringing in expert testimony, relying on witnesses and offering the right documentary evidence hinder an effective outcome of justice in cases of gendered violence in online spaces.
Besides the difficulty in accessing and admitting digital evidence, the report states that courts impose sexist bail reasoning and bail conditions that fail to keep the online public sphere in mind.
While the report explains that the courts have started to implement the right to privacy and led the emerging jurisprudence on social media governance in India, the report also acknowledges several areas that need urgent attention.
Following are the overarching areas where the report suggests changes to strengthen judicial responses to cases of online gender-based violence in India:
Courts must recognise the importance of the online public sphere and give equal importance to online gendered offences.
Non-consensual intimate image distribution requires specific and dedicated steps for redressal, including from courts as well as the legislative process.
Courts must deliberate on reforming institutional processes and procedures. Courts should uphold victims’ right to privacy, even where provisions on ‘outraging the modesty of a woman’ have been used and consider consultation with civil society groups.
Courts must not let procedural hurdles, including digital evidence certification, impede proper justice delivery.
Courts should hold online platforms accountable for harmful content. Courts should recognise the role of social media companies in profiteering out of the viral circulation of content, and address algorithmic amplification of content that undercuts the dignity and the rights of users.
The criminal justice system must undertake ecosystem-level changes in sensitisation and inclusive policies.