It has become appallingly obvious that our technology has exceeded our humanity-Albert Einstein

Amidst lockdown when the whole nation is fighting COVID 19, strange news had recently appeared from the national capital. Given the fact that the netizens are more active on their social media during this period, it was the most trending news on the internet and had gone viral sparking debates among the lobby of feminists over misogyny and the patriarchal societal mindset.

Introduction:
The facts are that a few guys in their 11th and 12th standards with a group named Bois Locker Room allegedly made certain remarks on underaged girls which were sexist and objectified them. Some even went to the extent of discussing raping them. As per the news reports, few of them have been arrested under 66A of the IT Act for cyberbullying.

The laws in various statutes restricting speech which is guaranteed under Indian Constitution and international statutes like ICCPR, 1966 and UDHR are intra vires constitution except when they do not fulfil the criteria laid down in A.19(2) of the Constitution or the tests laid down by the courts in subsequent interpretations. Looking at such provisions will help us in analysing the present case as there is no direct law addressing the issue, for instance, doxing, which is related to leaking or making public the private identifiable information about an individual. It is done without the consent or knowledge of the individual. Under A.21 of Indian constitution and recent judgement of the court in Justice K. S. Puttaswamy v. Union Of India, the right to privacy is an integral part of the right to life and is guaranteed under part-III of the constitution.

The Law Obscenity

292 deals with obscene content. In Ranjit D Udeshi v. State of Maharashtra [1] this section was held to be intra vires A.19(2). The ingredients of this section are, the matter is obscene
the accused has sold or distributed or imported or printed or exhibited or attempted or offer to do so.

The word obscene is open-ended and not defined. And Merriam Webster dictionary defines it as disgusting to the senses or abhorrent to morality or virtue. The necessary requirement is that it should excite impure thoughts in the minds of a reasonable or an ordinary person (reasonable person test).

So again the facts and circumstances become relevant in deciding upon obscenity as was laid down in Sreeram Saksena v. Emperor [2].

In Sukanta Haldar v. State of W.B [3] it was observed for it to be obscene it should rouse immoral sex. It was also held in R v. Hicklin [4], that test for obscenity is to see whether it depraves and corrupts those whose minds are open to such immoral influences…

In the present scenario the accused has perhaps distributed the photos in the group and also aroused the feelings by passing lewd comments with his friends on the photo.

293 mentions the punishment corresponding to the preceding section for a period extending to 3 years and fine on first conviction, broadly speaking. The requirement here is that the accused should be under the age of 20 years and should have distributed as in the present scenario (if it passes the test of the preceding section).

Forgery

With new technology in place it is very easy today to morph any photograph and with super-fast internet it has become handy to disseminate the same within a fraction of seconds. 463 of IPC is perhaps the most appropriate provision to deal with fake photos and alteration under criminal law [5].

Chapter XVIII deals with offences related to documents and property marks. 463 of IPC deals with forgery. In R v. Ritston [6], it was simply described as  every instrument which fraudulently purports to be what it is not.

464(1)(b) clearly brings out the picture that if such a document is transmitted by electronic mode fraudulently and dishonestly it would fall under this offence. 464(2) deals with alteration or modification of the document without lawful authority. All these points are further solidified in Daniel Hailey Walcott v. State of Madras [7]. In Chunku v. Emperor [8] the court while explaining dishonestly observed that criminal intention to cause wrongful loss or wrongful gain to another person is necessary. Also, actual loss or gain is not necessary but the intention.

In the impugned scenario the accused allegedly used the photos of victims without explicit permission or their knowledge and went to the extent of modifying them. Along with this, there was perhaps a clear intention to belittle the reputation of the victim by modifying the photos dishonestly. Punishment for this offence is stipulated in 465.

Information Technology Act, 2000

66 punishes offenders for sending grossly offensive information through communication service for a period extending to three years with fine. However, in Shreya Singhal v. UoI [9] the supreme court applied clear and present danger test and held the section ultra vires constitution using ​Brandenburg v. Ohio [10] (considered to be of persuasive value). But the police still uses it till date because there has been no amendment by the parliament to give effect to the Supreme Court decision.
67, 67A, 67B of this Act punishes a person for transmitting or publishing material which is:

1. obscene (or)
2. contains sexually explicit act (or)
3. depicts children in sexual/obscene act

via electronic medium respectively. The punishment on first conviction is for a term extending to 3 years with fine vide 67 and punishment on first conviction is imprisonment for a term extending to 5 years with fine vide section 67A, 67B IT Act. The proviso grants exceptions to these sections only on grounds of public good and knowledge of the masses, neither of which is the scenario here (even remotely).

