Verbal abuse faced by women online can range from sexist comments to rape threats and is a growing issue both nationally and globally. Asking as to what extent the law can provide recourse to these forms of abuse, this article raises various questions around the ways in which the Indian legal system as a whole, and the Information Technology Act in particular, constructs and responds to women’s rights. By Richa Kaul Padte

The present article is a version of a longer discussion paper co-authored by Anja Kovacs and Richa Kaul Padte. The author would like to thank colleagues at the Internet Democracy Project, and participants in both the research and national consultations.

> Girls should not face these problems. Girls or females should not find themselves in a position where they have to go to the police. They should not give their personal information and should not post their original photographs on the Internet. Anyone can snatch the photograph on the Internet and use it for their own purposes. One should do those things to avoid probable offences – A Representative from the Mumbai Cyber Police Cell, 22 January 2013

> Everyone I know, any normal person I know, is very uncertain of any law and is very unconfident about…the legal framework. First step to the police station and you know it is not going to be of any help to you.…it is going to be a headache for you…in terms of everything…in terms of listening to you, in terms of helping you… I am always hoping that it will never ever go to the realm of actually hitting the legal framework – Muksaan, an active social media user, 11 December 2012

> Most of what we read is how Section 66A is used against the Internet users. I am not sure that if I should go to the police if I face abusive speech online – Kalpana, an online activist and social media user, 22 January 2013

From sexual harassment, to rape threats, to gender-based hate speech, women face disproportionate levels of abuse online. In “‘Don’t Let It Stand!’: An Exploratory Study of Women and Verbal Abuse Online in India”, research findings indicate that this is a growing issue across the world, to which women develop various strategies and responses. However, research also shows that these strategies very rarely include the law. This article asks how and to what extent can the law in India help? ¹

For many women living in India, there are several reasons why legal recourse is an absolute last resort, or simply not a resort at all. Engagements with the police often result in women being disbelieved, or worse, blamed, for the harassment they face. Given that cyber laws are relatively new, a lack of knowledge around these provisions – on both the part of women and the police – may pose additional barriers.

In other cases, the law itself may be considered problematic. For example, the most well-known internet-related law in India is the controversial Section 66A of the Information Technology (Amendment) Act (IT Act) 2008, which has been extensively criticised for making possible widespread censorship. The particular difficulties that women face online have in fact been frequently used as a justification for this law, which Union Minister for Communications and Information Technology Kapil Sibal says was created to ​“protect women”.

But do women feel protected? Research shows that even women who face a great deal of abuse online refrain from resorting to Section 66A, given the implications that it has for free speech. Furthermore, women’s reluctance towards and negative experiences of engaging with the law and law enforcement raises various questions around the ways in which the legal structure as a whole addresses women’s issues and their rights.

This article seeks to understand whether existing legal provisions to address verbal abuse online in India are sufficient, and begins by asking the question: how do laws in India construct women? Do they seek to empower women, or are they largely predicated on a notion of ​“protection”? While considering the various laws that can be drawn on to specifically address the verbal abuse of women online, the article will also put forward a number of possible alternative legal solutions, intended to serve as a starting point for further discussion.

Objects or Subjects of Obscenity?

A consideration of the ways in which Indian law seeks to address women’s issues and rights immediately brings to the fore the most visible marker of gender – the female body. There is a disproportionate emphasis throughout the Indian legal structure placed on the visual representation of women, women’s bodies and their sexuality. The creation, publication or circulation of such imagery is believed by many to contribute to the exploitation of women. In this manner, the protection of a woman is seen as synonymous with the protection of her image.

But who are these laws really protecting? Is the culprit female sexuality? If so, who is the victim – public morality? The notion of morality vis-à-vis female bodies and sexualities is deeply entrenched within not only our social culture but our legal culture as well. While many morality-driven laws are found within the IT Act today, they are preceded by offline laws that came into existence far before the cyber era. A consideration of the development and implementation of these laws can serve as a wider insight into the impetus of law-making in relation to women’s issues.

