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With the recasting of technology in the modern era, the way crime befalls reached to its zenith. As cybercrime is reckoned as one of the easiest ways to commit any crime/breach without being physically present at the place of the offence, it makes trickier to find the criminal. In the midst of that, Cyberstalking has emerged as a vogue term that provides netizens, a new opportunity to commit a crime and affects the society by misleading the identity of women and attacking her modesty by sending messages, obscene photos and videos which abhorrently violates her privacy. The recent incidents have been found, where a woman’s identity was misused with a malice to defame, humiliate, torture and to duress her to have a relationship. These kinds of incidents occur when a person knows her, either in a formal or informal way.
Cyberstalking can be defined as a way in which computer and network is used as a source to commit crime by repeatedly approaching a person against his will, with an intent to harass which poses threat to one’s identity and safety, and creates a sight of fear, which may lead to mental trauma. This attracts liabilities towards the offender under different provisions in India. However, the stalker with a prodigious knowledge of technology enjoys a great benefit by hiding its identity anonymously.
Since time immemorial, women were always likely to be a victim of Cyberstalking as compared to men. Also, laws are drafted in the sense that provides safeguard to the women, as they were considered as a weaker part of the society. Before 2013, there is no particular set of rules for the stalking, as only physical stalking was considered as an offence under Section 509 of Indian Penal Code, 1860 contending that, if a person utters any word or make any gesture with an intention to insult her modesty, shall be punished. Besides, there is no indication of Stalking as a crime in the principal act of The Information Technology Act, 2000. The first case for stalking was reported in 2001 by Ritu Kohli, in which she contends that her identity was used by a boy for illegally chatting and using obscene and vulgar language which disturbs her privacy and outrages her modesty, for which the boy named Manish Kathuria was arrested by Delhi Police. Soon after this incident, an amendment was proposed in The Information Technology Act, 2000. Later with the increasing rate of crimes in the country, the changes were made in provisions by Criminal Law Amendment 2013, and Stalking is made punishable under Section 354D of Indian Penal Code, post the Delhi Gang Rape incident.
Legal provisions applicable in India
First, Stalking under Section 354D of The Indian Penal Code, 1860 defines the punishment for an attempt to monitor the activities of the women in the manner to get her information, with a malice intention.This offence falls under the ambit of Cyberstalking, and the punishment for this offence is imprisonment of three years or fine, or both.
Second, if a person tries to have an anonymous conversation with an unknown person with a criminal intent to threaten, he shall be liable under Section 507 of The Indian Penal Code.
Third, if a person threatens another with any injury to his reputation or property, or to the person or reputation of anyone in whom that person is interested, with intent to cause alarm to that person, has committed criminal intimidation under Section 503 of The Indian Penal Code.
Fourth, Section 72 of Information Technology Act, 2000 contemplates about the breach of confidentiality and privacy and provides, if a person takes away a secure access to any record of another person without his consent shall be imprisoned for up to 2 years, or liable for fine, which may extend to one lakh or both.
Fifth, Section 66 and 67 of Information Technology Act, 2000 is considered as a paramount provision for Cyberstalking, since it states about the transfer of any materials either obscene or defamatory to another in electronic form, which may mislead and cause danger, insult, injury, to another person. Both these provisions fall under the realm of Cyberstalking, but the scope of these provisions is not limited, as a breach of privacy may include the relentless disturbance by sending obscene photos, messages or putting an eye on the profile which inflicts one’s privacy.
Section 66A of IT Act vis-à-vis Fundamental Rights
Within the shadow of anonymous identity, a person can easily enter into one’s room of privacy, instead of being miles apart from him. The information on the cyber world has a close nexus with Right to Privacy. Repeatedly spamming may affect the mental health of a person. Hence, Right to Privacy is recognized as a fundamental right in the extended ambit of Article 21 of the Indian Constitution, so a person can enjoy certain activities without any unwarranted public interruption. However, in the dawn of this new digital era, privacy turned out to be the first fundamental principle to be sacrificed.
Section 66A of Information Technology Act, 2000 defines the punishment for sending “offensive” messages through a computer or any other communication device like a mobile phone or a tablet. The punishment prescribed under this offence was imprisonment for three years or fine, or both. However, the said provision has been struck down by the Supreme Court in the landmark case of Shreya Singhal v. Union of India on the ground of being ultra vires and vague provision. Terms like “inconvenience”, “annoyance”, and “ill-will” used in clause (b) and (c) of the provision makes it more perplexed, and it raises the probability of being misused. In addition, any content which is inconvenient to one, maybe not for another. Emphasizing on the right of Freedom of Speech and Expression, the court stated, “liberty of thought and expression is a cardinal value that is of paramount significance under our constitutional scheme.” A person can enjoy the right to freedom of speech, but not to the extent of misusing Article 19(2) but not in the manner to stalk. The court also stated that the ambit of the words used in the provision is excessively broad that it may cover the innocent speech in its ambit too, which creates “chilling effect”. Hence, Section 66A creates an offence which is vague and overboard, and, therefore, held unconstitutional under Article 19(1)(a) and not saved by Article 19(2).
It can be concluded that women are victimized daily, either online or offline. To overcome from this, there should be an enactment of a legislation, which can remove all the voids of this law. First, the enactment should be gender neutral as there is no provision in stalking which states about the man as a victim of cyberstalking. Second, the jurisdiction is one of the biggest lacunae, as the crime can be committed outside the territorial jurisdiction of the country. So there should be a universal law for the ensuring the jurisdiction.Third, Lack of awareness is another concern, since people share their personal information to the strangers while communicating. Counteractive actions should be taken by adapting requisite security measures, like refraining from disclosing their personal information on the social platform, by reducing the number of strangers in communication, and lastly by maximizing the privacy limit in the cyber world by ensuring all the security checks.
ABOUT THE AUTHOR
Navantak Agrawal is a second-year law student at National University of Study and Research in Law, Ranchi
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