Sapni looks at ​“What’s Sex Got to Do with It? Mapping the Impact of Questions of Gender and Sexuality on the Evolution of the Digital Rights Landscape in India”,authored by Vrinda Bhandari and Anja Kovacs from the Internet Democracy Project.

Last week, news broke that the Uttar Pradesh government had hired a company to ​“keep an eye” on internet usage through search data to monitor people who look up pornographic content. It is a mechanism to empower the newly established ​“UP Women Powerline 1090, which will be alerted when a search for pornographic material is initiated. The Special team and the programme are part of efforts to ​“curb crimes against women” in the wake of ​“increasing use of the internet. ”

It can be argued with conviction that the initiative does not pass the tests laid down in Puttaswamy, the Indian Supreme Court’s seminal decision that held that Indians have an inherent and Constitutional right to Privacy. Certainly, the fears of being subject to a surveillance state that tracks every movement on the internet is worrying. However, IDP’s What’s Sex Got to Do with It? offers more to such decisions, whether executive or otherwise, in the Indian environment. It rightly identifies nuances that are critical while the next half billion access the internet. Gender, caste, religion and sexuality are aspects of everyday Indian life that are often held to an unachievable normative standard by the laws that govern the land, quite in contrast to reality.

The report looks at the intersection of the law in India relating to digital rights with gender and/​or sexuality. The Constitution of India is obviously a part of the spectrum, with fundamental rights forming the foundation of all such interaction. The criminal laws, like most countries in the Global South, remain paternalistic and protectionist at this intersection rather than the ideal reformative cloak they are to adorn. In the Indian case, as the report states, this has also given way to the ​“weak woman who needs to be protected” phenomenon, often undermining the agency of women. It also becomes a tool for imposing notions of morality that do not hold water. The absence of civil law based rights to women and gender and sexual minorities is telling. The overarching paternalism of criminal law whereby the agency moves away from them in many cases is a cause for concern. The Information Technology Act, 2000 follows suit by excluding consent as a consideration from the framework criminalising ​“obscene material”, a reiteration of the reduced agency. Such a stance is desirable only in the case of children, which the law rightly identifies. While other criminal laws regularly receive attention, the case of sexuality and reproductive rights are often ignored. The discussion on the PreConception and Pre-Natal Diagnostics Techniques Act, 1994 is remarkable in this regard. It further goes on to spell out the various sectoral regulations as well as the internet-specific legislative instruments, both that are present and upcoming. A look at these legislative instruments from the lens adorned by the report clearly indicates that the broad umbrella of obscenity serves as an extension of the arguments based on morality, ultimately affecting the agency of women, and gender and sexual minorities.

The core idea of the report brilliantly distinguishes women as objects and subjects of state control in different instances. This difference is often ignored, many a time even by the legislators, only to be identified after prolonged arguments in Courts. This adds to the layperson’s difficulty in understanding the functioning of the law.

Women have been made objects to be controlled in the interest of ​“Indian culture” time and again. This idea has been extensively explored in the third chapter of the report. The rise of OTT platforms allowing independent content creation has finally given space for artists to explore beyond the tightly regulated censorship norms. This does not seem to have gone well with an overwhelming number of culture-preservationists. After all, attacks on the person of an individual still remain the ultimate weapon of culture-preservationists and normalisation of autonomy – bodily and otherwise, breaks it down. The Petitions filed in various High Courts across the country as well those in the Supreme Court discussed in detail by the report, go on to attempt defining morality, and as an extension, what is culturally acceptable. This often misses the fact that culture is not a constant, but an ever-evolving concept. Moreover, an interesting fact that meets the reader is the number of men rallying to the Courts to ​“protect” women but only do so to actually protect their ideas of what an Indian woman ought to be. It couldn’t have been more succinctly put than the statement by Kaul Padte and Kovacs as ​“if female sexuality is the culprit, public morality is the victim”. This historic blunder has been repeated by Courts that lack diversity time and again, reflected clearly though the cases discussed in the report.

Every argument that advocates restriction of access and distribution of pornography, ostensibly for the protection of women, is based on Art 19(2) of the Constitution of India. However, the requirement of due process as a part of such restriction seems to ignore due process. In the case of pornography, the imposition of the idea of ​“morality” which a person or a certain part of the society deems appropriate has enabled this disregard of due process. There are multiple fallacies to such cases. They limit the expression of sexuality and autonomy of women which has found light after years of struggle. They also pose a threat to have overarching effects which are not limited to the narrow questions raised in a matter before the Court, which often can push back the hard-attained changes in women’s choices on sexuality by decades.