Para 31 in State of Uttar Pradesh vs. Aman Mittal [11] says Section 67 read with Sections 67-A and 67-B is a complete code relating to the offences that are covered under the IT Act

The Court in Sharat Babu Digumarti v. Government (NCT of Delhi) [12] struck down the offences Under Sections 292 and 294 of Indian Penal Code in view of the provisions of Section 67 of the IT Act. This highlights the importance and purpose for which special legislation has been enacted.

Intimidation

503 deals with criminal intimidation and two primary requirements for the section are threat of injury and causing alarm and the inherent intent. In Amulya Kumar Behera v. Nabhganga Behera [13] the High Court of Orissa stated that intention to cause alarm is the sine qua non for an offence under this section. However, it is immaterial whether the other person is alarmed or not. The gist behind this section is that mental injury in some cases is more painful than physical injury. Also, it should be illegal in nature and in impugned case the alleged threat was of rape which is completely unacceptable and illegal in nature. It was observed in the case of Raghubar Dayal v. Emperor [14] that inhibiting the businessman from his right to trade was a criminally intimidating act.

Punishment for criminal intimidation is stipulated in 506. However, 507 is an aggravated form since the punishment is increased by two more years because of the fact that intimidation, in this case, is done anonymously or the person impersonates himself as someone else.

509 deals with the modesty of women. If the offender utters a word or any gesture or any act thereby with the intention that it is heard and more so it intrudes upon the privacy of a woman then it shall fall under the category of this offence. In the State of Punjab v. Major Singh [15] Bachawat, J. had said that:
 the essence of a woman's modesty is her sex and

Mudholkar, J. said that:
when any act is done to or in presence of a woman is clearly suggestive of sex according to common notions of mankind that act must fall within the mischief of the section[16]. Therefore in the current scenario, it is perhaps suggestive from the chats that the intention of the accused was to allegedly rape the victim and in the group chat it was it is imminent that the kind of language used and the comments passed over the morphed pictures of the women outraged the modesty of women.

Defamation

499 deals with defamation and requires either making or publishing allegedly defamatory statements about a person in the form of other words or writing or visible representations which have the capability of harming a person's reputation along with the intention for the same.

Reputation, here means not what a person thinks about himself but instead what others think about his standing and the same has been highlighted in several cases[17]. In Valmiki Faleiro v. Mrs. Lauriana Fernandes [18] the court said that it is how a person is held by others. Therefore reputation should not be confused with self-esteem. That is to say it should be done to a third person which lowers the estimation of the victim's character. In criminal law, intention to cause harm to reputation is sine qua non of defamation offence was held in Sunilakhya v. HM Jadwet [19]. However, this case pertains to written defamation in the form of libel which includes pictures too and can come under visible representations.

Note that a defamation suit can be of a civil nature also in which the intention is not the requirement which is not the case in a criminal proceeding. However malice plays a key role in civil disputes related to defamation. In the Palani Asari case [20] though ill-will was absent, the high court held that words were prima facie defamatory and malice may be presumed.

Counter Allegation

There is a possibility that even the defendant later uses this argument to file a defamation suit against the victim as his reputation was deeply hurt due to sharing of his private chat resulting in a biased view of the issue. It may be presumed that there was malice to defame the defendant and a suit can be instituted as in Vivek Goenka v. YR Patil [21]. Notwithstanding this, there are exceptions to this rule which include imputation of truth for the public good, which is a justification for being a statement of truth for public benefit (or) caution in good faith which is to protect the interest of self and the public good at large so that it does not happen to someone else again. It is therefore left to the court to analyse in given facts and circumstances

500 is the punishment section for the preceding section on defamation. The imprisonment extends to two years with/without fine as per the circumstances of the case.