Section 292 of the Indian Penal Code (IPC) defines obscenity as that which is ​“lascivious or appeals to the prurient interest or tends to deprave or corrupt persons”. In the IT Act, too, specific sections have been included in order to deal with defining and restricting the ​“obscene” on the internet: Section 67, publishing or transmitting obscene material in electronic form, and Section 67A, publishing or transmitting of material containing a sexually explicit act in electronic form. The latter was added when the Act was amended in 2008.

What is noteworthy here is that despite the fact that all offline laws apply to digital media, the punishments under the IT Act are much stronger. Sections 292 and 67 perfectly mirror each other; however, the former carries a fine of Rs 2,000 whereas the latter can lead to a fine of up to Rs 5 lakh. In the case of subsequent convictions, the fine under Section 292 can be up to Rs 5,000, whereas its cyber-mirror Section 67 can levy a fine of up to Rs 10 lakh. The seriousness with which the crime of obscenity is viewed is undoubtedly heightened by the change in medium. Section 67A is an entirely new legal provision with no offline precedent; it is the inclusion of a new crime under which all fines can be of up to Rs 10 lakh.

Stated exceptions to all the above laws are materials that can be proved to be ​“justified as being for the public good”, extending to art, literature, science and learning. However, with no scientific or sociologically-accepted definition of what is depraved or corrupting, a large breadth of interpretative space is created as per the personal values, views and perspectives of individual judges. For example, in a case pertaining to the description of the female anatomy in a work of literature, a high court judge believed the content to be obscene, whereas the Supreme Court judges overruled the decision, believing it to be for the advancement of art (Jaising 2006).

Furthermore, the definition of obscenity as lascivious (lustful, with a desire for sexual practices) or appealing to the prurient interest (arising from indulgence in lustful thought) is, as Indira Jaising points out, a concept of obscenity deriving from 19^th century Christianity, ​“according to which anything to do with sex is dirty and obscene” (ibid: 121). As the legal system sets up sexual desire as linked to immorality and the repression of this desire as linked to morality, it is important to understand how these notions of morality historically arose in the Indian legal framework. The definition of obscenity as provided in Section 292 was taken from an English case in 1868, where the presiding judge declared,

> I think the test of obscenity is this: whether the tendency of the matter charged as obscene is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall (Mazzarella 2011: 338).

Who is the judge referring to as having minds that are ​“open to such immoral influences”? In colonial times, this was probably used to talk about the subjects of colonisation: the barbaric, the illiterate, and by extension, the easily corruptible. Today, these standards remain much the same; however, those wielding the censor stick have changed. Having inherited morality, power and literacy from their colonisers, the Indian middle class perpetuates the parameters of the censor – to protect themselves from others.

While exploring the role of British rule in the development of obscenity laws, it is also important to consider the ways in which culture and morality become intertwined in the context of an ex-colonised nation that seeks to define itself against the legacy of its past rulers. ​“Indian Culture” has been mythologised – in particular by the Hindu right – into a singular, monolithic past of purity, separable from western influences. Subsequently, the female body has become the site on which this battle for culture plays out, where the sexless, clothed Bharatiya naari is the epitome of cultural purity, whereas the reality of her body and lived experience are seen as affronts to this mythic culture, as something to be curbed. As Brinda Bose writes,

> It is the woman who represents both the threat of transgression in Indian society and the need for its control, and her body is the single signifier that sums up the problematic (2006: xxiv).

The Death of Agency?

The issue of the female body – and its control – as being central to the notion of morality is nowhere clearer than in the Indecent Representation of Women (Prohibition) Act (IRWA) 1986, which is currently under consideration for amendment by Parliament to include virtual spaces. The Act defines the ​“indecent representation of women” as that which is ​“indecent or derogatory to or denigrating women or which is likely to deprave, corrupt or injure the public morality or morals”.

