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Section 509 IPC: Statutory Remedy Available To Women Who Face Online Abuse

Ashok Kini
22 Sep 2020 6:04 AM GMT
Section 509 IPC: Statutory Remedy Available To Women Who Face Online Abuse
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"A bunch of anonymous letters were received by a woman. A mere glance through those letters is enough. Any reader can perceive the foul smell of the author's filthy intentions. The victim's modesty gets hurt, injured, outraged, and terribly insulted.." These remarks were made in judgment [MM Haries vs. State of Kerala] delivered in 2005 by Justice K. Hema of Kerala High Court. Today, letters are replaced by social media which has made the criminal act easier to be committed and get away with. Many women from all walks of life face online abuse and they are not sure how to deal with it. 

Recently, I came across a video posted by a famous travel vlogger in Kerala in which he says that someone is abusing his wife in a very filthy language by commenting on her videos in Youtube and Facebook. Aggrieved with this, he first filed a complaint before the Cyber Police. They replied to him stating that there are no provisions in the Information Technology Act to register a crime case in the matters related to defamation. They cited the Supreme Court judgment (Shreya Singhal vs. Union of India) that struck down Section 66A IT Act. Finally they advised him to give a detailed complaint before the Police Station alleging 'defamation'.

The above judgment in MM Haries is on a petition filed by a person accused of sending anonymous abusive letters to a woman police officer. In that case, the charge sheet was laid against him under Section 292, 294(b) and 506(1) of IPC. The contentions raised by the accused was that these provisions are not attracted in this case. The court refused to quash the crime observing that an offence under section 509 IPC is prima facie made out. The court found that `writing of letter' to a woman, intending to insult her modesty can be construed as `making a gesture' under section 509 IPC.
Section 509 of the Indian Penal Code [After 2013 amendment] reads thus: "Word, gesture or act intended to insult the modesty of a woman.—Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to three years, and also with fine."
This section is thankfully, gender neutral (as far as offender is concerned). Mens Rea: An intention to insult the modesty of any woman. Actus Reus: utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman or intrudes upon the privacy of such woman.
Punishment: Simple imprisonment for a term which may extend to three years, and also with fine. The court observed that since the accused had sent letters, it cannot be said that he uttered any word, or made any sound or showed any object. Therefore it examined whether it will come within the expression `making gesture' used in section 509 IPC ? The court noted the dictionary meaning of the word `gesture' and said: "A gesture need not necessarily involve any body language. It is not necessary that a person uses any body signs to make a gesture. He can convey or express his intentions by sending a doctor, writing a letter or by making a phone call etc. In fact, the intentions of a person can be best expressed by way of writing a letter and there will be proof also for such an act. Therefore, going by the dictionary meaning, it has to be concluded that writing of a letter can be treated as `making a gesture' since by such act, the writer expresses his attitude or conveys his intentions."
Justice Hema, in the above judgment, concluded thus: "There can be little doubt that the legislature would not have intended that a person who insults the modesty of a woman by his writings must be kept out of the province of section 509 IPC. In a country like India, the legislature would not have ever intended that a person who expresses his attitude or intention to insult modesty of a woman by sending a letter should be absolved from criminal liability. I am of view that the very object of the provision will be defeated if a contrary view is taken. Thus, while interpreting the meaning of the relevant expression in section 509 IPC in the light of the relevant rules of interpretation, I find that `writing of letter' to a woman, intending to insult her modesty can be construed as `making a gesture' under section 509 IPC."

Modesty of Woman

Following are observations made in a few judgments of the Supreme Court which dealt with the term 'modesty of woman'. Section 509 I.P.C criminalises a 'word, gesture or act intended to insult the modesty of a woman' and in order to establish this offence it is necessary to show that the modesty of a particular woman or a readily identifiable group of women has been insulted by a spoken word, gesture or physical act (See Khushboo v. Kanniammal : AIR 2010 SC 3196). The essence of a woman's modesty is her sex. The modesty of an adult female is writ large on her body. Young or old, intelligent or imbecile, awake or sleeping, the woman possesses modesty (See State of Punjab v. Major Singh : AIR 1967 SC 63). Modesty is a virtue which attaches to a female owing to her sex (See Raju Pandurang Mahale v. State of Maharashtra : AIR 2004 SC 1677). If the word uttered or the gesture made could be perceived as one which is capable of shocking the sense of  decency of a woman, then it can be found that it is an act of insult to the modesty of the woman (See Rupan Deol Bajaj v. K. P. S. Gill : AIR 1996 SC 309).

Verma Committee Report and 2013 Criminal Law Amendment

It is interesting to note that the Justice JS Verma Committee, in its report, suggested a repeal of Section 509. Instead, the committee suggested to incorporate this offence as Section 354C (Stalking). The committee recommended Section 354D read as follows: Whoever follows a person and contacts, or attempts to contact such person to foster personal interaction repeatedly, despite a clear indication of disinterest by such person, or whoever monitors the use by a person of the internet, email or any other form of electronic communication, or watches or spies on a person in a manner that results in a fear of violence or serious alarm or distress in the mind of such person, or interferes with the mental peace of such person, commits the offence of stalking.

But the Parliament did not accept this suggestion as regards Section 509 repeal. Vide Criminal Law (Amendment) Act, 2013, it inserted Section 354D which now reads as follows: Stalking.—(1) Any man who— (i) follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman; or (ii) monitors the use by a woman of the internet, email or any other form of electronic communication, commits the offence of stalking. It retained Section 509 as an independent offence, and also enhanced maximum punishment from 1 years to 3 years. Also it made imprisonment part mandatory (earlier it was imprisonment or fine). 

Information Technology Act

Section 66A of the Information Technology Act, 2000, made any information that is grossly offensive or has menacing character punishable. This section would have dealt with the crime of online abuse as well. But since the Supreme Court struck this provision down, there is currently no provision in the IT Act which deals directly with offensive and abusive online abuse punishable. However, Section 67 deal with persons who 'publishes or transmits or causes to be published or transmitted in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.' But it is doubtful whether this provision would take into its ambit the textual abuses as well.

Mischief Rule

Since there is no Section which directly deals with an act of outraging modesty of a woman by word, gesture or act intended to insult the modesty of a woman in IT Act, it can be safely said that Section 509 can be charged against those who does the crime on virtual world as well. By applying the mischief rule, one has to essentially ask what part of the law did the law not cover, but was meant to be rectified by the legislature. Section 509 was enacted at a time when there was not even a concept of internet, let alone social media. The mischief that was sought to be suppressed was the act of outraging modesty of a woman by word, gesture or act intended to insult a woman's modesty. Now, such mischief has to be remedied by applying Section 509 to crimes done in virtual world as well. That said, I hope that Parliament expands the scope of Section 354D IPC to include online abuse as a form of stalking.



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