Note
The basic difference between outraging modesty and defamation is that in case of the former mere intention if it is gathered from the pieces of evidence is sufficient, however, in the former case the exact words which were allegedly defamatory in nature have to be put out at the beginning itself when the allegation is made.

Stalking

354D IPC deals with stalking and Cl.(1)(ii) deals with online stalking. These provisions were introduced post Nirbhaya incident via Criminal Law (Amendment) Act, 2013 famously known as Nirbhaya Act. It is related to monitoring the use by a woman of the internet or any other electronic means. The provisos exempt the accused on three grounds which include reasonable and justified conducts. In the present case, it in no way appears to be falling under the exemptions perhaps. The offence is punishable and the same is described in Cl.(2).

The Pocso Act

In the Preamble of the Act it has been category clearly mentioned that it protects children from sexual assault, sexual harassment, pornography and it provides for establishment of special courts which means a speedy trial with the child-friendly environment.

Child as defined under 2(d) of this Act means any person below the age of 18 years.

The matter can be requested to try before the POCSO court also as Dipak Misra, J. opined in Eera through Manjula Krippendorf vs. State (Govt. of NCT of Delhi) and Ors. that ...the very purpose of bringing legislation of the present nature is to protect the children from the sexual assault, harassment and exploitation, and to secure the best interest of the child [22] and the protection of the dignity of the child is the spine of the legislation. [23] which was concurred by R.F Nariman, J.

11(v) of this Act deals with sexual harassment and the offence is said to be committed when:

1. a person has sexual intent
2. threatens to use real or fabricated depiction through electronic, film or digital or any other mode, of
3. any part of the body of the child or the involvement of the child in a sexual act

Sexual intent here is a matter of fact and up to the court to determine. 12 of this Act mentions punishment for a term extending to three years with fine.

Note: (para 131,132 Independent Thought vs. Union of India [24])

42 of this Act deals with alternate punishment and holds that the offender found guilty of such offence (which includes 354 offences and 509 IPC) shall be liable to punishment under this Act or under the Indian Penal Code as provides for punishment which is greater in degree.

Also, 42A holds that POCSO provisions will be supplementary to the provisions of IPC (or any other law) and in case of any inconsistency the provisions of POCSO will have an overriding effect over any other law.

Intermediary Liability And Individual Liability

The liability of Instagram which is an intermediary in this case is exempted for hosting third-party content vide 79 of IT Act, 2000.

In the stages of crime, the preliminary motive gives a background as to what is the reason behind some act in question. However, it cannot be used as a basis to convict a person. The current discussion revolves around the stage of contemplation of a crime, which is where the intention is formed. It is rather a popular phrase that one should be punished only to the extent one was involved, i.e, proportionality is the philosophy of punishment

Chapter IV of the POCSO Act (16, 17 specifically) deals with abetment and attempt stages of crime like in IPC and stipulates punishment for the same. In this scenario prima facie it does not appear to transgress the attempt stage but falls within abetment.

107 IPC classifies abatement into three categories viz., instigation, conspiracy or intentional aid and these were held to be essentials to complete abatement as a crime in Malan v. State of Maharashtra [25].

As far as liability of the prime accused goes, who allegedly spoke of rape in the group chat, it falls into the first category perhaps which deals with instigation as was held in the case of Protima Dutta v. State of West Bengal [26] that it should provoke, incite, urge or encourage another person to do any act which is prohibited by law. 108 IPC (explanation 2) further supplements this and makes it categorically immaterial that commission of offence should be there, and the kind of effect it has on the person who is instigated by the accused. For instance in the State of Maharashtra v. Pandurang Ramji [27] though the desired result of murder was not accomplished the component of instigation was present.

There are three possible outcomes for any offence. It can either be committed (or) not committed (or) a hurt is caused as a result of abetment. In the impugned scenario the offence is not committed. As per the facts of the case, the court can categorise the abetment into the category of rape or gang rape (later one seems more logical as per facts). The punishment for the same is covered under 115 IPC, which punishes the accused for the term of seven years.