Furthering the ideological impetus behind Section 292, the IRWA is steeped in ​“the notion that anything sexual is obscene and that respect for women is equivalent to treating them as sexless” (Kishwar and Vanita 2006: 110). A law that in name serves the interests of women, in practice, seeks to curb the sexual and bodily freedoms of women in the name of ​“public morality”, and by extension, culture.

Unlike Section 292, the IRWAs vague framing of what counts as ​“indecent” has not led to discrepancies in the law’s implementation. This has, however, worked to the detriment of women. Legal activist and author Flavia Agnes writes,

> Conversely, the equation of indecency with nudity and sex allowed all other portrayals of women to pass off as ​‘decent’. When women clad in saris were depicted in servile, stereotypical roles, these images were not attacked as indecent (Agnes 2006: 139).

Therefore, while women’s groups are seeking to include into the definition of indecency those images portraying women in domestic or submissive roles, these attempts have had little success, thus further illustrating the way in which it is a wider narrative of morality that governs these laws, rather than a genuine commitment to the empowerment of women and a gender equal society.

It is important to note, however, that much of the impetus behind the introduction of the IRWA came from urban women’s groups who, taking their cues from similar campaigns in the western world, fought for this law as a means to prevent the exploitation of women in visual culture. However, given the tensions arising from the battle for ​“culture” in the context of a powerful conservative bloc seeking to silence dissenting voices, the question of where censorship sits with women’s rights advocates will always remain at the heart of the issue, and as research has shown, in the internet age, perhaps more so than ever.

The underlying assumption around which laws focusing on obscenity and (in)decency in India are based on the belief that sexuality is an inherently corrupting force that serves to destroy the moral and social fabric of a culture, and therefore, something that needs to be suppressed. Historically and globally there has been a lot of discomfort around the female body, and in the context of Indian politics and its grappling struggle with cultural identity, the chastity and purity of the female body has come to be seen as synonymous with morality and cultural worth.

It is through this patriarchal framework that the Indian legal system sees a woman’s body as something to be protected – by covering it up. This idea of nudity as exploitation has also been endorsed by some feminists, who argue that a sexualisation of the female body is insulting, humiliating and a marker of objectification. However, without a consideration of consent and a woman’s right to self-expression, it is questionable to what extent these laws that seek to cover up flesh can usefully contribute to the wider struggle for women’s empowerment.

Consent and the Censor

> a woman’s right not to be exploited, degraded and demeaned by the sexual use of her body is counteracted by her right to consensually expose her body in whatever way she deems fit (Bose 2006: xx).

Perhaps one of the most neglected questions in relation to a wide range of women’s issues asks: where laws are meant to protect women, what emphasis do they place on consent? When considering issues arising within the arena of obscenity, indecency and immorality, what space does the law provide, or deny, to women’s own desires and rights to express themselves as sexual or independent individuals? The IRWA, for example, fails to acknowledge the idea that women may choose or enjoy certain visual representations of themselves. Which leads to the question, can a woman who publishes an ​“indecent” photograph of herself on the internet be booked under a law originally designed to ​“protect” her? If so, what is being protected under these laws – women, or an idea of womanhood? As we have seen, legal justice tends to side with the latter.

In the IT Act, the question of consent is particularly relevant with regard to three sections. Section 66E of the IT Act concerns the violation of privacy, which criminalises capturing, publishing or transmitting ​“the image of a private area of any person without his or her consent” (emphasis mine). In contrast to the obscenity and indecency provisions, Section 66E is a progressive clause that clearly acknowledges consent.

However, Section 66E stands in stark contrast to the following two sections of the IT Act: Section 67 and Section 67A (discussed previously). Neither 67 nor 67A allow for the provision that consensual or voluntary publishing of such material is acceptable, thus effectively overriding the provision for consent in 66E. Also noteworthy is the fact that punishments under 67A are exactly the same as those under 67B, which pertains to child pornography. The exposure of a woman’s body (irrespective of her consent in the situation) is thus effectively equated to the sexual exploitation of children,² indicating the extent to which a woman’s consent is overshadowed by the need to fulfil public morals. It is perhaps then accurate to conclude that until consent is on the table, women are not being dealt a fair hand.

