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Cyber Bullying: Are The Existing Laws Enough?

With the technology advancement, there is a growing trend of cyberbullying. According to the data released by the National Crime Records Bureau, cyberbullying has increased against women by 36%, and the lockdown has further catalyzed this grim situation.

However, there is no data for people from the LGBTQIA+ community because NCRB does not create a separate category for them. The crime report mentioned only women and children, but this does not mean that these people are not facing any bullying or threat. Women and people from the LGBT+ community are the most vulnerable targets.

The Indian criminal justice system further exacerbates the problem; looking at the NCRB data, it comes to light that with every year passing, the pendency rate of cyberbullying cases is skyrocketing. Moreover, the saddest part is that the 21229 cases were actual but ended up without any conviction because there was not enough evidence or clues.[1] This shows the grim state of the justice system.

When the author analyzed the three volumes of the NCRB data, there was not at all mention of the people from the LGBTQIA+ community, leaving others even though there was no mention of trans people, who are the only ones 'recognized' or considered as the third gender.

There is not much awareness among the general public about other orientations in the LGBTQ+ community. Cybercrimes have been categorized into two categories, i.e., crimes against children and women. Trans women can file sexual harassment complaints under the category of a woman. However, the trans man cannot be the target of sexual violence because men in India cannot face sexual violence. Moreover, a separate category has not been recognized under the law, and they have to file their complaint only under the cis-man category.

Cyber Bullying

There is no clear definition of cyberbullying because it is not universally defined in any UN statute or international treaty. So, according to Merriam-Webster Dictionary was first used in 1998 and is defined as "the electronic posting of mean-spirited messages about a person often done anonymously."[2] However, the definition has evolved since then and now is more nuanced, "an aggressive, intentional act or behavior that is carried out by a group or an individual, using electronic forms of contact, repeatedly and overtime against a victim who cannot easily defend themselves."[3]

Going through the National Crime Record Bureau data, it has come to light that the cybercrimes against women have increased from 8306 in 2019 to 10521 in 2021. However, the story does not end here if a thorough look is given to NCRB data it shows that there were 7626 cases pending relating to cyberbullying against women and out of which only 348 cases completed the courts disposed of trial and 414.

Moreover, the rate of pending cases shot up in 2021 to 16562 cases, 117%, despite having such a vast number of cases, pending trial was completed only in 467 cases, and 531 were disposed of. India ranks the highest in the Asia Pacific region for cyberbullying, more than Japan and Australia.[4]

No specific law deals with the issue, even though it is not defined anywhere in penal statutes. However, certain sections of the Information Technology Act 2000 can be used to fight cyberbullies.

Legal Remedies Available
The Indian Penal Code 1861 neither defines nor punishes bullying as an offense. However, various sections of the IPC and Information Technology Act 2000 can be used to punish bullying. According to the present law, IPC sections 354-A, 354-D, 505, and 509 are filed when a woman registers a complaint of cyberbullying. Besides, section 67 of the IT Act is filed. The investigation then moves on as per the process. Nothing special is done to ensure speedy disposal of the cases.

Inability of the existing laws
The present law distinguishes or discriminates based on the gender of the victim. According to the sections of the IPC which deal with sexual harassment, only women can face sexual harassment. Furthermore, section 354-A of IPC states that "a man committing an act to:"[5]. This means that only a man can sexually harass a woman, or for that matter, no other woman could harass another woman, which was the case in the 'Bulli Bai'[6] case where one of the accused was a girl who could not be charged under sections of IPC. Moreover, section 509 states that "Word, gesture or act intended to insult the modesty of a woman"[7].

This section again protects only women. All the mentioned sections show their inability to protect people from other gender or identity to get protection or justice under IPC. All the sections in IPC which deal with stalking, harassment, and voyeurism are gender-specific and do not provide protection to people with different sexual orientations, not even to trans people recognized in the landmark Supreme Court Judgement of National Legal Services Authority v. Union of India. It was only in 2018 that Delhi High court passed an order which stated that a transgender person could file a complaint under section 354-A of IPC.[8]

In the IT Act, only section 67A protects cyberbullying. The problem starts with the law itself because it fails to categorize the crime based on the gravity of the offense. For instance, it mentions that "Whoever publishes or transmits or causes to be published or transmitted in the electronic form any material which contains sexually explicit act or conduct shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to ten lakh rupees"[9]. So even a heinous crime that intended to hurt the sentiments of a group or community will be prosecuted under the same law as the person who shared a porn clip.

