New Delhi: Indian courts treat cases of sexual harassment, bullying and other forms of online violence against women as less serious than offences committed in the physical world, a study by Indian advocacy group IT for Change has said.
Titled ‘The Judiciary’s Tryst with Online Gender-Based Violence: An Empirical Analysis of Indian Cases and Prevalent Judicial Attitudes’, the study is based on the analysis of 94 court cases by Karnataka-based lawyers Malavika Rajkumar and Shreeja Sen.
It was published earlier this month on the group’s website.
The lack of recognition of the ever-evolving nature of online offences and gender-based violence on social media platforms has allowed perpetrators to evade prosecution, the study says, adding that courts in India often rely on “sexist” and “patriarchal” scrutiny of the complainant’s “character” rather than the alleged offences of the accused.
The report notes that online gender-based violence (OGBV) — stalking, trolling, harassment, cyberbullying, and unsolicited pornography, among other offences — spiked after the Covid-19 pandemic halted physical interactions and brought much of the world together online.
The study says that, despite evidence that physical abuse is connected to the online violence women suffer, “Indian courts ignore the online-offline continuum along which OGBV takes place”.
“The gravity of online offences is disregarded until an offline offence occurs. In many cases where the accused is charged with committing both online and offline offences, courts tend to focus more on the offline offences,” it adds.
Speaking to ThePrint, Sen said they conducted the study because “we wanted to see how online violence works within various stakeholders and networks and how responsive the judicial system is”.
According to Rajkumar, “there is unawareness of the criminal nature of online gender-based violence, resulting in survivors finding it difficult to understand that the kind of violence they are facing has actually crossed the legal threshold for it to be a complaint”.
“Many women normalise this sort of violence as a silly dismissable prank,” she said. “Most of us have at some point received threats, trolls or hate but when do we take it seriously?”
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How study was conducted
Talking about the study methodology, Rajkumar said they had “seen that most of the chargesheet provisions [in related cases] taken to courts were based on two laws for online violence, the Indian Penal Code, 1860, and the Information Technology Act, 2000”.
“We ran a filter through Indian Kanoon (legal portal) and it produced around 400 cases and then we selected the cases which we thought fit within the framework of our study,” she added.
In 75 percent of the cases, the researchers found the perpetrators had leaked intimate pictures of the women or sexually assaulted them with the threat of leaking their pictures.
Among other examples, the study cites two cases that involved allegations of both online and offline crimes.
One of them is Shemeer A. vs State of Kerala, where the accused allegedly trespassed into the house of the complainant and raped her on the threat of posting intimate images of her online. The other is Raja Kumar vs State of Bihar, where the accused is alleged to have forcibly intoxicated the complainant, recorded an intimate video of her, and demanded money to not circulate the video on social media.
“However, apart from laying down the facts of the nature of the crime and observing that the social media video recorded and circulated belonged to the co-accused, the case does not make more mention of the seriousness of the crime,” the report notes.
Among other observations, Rajkumar said the survivors filing complaints were found to be mostly cis women (whose gender identity aligns with the sex assigned at birth), and they “didn’t see women from marginalised locations, particularly in terms of women from marginalised religious groups or women from SC/ST”.
“And the LGBTQ community was not at all there, pointing to the fact that there are a lot of barriers to filing cases and seeking justice within courtroom spaces at the get go,” she added.
Another hurdle faced in courts includes the burden of proof or the responsibility of prosecution to prove a charge, notes the report. The requirement under Section 65B(4) of the Indian Evidence Act, 1872, for a certificate to authenticate secondary electronic evidence (a copy of the original evidence), can often lead to evidence not being considered altogether, it says.
“The cases in our study show that courts did not consider evidence not accompanied by the Section 65B(4) certificate, depriving courts of material access to evidence, and consequently, access to justice for victims/survivors,” the report states.
Way forward
The report calls for the legal system in India, including the legislature, to take responsibility for addressing the challenges of online sexual violence and shift its focus to justice and inclusivity in the digital age.
It also calls for courts to uphold the victim-survivor’s right to privacy, and hold online platforms accountable for dissemination of harmful content.
The report highlights the role of social media platforms in the dissemination and amplification of content that impacts the safety of victims or survivors of OGBV.
“Social media platforms are complicit in this case, often leading to an impact on the users safety and wellbeing,” Rajkumar said. “The platforms play a role in pushing the content through their viral algorithmic functions and the platforms itself is designed in a way that when users share content, you particularly see that it is always the hateful or violent content that’s being shared rampantly.”
Sen said through their study they saw “how the entire ecosystem responds to the issue including counsellors and police officials”. “All of them have to be sensitised to the various challenges of OGBV,” she added.
It’s a concern voiced by activists working in the field of women’s rights too.
Jagwati Sangman, vice-president of the All India Democratic Women’s Association (AIDWA), a Left-oriented women’s organisation, said there was no bigger place to seek justice than the Supreme Court, but “even there, women are treated with a patriarchal mindset”.
“There is still no proper mechanism through which we can keep a check on cases of gender-based violence on social media. Violence against women is taken seriously only when it is physical but when it comes to verbal or emotional violence, particularly on social media, the reaction depends on individual judges,” she added. “Also, sometimes, they are themselves involved in such kinds of violence,” said Sangman.
Often, she added, the language used against women in courtrooms was discriminatory and problematic.
“In India, where even marital rapes are not considered rapes, a very small number of women actually end up taking cases of online violence to courts,” she said, adding that there was a need for “deep gender sensitisation”.
“Courtrooms need to have facilities that victims, including lawyers, can access easily. Language of courts needs to be scrutinised, work needs to be done on different levels,” she added.
(Edited by Sunanda Ranjan)
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