(This article marks the International Day for the Elimination of Violence Against Women, commemorated annually on 25 November.)
Ramnagesh Srinivas Akubathini, a 23-year-old IIT graduate, must have thought that the 'ecosystem of hate' was so foolproof that he did not even blink twice before making a rape threat against a 10-month-old child.
His luck did run out though when a complaint was swiftly filed and his digital footprint gave up his identity, which he'd tried to hide behind the handle 'criccrazygirl'. All he could really plead when trying to get bail was that the charges against him were not punishable with death or even life imprisonment.
The judge hearing his plea also agreed that what was left to be determined was that if he had actually posted that rape threat. So far, so good, so swiftly done – but this is where the complications of committing a cybercrime are revealed.
Technically speaking, it should be easy to pinpoint the device or account which are used to commit such a crime. Once that's done though, things start to get tougher given the need to prove cases beyond reasonable doubt. Beginning of course with the parade of standard responses: “I did not type that”, “The phone was not used by me”, “Not my account”, "I was hacked".
Once matters move on to those nitty-gritty, it's easy to lose sight of the fact that a threat was made to a girl child who is not even a year old.
It will be minimum of a decade and some years beyond that before she is even allowed a social media account of her own from which she can tweet/ post/write/comment on any issue.
Despite all this, she has already paid the price for being born a girl in a country where our laws and justice systems are still lacking true teeth to punish those who indulge in this kind of harassment.
The Triggers Of a Rape Threat
Having an opinion is still legal, but putting it across for a wider audience has become extremely hazardous.
In the case of Virat Kohli and Anushka Sharma’s daughter, it was when team India lost to Pakistan in a T20 match – for her parents' outspokenness.
In the 'Sulli Deals' controversy, it was the mere fact of having a social media presence and being willing to share an opinion, or just a photograph, that became grounds for harassment of women from the Muslim community.
In Mahua Moitra’s case, who recently got a gang-rape threat via Twitter, it was the support she showed to the viral 'I Come From Two Indias' clip by stand-up comedian Vir Das. Dalit journalist Meena Kotwal has faced harassment and also received a rape threat recently for having the temerity to do her job.
When it comes to online sexual harassment and rape threats, perpetrators use the anonymity granted by platforms – meant to protect speech – to commit crimes and get away with them.
The nature of online speech also becomes a boon for them, as it is often easy to muddy the waters when it comes to establishing intent in cases like this.
In virtual world though, it becomes really easy to threaten and post abuse – and despite advancements in technology, it still often proves tough to trace the digital footprint of those who indulge in this.
If a threat like this is made in the physical world, there is no guarantee that the police will take the matter seriously enough, but at least the authorities have ample experience on how to approach such a crime and ensure a trial. But in the virtual world, it is a different ball game altogether.
Are Our Laws to Blame?
The law enforcement, legal systems, and government-funded schemes and programmes intended to protect Indian women and children routinely fail them and fall short in providing comprehensive support to victims.
Unless the victim is a public figure or comes from privilege or the abuse is exceptionally graphic and is followed by public and media outcry, arrests for online hate and abuse are the exception rather than the norm.
Women, who are known to be vocal on the internet, have to undergo another level of victim shaming altogether.
Reporting online abuse and seeking justice often backfires. This could be because the citizens who are unaware of the exact legal provisions have the wool pulled over their eyes by uncaring authorities. Or the authorities could mean well, but lack the knowledge to understand the nuts and bolts of cybercrime, and are ill-equipped to unravel it all.
On top of this, there is also a bit of an overlap between provisions of the India Penal Code (IPC) and the Information Technology Act (IT Act) which can create confusion and lead to anomalous situations.
For instance, while certain offences are bailable under the IPC, similar offences under the IT Act may not be, and vice versa.
For instance, when it comes to 'obscenity', the offences under Sections 67 (publishing or transmitting obscene material in electronic form), 67A (punishment for publishing or transmitting of material containing sexually explicit act,) and 67B (punishment for publishing or transmitting of material depicting children in sexually explicit act) of the IT Act are non-bailable, while offences under Sections 292 (publishing/sale of obscene books) and 294 (obscene acts and songs) of the IPC are bailable.
What Happened With Bazee.Com?
Almost a decade ago, the baazee.com case brought the conflict between provisions of the IPC and the IT Act came to the fore.
An obscene video was listed under the books and magazines sub-category 'e-magazines' on the e-commerce site. The Delhi Police crime branch charge-sheeted Bazee manager Sharat Digumarti for this.
Due to changes under Section 67 of the IT Act and Section 294 of the IPC, charges against him were dropped, but the charges under Section 292 of the IPC were retained.
The Supreme Court eventually quashed the proceedings against Digumarti and ruled that if an offence involves an 'electronic record', the IT Act alone would apply since such was the legislative intent.
It is a settled principle of interpretation that special laws would prevail – over general laws and that the latter laws would prevail over prior legislation.
The intent while drafting such legislations however, never factored the swift rise of a virtual world that allows graphic and violent abuses – without fear of any repercussions – which can often skirt the bounds of not particularly well-defined provisions in the IT Act.
It should also be noted that certain IPC provisions have been drafted/updated over the years to expressly factor in online behaviour, such as Section 354D of the IPC on stalking.
How Can a Case Like This be Proved?
In the 10-month-old child's case, the threats meted out by the accused certainly attract the relevant IPC sections – 294, 504, 506, 509 as well as Section 67 of the IT Act.
But the prosecution will have a hard time proving the case to the requisite standard since it will be hard to offer admissible evidence to prove the mens rea (criminal intent) behind the threat. These subsequent actions would take time to figure.
However since this case involves a renowned couple with capacity to pursue litigation, it might not be lost in the oblivion like the now months-old 'Sulli Deals' case.
It was an 'online auction' where pictures of various women were taken from their social media accounts and posted on servers hosted by GitHub – ie a sophisticated operation which required a lot of planning to demean a certain community through its women.
However, despite this, the perpetrators have still not been caught. The situation, as with many cybercrimes, is made more difficult by the fact that GitHub says information can only be sought from it through a Mutual Legal Assistance Treaty (MLAT) as its servers are outside Indian police jurisdiction.
If the authorities want to, they can of course follow the relevant procedure to do this – something they have failed to do thus far.
The selective approach of taking certain cases in the limelight to a successful conclusion and leaving the rest tangled in a web of legal formalities is what dissuades most survivors of such crimes from even reporting what has happened.
Journalists like Rana Ayyub, Neha Dixit, Meena Kotwal, comedian Agrima Joshua, and actor Swara Bhaskar are amongst many women whose comments sections are filled with such threats on an hourly basis – but what is being done even when the abuse is so visible? Or when they have gone and filed criminal complaints?
Minors are often the targets of such threats – for all the world to see – and yet the online social media ecosystem still allows such abusers to thrive without fear.
It is time for the 'system' to step up – and for such cases are nipped in the bud.
May the short time taken for the abuser to be pinned down in the Virat-Anushka case set a precedent for all other cases of women being harassed online.
And may the systems of justice be made more accountable to the common women of this country.
(Tahini Bhushan is an advocate based in Delhi-NCR. Jeevika Shiv is a lawyer and social worker and works on issues of gender Justice and the law. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)
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