Are laws against online harassment enough?

Late evening on the day of Eid-ul-Fitr in May last year, Congress social media convenor Hasiba Amin made an ugly discovery: Some trolls online were ‘auctioning’ her and several other Muslim women. Three days later, she went to Delhi’s Kishan Garh police station to file an FIR, a process which was not simple, she says. The SHO wanted to keep her phone to carry out the investigation and she fought her way out of it.

When charges were filed, she found only section 354D of the Indian Penal Code (IPC), which deals with the stalking of women, was applied. On May 17, she went to the station again, to ask the police to widen the scope of the case.

She says she was met with resistance, and that it was a while before they accepted her application to apply more sections to the FIR. The Sections 503 (threatening injury, reputation or property), 509 (penal provision for insulting the modesty of a woman) and 354A (sexual harassment) of the IPC as well as sections 295A and 67A (punishment for transmitting of publishing sexually explicit messages) of the Information Technology Act, 2000 need to be applied to the case, she wrote.

Hasiba’s account shows that the policy landscape has a lot missing, says Anushka Jain of the Internet Freedom Foundation, a digital rights organisation.

“We do not have relevant legislation to deal with social media and technology, and so we have to make do with existing provisions,” said Jain. Despite rising cases, nothing has happened.

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However, there was Section 66A of IT Act, which had penal provisions for “grossly offensive” or “menacing” information sent out using a computer or communication device. But it was struck down by the Supreme Court in a landmark judgement in 2015. The SC found the section unconstitutional as it violated the freedom of speech guaranteed under Article 19(1)(a) of the Constitution.

Shreya Singhal, a 21-year-old law student, had filed the case after two women were booked by the Thane police Facebook comments on Mumbai’s shutdown on the day of the funeral of Shiv Sena supremo Bal Thackeray.

Jain said that the law did not define “offensive” messages even though it sought to penalise them, and this vagueness allowed governments to target those critical of them.

“Any such law has to be precise, narrowly-tailored that strikes at the heart of abuse and yet, does not compromise free speech and freedom of expression,” said Jain.

Understanding the need for a provision for the protection for women facing harassment online, the government constituted a committee in 2017 headed by former Law Secretary and Lok Sabha Secretary General T K Viswanathan to look at the law after the Section 66A of the IT Act was struck down.

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In its report, the Committee recommended amendments to sections 153C (incitement to hatred) and 505A (provoking violence) of the IPC, to include electronic dissemination and to include discrimination on the grounds of religion, race, caste or community, and gender, respectively. Besides, amendments to section 78 of the IT Act, so that cases filed under the Act are not investigated by officers below the rank of Sub-Inspector, and, addition of sections 25B and 25C to the Code of Criminal Procedure to institute State Cyber Crime Coordinators and District Cyber Crime Cells were suggested.

Gulshan Rai, a member of the Committee, who was the first Chief Information Security Officer at the PMO, told DH that the nation needs a law to deal with these cases.

“It is high time for India to have legislation to deal with these cases of online harassment. The IPC, which is considered the mother code for criminal legislation, has several provisions to deal with any possible situation. Yet, the time for a new legislation has come,” Rai told DH.

While precise provisions are needed, at the heart of every investigation lies an intent to solve a case, says noted lawyer and women’s rights activist Vrinda Grover.

“The impunity of cases like Sulli Deals and Bulli Bai show us that the police are not taking these cases seriously. There is electronic evidence and footprint – an IP address from where the message is coming from – making it easier to track down, forensically,” said Grover. “The police is unwilling and unable. Only when the outcry is loud that they are compelled to, they act”.