66A: Verbal Abuse Online

The laws discussed so far pertain predominantly (though not solely) to the visual representation of women online. However, what are the ways in which verbal, textual or language-based harassment plays out, and what are the legal provisions to address these violations and violences? And, against the background outlined, how useful are the existing laws?

Section 66A of the IT Act was included after the Act’s amendment in 2008, and criminalises the sending of offensive messages. Under the IT Act, it is the most specific legal recourse for the use and misuse of words, and key to understanding the legal response to verbal online harassment.

As previously highlighted, Kapil Sibal has argued that Section 66A was designed specifically, among other things (most notably spam), as a response to harassing speech and verbal abuse – phenomena experienced disproportionately by women. However, despite this perhaps well-intended impetus behind the law, its vague framing leaves much to be desired for many. Recently in the news for its draconian enforcement of censorship, the problems with 66A are rooted in the language of the law itself.

Under 66A, any message or information sent for the purpose of causing ​“annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will” is punishable. Given that none of these words are defined within the law, and otherwise have no singular denotative definitions, the scope for interpretation is huge. Emotive terms such as“annoyance” or ​“inconvenience” are as open to subjective interpretation as the ​“moral injury” posed by a violation of the obscenity laws. In addition to this, sub-section C of 66A states that the law can be applied to ​“electronic mail messages”, which in effect includes private mobile phone text messages that may serve to ​“annoy” or ​“inconvenience” someone.

Section 66A is a cognisable offence, which means the criminalisation of speech under the law is subject to the ways in which the merits of the case are interpreted by the police, to whom the complaint is filed. As a result, the opposition to 66A has been far greater than its defence, and many people of all genders consider it to be a violation of the right to freedom of speech, and a means for the state to enforce greater censorship in its own interests.

Arrests made under 66A speak volumes about whom the law is really protecting. Following the death of Shiv Sena leader Bal Thackeray in November 2012, 21-year-old Shaheen Dhada questioned the shutdown of Mumbai city in a Facebook status. Renu Srinivasan, her 20-year-old friend, ​“liked” the status, following which the two women were arrested. One of the laws used to arrest them was Section 66A. In another case, a man with less than 16 followers on Twitter was arrested for alleging that the son of India’s Finance Minister P Chidambaram was corrupt, subsequently leading to the Twitter user facing up to three years of imprisonment along with a fine. In light of instances such as these, free speech activists and many social media users believe that Section 66A will become a tool used in the interests of the powerful – either individuals or the state – in order to enforce censorship and suppress dissent.

As a result of the manner in which 66A can and has been used to restrict the freedom of expression, many of the most abused women online maintain that despite the high degrees of abuse they face, this would never be a law to which they would take recourse. Given that the issue of gender-based abuse on the internet remains one of urgent and large-scale propensities, what are the legal alternatives, if any?

Legal Alternatives

The IPC contains various sections that may be used to address verbal abuse online. Section 509 – criminalising a ​“word, gesture or act intended to insult the modesty of a woman” – was originally designed to address the widespread issue of sexual harassment on the streets. However, Section 509 can also be applied to the harassment of women in virtual spaces. In 2001, a young man in the 11^th Grade was convicted under Section 509 for making vulgar remarks about female classmates online: a successful first use of this law to curb online harassment.

In addition to 509, under the Criminal Law (Amendment) Bill 2013, the addition of Section 354A to the IPC provides a more comprehensive definition of sexual harassment, including the showing of pornography, demands for sexual favours and making sexually coloured remarks. Furthermore, Section 354D of the new bill pertains to stalking, explicitly including crimes that involve monitoring the electronic communication of women.

Section 507 of the IPC – criminal intimidation by anonymous communication – may be used by women facing threats online. Given the fluidity of identities and the proliferation of ​“trolls” in virtual spaces, the notion of ​“anonymous communication” comes into significant play, allowing women recourse to the law without knowing the ​“real” or ​“true” identity of their harassers.