Most development facilitated by the internet still hinges on the safe harbour provided by the law. If Courts, Parliament and the Executive hold the ISPs and other intermediaries as the gatekeepers responsible to enforce prevalent morality it becomes a slippery slope of excessive censorship. Such efforts by the Courts also tend to weaken the intermediate liability régime. The proposals such as backdoors to End to end Encryption can have destructive effects on the rights of women and other gender and sexual minorities. It can also pose a challenge to cyberspace security. In an effort to police through weakening the intermediary liability system that exists today, under the IT Act and its Rules and the decision in Shreya Singhal, we might be digging many graves, including challenges to integrity and national security. The solution of automated moderation ignores the deep-rooted biases it brings along. This has disastrous effects on many lives in addition to hindering science, literature, art and learning.

An autoblock doctrine was identified by the Supreme Court while adjudicating prenatal sex determination advertisements, whereby ISPs were mandated to automatically block search results related to certain keywords. It can easily fall into the over-broadening trap, creating a chilling effect on expression which the Court doesn’t seem to have considered. It clearly poses a threat to the freedom of speech and expression.

Censorship has not only been restricted to intermediary liability and ​“moral governance” (as the authors call it). Adding conditions to bail that prohibit the use of social media platforms in cases ranging from rape to petty fights, have been a rising trend. When such bail conditions are imposed in the name of protecting the woman victim, it can have little or no effect on the victim’s privacy. However, it violates the principle that bail must not be punitive in nature by restricting access to information. All these instances indicate that judicial interpretation of the law often misses the point, and continues to perpetuate non-legal morality in cases involving the ​“protection of women”.

Moving on, the authors address gendered experiences of being subject to various laws applicable to expression on the digital space. The authors argue that the cost of such expression varies based on sex and is always greater for women and gender and sexual minorities. In the exercise of proving their point, a nuanced analysis of recent decisions from various Courts of the country is presented.

The right to access the internet, which is a medium for learning and a space for expression which every adult can exercise their agency, was upheld by the Court in the first case discussed. It struck down the validity of a regressive prohibition of the use of mobile phones in Faheema Shirin. The case of Rehana Fathima whose actions of allowing videographing her children painting on her bare torso was too much for the Court to not be condemned. The Court’s reasoning in this matter was based on the ​“duties of a mother” who is placed on a pedestal, only to enforce morality which she is not legally a subject to. One only wonders how this case would have been decided if the parent in question was male. The Kerala High Court giving these two interpretations to the freedom of expression depicts the lack of uniformity in the standards of evaluation of our Courts. This tendency to control the expression of the underrepresented on the internet pervades class. The ban of Chinese Apps in India in June easily fits here. Multiple suits were instituted in Courts across the USA where former President Trump tried to replicate the ban. However, India did not see any legal challenge despite the many grounds, which we elaborated here.

The discussion further moves on to the right to anonymity of survivors of sexual harassment who published them anonymously on the internet. A bare reading of the decisions in the context of fundamental rights clarifies the authors’ position. The entitlement of the powerful male against whom such allegations are levelled have mostly trumped the rights of a survivor, preventing her from even publicly sharing her story. The cardinal principle that protects the accused in criminal law triumphs here. However, such interpretation fails to consider that in cases of violence against women, the law acknowledges the power imbalance in society. Facilitating gag orders and criminal defamation against anonymous allegations does not help the cause of justice. It is extremely bothersome that even the foreign concept of the right to be forgotten, as enunciated in the GDPR, was brought to Indian Courts by the alleged accused. The Courts, in their wisdom, acknowledged this over the right to privacy of a victim and her freedom of speech and expression. This certainly is a slippery slope for the law, but protecting the accused reflects how the victim’s rights are always side-lined at the behest of patriarchy.

It is equally surprising and laudable that a decision of a lower Court finds place in this discussion in the report. The law that directly affects the larger population of this country is decided by these Courts. The decision by the Judicial Magistrate First Class in Animesh Boxi appreciates the feminist interpretation of bodily integrity within the privacy framework by convicting the accused for non-consensual sharing of sexually explicit photos of the victim. It is a reiteration of the need for judges who disregard the shackles of patriarchy and think beyond the text of the law. It is a lesson for the need to integrate sensitivity to context, politics and power dynamics into the reading of the law, at every level of the judiciary.

This piece of literature is important at this juncture of the development of the feminist perspective on digital lives in India for many reasons. It clearly shows how deep-rooted norms of morality within the law affect women and other gender and sexual minorities even when society advances. The continuous existence of these shackles defeats the progress in individual autonomy aided by technological advancement. It also signals how the absence of such morality within the law can help women and other gender and sexual minorities lead better lives. Norms of culture, gender and morality make everyday life a battle for millions. The actual treatment of all human beings as equals by the law and the judicial system will help achieve the much-deserved normalcy and legitimacy to these lives. The attempts by persons to infuse such morality into the law by taking judicial recourse fails us. Achieving a society that does not discriminate and police based on prudish ideologies of culture is not too much to ask for.

Read the full report here.