According to section 41 of the Criminal Procedure Code, "the Supreme Court has significantly observed that even for a cognizable offence, an arrest of the accused is not mandatory and that an arrest in offences punishable with imprisonment below seven years or extending to seven years can only be made if the IO is satisfied that there is a reason to believe that the accused committed the offence and that there is a necessity for such an arrest,"[10] the problem is made worse.

Though the Supreme Court has repeatedly reiterated that "bail is the rule and jail is the exception."[11] Still, there needs to be a line that could demarcate the cases where this rule is to be followed. For instance, in both cases, local courts granted bail to the accused on 'humanitarian grounds' despite them committing such a heinous crime.

considering the rising rate of hatred in the country against oppressed castes and minorities, there is a need for a separate law that could deal with cyberbullying and hate speech simultaneously. Women are considered soft targets when bullies want to attack a particular community.

They attack women from that community and start harassing them sexually on social media. This scenario does not just have one element of cyberbullying but also an element of hatred. There are sections in IPC 153A, 153B, and 505 which deal with hate speech but the problem with these sections is that they cover just one aspect of the solution.

Conclusion
The present laws are ineffective in curbing this menace. To curb this, a two-pronged approach has required a law that could contain both the aspects of sexual harassment and religious bigotry; most notably, the law should be gender-neutral. India could take the example of the Public Order Act 1986 of the UK, which states that "hatred on the grounds of sexual orientation" protects against discrimination on sexual affiliations. So, this law could be modified to also include the communal aspect to protect anyone from cyberbullying.

This course of action is necessary because, according to Amnesty International's report on online harassment in India, it showed that the more vocal the woman was, the more she was targeted.[12] As religious bigotry rises, so as the bullying on the religious lines. Even after looking at the NCRB data, the author could not get a separate category of offenses of communal bigotry committed in the form of cyberbullying. Besides, fast track courts could be established to deal with the cases where women are bullied over their religious identity. This would ensure swift disposal of the cases.

Moreover, it has been more than eight years since the National Legal Services Academy v. Union of India case, where the Supreme Court recognized the third gender as a different category. Still, the government and its agencies are not following the orders. For instance, in the NCRB data, there are still two categories for sexual harassment-related cases: women and children.

Furthermore, it was only in 2018 that the Delhi High court clarified that transgender persons could file sexual harassment complaints under section 354-A of IPC. All this shows that laws on these aspects are scattered, and there is no universality in law. The central government argues that since the 'law and order' are the state subjects so it is the responsibility of the state to curb such activities.

However, how can a state control the cyber bullying activities when the perpetrator is committing crime from some state or country. So, at the end it becomes the duty of the central government to come into the picture and take some concrete step. With all these arguments it becomes clear that the need of the hour is to draft a new law to accommodate all these aspects and address the rising cases of cyberbullying in any form.

End-Notes:
  1. Crime in India 2021, Table 17A.3, Vol 3, NCRB (2021).
  2. Crimes in India 2021, NCRB, (2021). Crimes in India 2019, NCRB, (2019)
  3. Smith, P. K., del Barrio, C., & Tokunaga, R. S., "Definitions of bullying and cyberbullying: How applicable are the terms? In S. Bauman, D. Cross, & J. Walker (Eds.), Routledge monographs in mental health. Principles of cyberbullying research: Definitions, measures, and methodology" (p. 2640), Routledge/Taylor & Francis Group.
  4. Hanson, Paige, "2021 Norton Cyber Safety Insights Report", (2021), NortonLifeLock.
  5. IPC, 1861, 354-A
  6. Narayan, V, "Bulli Bai Case: Mumbai Police Arrest MBA Graduate from Odisha: Mumbai News - Times of India." TOI, January 21, 2022, https://timesofindia.indiatimes.com/city/mumbai/bulli-bai-case-mumbai-police-arrest-mba-grad-from-odisha/articleshow/89028610.cms
  7. IPC, 1861, 509
  8. Anamika v. Union of India, (2018) MANU/DE/4785/2018
  9. IT Act, 2000, 67A
  10. Vasini, Bharat, Ankoosh Mehta, Srinivas Chatti, and Darshan Patankar. "Bail or Jail The Supreme Court Clarifies the Law and Lays down the Guidelines," Cyril Amarchand Mangaldas, (Oct 19, 2022, 1:14 AM) https://corporate.cyrilamarchandblogs.com/2022/08/bail-or-jail-the-supreme-court-clarifies-the-law-and-lays-down-the-guidelines/#_ftn12.
  11. Satender Kumar Antil v. Central Investigation Bureau & Anr, (2022) SCC SC 922
  12. Amnesty International, Toxic Twitter A Toxic Place for Women (2020).

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