Another relevant section of the IPC is Section 499, which pertains to defamation. Women bloggers have often expressed concern over the ways in which the abuse they receive is an attack on their families or their names.³ The repeated use of gendered insults or suggestions of women being subjected to sexual acts can be perceived as slander to the reputation of a woman, particularly within her family or community. Section 499 of the IPC may, therefore, perhaps be used to address this aspect of online abuse, though it is unclear as to whether any precedents for this exist.

However, a pertinent question remains: can a woman choose to use another law in lieu of 66A? Since the inclusion of Section 66A into the IT Act (and the introduction of the IT Act itself), internet-based crimes that could be dealt with under relevant sections of the IPC are nearly always booked under two acts – the IPC and the IT Act.

Given that 66A is a cognisable offence, a woman may, in theory, argue for another law (or set of laws) to be used when she goes to register a complaint. However, given women’s overall mistrust of and unfavourable experiences with the police, the extent to which women will be willing and able to make these arguments with success is perhaps questionable. Ultimately, the decision is in the hands of law enforcement, for whom the grounds on which someone may reject Section 66A may be a subject that seems as alien as unnecessary.

Do We Require Legal Reform?

As this article has shown, the laws pertaining to women – both online and offline – are often predicated on a notion of protection rather than empowerment. From indecency and obscenity provisions that emphasise morality over consent, to the various problems raised by the IT Act (and the difficulties in implementing its alternatives), are the current laws enough in this context? Or, is there a need for a wider, more structural shift in the way women are represented by the law?

What one can note in the case of all the laws discussed above – and perhaps practically all the laws within the Indian legal system – is the way in which they emphasise the individual rather than the collective. In both the IT Act and the IPC, instances of harassment, intimidation and violations of privacy are seen as isolated crimes existing between the perpetrator and the victim, rather than as part of a structure that privileges certain groups of people above others. The fact that violence against women takes place through a wider and systemic marginalisation of women throughout society is not legally acknowledged anywhere.

Currently, the only legal provision in India that acknowledges the historical and structural marginalisation of any disadvantaged group is the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989, where we find a legal recognition of systemic marginalisation that general laws cannot sufficiently address. In light of this, it is maybe then through a legal acknowledgement of the wider, gender-unequal system in which crimes against women take place that the laws surrounding women may be strengthened.

However, the conviction rates under laws protecting women tend to be low, and they are believed by many to be ​“soft laws” without real consequences. Developing a law that recognises the structural marginalisation of women may either change this attitude or further entrench it. Therefore, whether a recognition of this discrimination should be developed through a separate act (as in the case of the scheduled castes and tribes example) or by incorporating it into existing laws – particularly pertaining to speech – that currently isolate and individualise crimes, are questions that need to be considered further.

When Speech Becomes Illegal

One could argue that the current provision against hate speech in Indian law is Section 153A of the IPC, which criminalises words, signs or representations that on ​“grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, [promote] disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities”.

There are three central problems with the law as it is currently structured. The first is that the threshold for when speech can be criminalised is unclear. In a report to the United Nations, Special Rapporteur Frank La Rue (2012) outlines the thresholds for hate speech: the speech must be of a public nature, present a real and imminent danger, and contain the intention to harm where the harm is obvious. It is only when speech crosses these thresholds that it should be criminalised. This is in stark contrast to Section 153A, which apart from hatred, includes ​“disharmony or feelings of enmity or ill-will” (emphasis mine), and like Section 66A, results in a legal situation where someone ​“feeling” insulted can result in criminalisation – or censorship – of speech. Therefore, one way to strengthen the laws around speech in India would be to explicitly adopt internationally-recognised thresholds for hate speech in order to prevent misuse of the law.

Secondly, while 153A addresses the incitement of hatred based on identity, it fails to account for unequal power relations between different groups. The law places all groups – religious, racial, etc – on equal footing, where the slander of an economically powerful majority can be equated with that of a marginalised community or individual. But, in order for hate speech laws to effectively curb hate speech rather than foster a culture of censorship, they must clearly also be anti-discrimination laws, where discrimination is understood as the historical and systemic marginalisation of a group of people on the basis of their identity.