However other persons do not fall into the category of abettor as they were silent spectators [28] and were not active participants in the alleged plan of the commission of the offence. 107(3) IPC further makes it clear that mere non-interference is not sufficient but omission should lead to a breach of legal obligation that is to say a negligent act despite being in contravention of legal duties does not amount to abetment by illegal omission which was held in the case of Subash Chandra Bebarta v. State of Orissa.[29]

This is also supplemented by a plethora of cases where the apex court held that vicarious liability could not be extended to the group admin and the same argument can be forwarded in this case.

In Ashish Bhalla vs Suresh Chawdhary [30], the Delhi High Court had clarified that defamatory comments made by any of the members could not hold other members or the admin of the group liable.

What can be said is that as a responsible citizen they should have left the group if they were against the views expressed.

Defence
However in Union of India (UOI) and Ors. vs. Ramesh Bishnoi [31], Section 3 of the Juvenile Justice (Care and Protection of Children) Act, 2015,viz.,
(xiv) Principle of a fresh start: All past records of any child under the Juvenile Justice system should be erased except in special circumstances.

had an overriding effect over charges framed under 354, 447 and 509 IPC and the accused was acquitted. Taking a cue from it, it would be hard to frame the accused strictly under these sections in this case.

Since the accused are juveniles below the age of 18 and this case does not involve a commitment of heinous offences there is the likelihood that the juvenile justice board will look into the mental maturity of the accused and the kind of counselling and correction required as to how they see the society. This aspect plays the key role as the deciding factor when it comes to the sentencing part which is different from the establishing guilt part. The court looks into the background and circumstances of the accused and all associated factors while granting sentence.

Comment
The court would examine the component of Mens Rea in light of the facts and circumstances, i.e, the intent behind doing a particular act. It would look upon the mental framework and whether the accused desired to bring about a certain result and whether he possessed the necessary foresight that it can result in that. As in this case, the accused used the photos of the victim without consent to the audience of his friends.

Though he did not directly harass the victim, since the victim had no knowledge of it, his intent was perhaps clear from the fact that he mentioned that he would allegedly rape the victim. This is nothing but a serious expression of an intent to commit an act of unlawful violence which is gravest and unthinkable. If the threats were real, they carry with them serious consequences on the health, livelihood and social standing of an individual. U.S cases Cohen v. California [32] and Virginia v. Black [33] have highlighted this fact.

Lastly, looking at the issue in totality and establishing the liability of every member and their involvement is important. Going by the age-old principle of whoever seeks equity must come with clean hands, there is no place for vengeance in law. Therefore the one alleging charges must also be looked upon objectively without preconceived notions irrespective of gender and public pressure. Media trials, outrage and name shaming to make the case sound biased should be avoided.

*This article and the facts stated are based upon the news reporting and Instagram shares of the leaked chats*

References:

1. https://indiankanoon.org/doc/1623275/
2. https://indiankanoon.org/doc/594503/
3. https://indiankanoon.org/doc/541399/
4. [1868] 3 QB 360
5. Digital Alteration of Photographs and Intellectual Property Rights by Suvrajyoti Gupta,Journal of Intellectual Property Rights Vol 10, November 2005, pp 491-498
6. LRICR 203
7. AIR 1968 Mad 349
8. AIR 1931 All 258
9. https://indiankanoon.org/doc/110813550/
10. 395 U.S. 444 (1969)
11. MANU/SC/1202/2019
12. MANU/SC/1592/2016, AIR 2017 SC 150
13. (1995) CrLJ 3559 (Ori)
14. AIR 1931 All 263
15. AIR 1967 SC 63
16. Ibid
17. https://indiankanoon.org/doc/1772378/
18. https://indiankanoon.org/doc/245992/
19. https://indiankanoon.org/doc/1760826/
20. (1882) 1 Weir 613
21. https://indiankanoon.org/doc/6824/
22. MANU/SC/0876/2017, https://indiankanoon.org/doc/69624144/
23. Ibid
24. MANU/SC/1298/2017, https://indiankanoon.org/doc/87705010/
25. AIR 1960 Bom 393
26. (1977) CrLJ (NOC) 96 (Cal)
27. (1971) ILR (Bom) 1061
28. Trilochan v. Karnail, AIR 1968 Punj 416
29. (1974) CrLJ (Ori)
30. MANU/DE/3534/2016
31. MANU/SC/1651/2019
32. 403 U.S. 15, 21 (1971)
33. 538 U.S. 343 (2003)