Lastly, 153A only takes into account certain aspects of a person’s identity – excluding, most notably in the context of this discussion, gender. The phrase ​“on any other ground whatsoever” could perhaps be used to persecute people for hate speech pertaining to an individual’s identity on a variety of grounds other than those explicitly stipulated. However, there exists no legal precedent for this, and it is unlikely that a case pertaining to gender-based hate speech can be successfully tried under this law.

Many suggest, however, that hate speech laws across the world should include more aspects of an individual’s identity, extending to gender, sexual orientation and disability. A striking example of this is South Africa’s hate speech and harassment law – the Promotion of Equality and Prevention of Unfair Discrimination Act (2000) – which lists the grounds for identity-based discrimination as race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

Therefore, perhaps another legal solution to gender-based verbal abuse is to develop a more inclusive hate speech law that takes into account the systematic discrimination of people on the basis of different aspects of their identities, with high and rigorously applied thresholds for what ​“incitement to hatred” means.

Looking Forward

In a wider legal context that seeks to ​“protect” women – most often without taking into account their consent – how can we forge a legal response that truly advances women’s rights? It is firstly important to take into account how the representation of women through visual culture has been largely seen as immoral or indecent, and consider whether this framing is more restrictive than it is progressive. Furthermore, with the development of a law like Section 66A of the IT Act, which has been used to enforce censorship in the name of women’s rights, it is important to find legal alternatives that allow women to seek recourse without impinging on the freedom of expression.

In light of this, the possible suggestions this article makes are the use of alternative legal provisions, the development of a broader women’s law that accounts for systemic discrimination, the recognition of gender-based discrimination within existing laws, and the development of rigorous hate speech laws that take into account gender, amongst other aspects of an individual’s identity. Rather than providing solutions to an issue that extends to nearly all laws within India that seek to address women’s rights, this article hopes to have provided a starting point for further conversation, debate and discussion around possible legal measures to address the verbal abuse faced by women online.

References

Agnes, Flavia (2006): ​“Indecent Representation of Women” in B Bose (ed.), Gender and Censorship (New Delhi: Women Unlimited, Kali for Women), 138 – 43.

Bose, B (2006): ​“Introduction” in B Bose (ed.), Gender and Censorship (New Delhi: Women Unlimited, Kali for Women), xiii-xlvi.

Jaising, Indira (2006): ​“Obscenity: The Use and Abuse of the Law” in B Bose (ed.), Gender and Censorship (New Delhi: Women Unlimited, Kali for Women), 116 – 26.

Kishwar, Madhu and Ruth Vanita (2006): ​“Using Women as a Pretext for Repression: The Indecent Representation of Women (Prohibition) Bill” in B Bose (ed.), Gender and Censorship (New Delhi: Women Unlimited, Kali for Women), 107 – 15.

Kovacs, Anja (forthcoming): ​“An Assessment of India’s Compliance with UN Special Rapporteur Frank La Rue’s Recommendations Regarding the Internet and Freedom of Expression” (New Delhi: Internet Democracy Project).

La Rue, Frank (2012): ​“Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression”, 7 September (A/67/357), United Nations General Assembly, New York.

Mazzarella, William (2011): ​“The Obscenity of Censorship: Rethinking a Middle-class Technology” in A Baviskar and R Ray (ed.), Elite and Everyman: The Cultural Politics of the Indian Middle Classes (New Delhi: Routledge), 327 – 63.

Smith, S E (2011): ​“On Blogging, Threats, and Silence”, Tiger Beatdown, 11 October, viewed on 8 March 2013, http://​tiger​beat​down​.com/​2​0​1​1​/​1​0​/​1​1​/​o​n​-​b​l​o​g​g​i​n​g​-​t​h​r​e​a​t​s​-​a​n​d​-​s​i​l​ence/