The number of people accessing the internet has grown by leaps and bounds in India. In fact, India has the second highest number of internet users in the world1 . However, with the rise in the penetration of internet, there has also been an alarming increase in cyber-crime in India. What is more disturbing is that there is an epidemic-like proliferation of a specific genre of cyber crime – sharing obscene content of women without their consent. The issue was brought into focus recently when amidst a nationwide lockdown, screenshots from a group created by adolescent boys on Instagram by the name of Bois Locker Room (the word bois being used as a variation of the word boys) were leaked. Based on the screenshots, it appeared that these adolescent boys were sharing morphed pictures of minor girls, objectifying them and passing derogatory remarks.
The Delhi Commission for Women (DCW) took up the matter and issued notice to Instagram and Delhi Police on May 04, 2020. Subsequently, the Delhi Police Cyber Crime Cell took suo motu cognizance of the same and registered a case under the Indian Penal Code (IPC) and Information Technology (IT) Act, 2000, on the basis of social media reports. Further, three practicing lawyers wrote a letter to the Supreme Court to throw light on the incident and to urge the apex court to take up the matter2 .
EXAMINATION OF THE LAW
It becomes pertinent to examine the existing legal provisions which can be used to deal with an incident like this. The present incident presents a unique challenge wherein almost all the boys involved are below the age of 18, bringing it under the ambit of the Juvenile Justice (Care and Protection of Children) Act 2015. An analysis of the sections under various Acts which might be applicable to the above offence would be helpful in understanding the application of the Juvenile Justice Act.
While the comments and discussions are a matter of concern, the legal consequences would likely be related to the sharing of private photos and morphed photos of the minor girls in the group. Therefore, major statutes that are applicable here are sections 66E, 67, 67A and 67B of the IT Act, and sections 354D, 465, 471, 499, 500 and 509 of the Indian Penal Code. In addition, sections 14 and 15 of the Protection of Children from Sexual Offences (POCSO) Act, 2012, are also applicable here.
The Information Technology (IT) Act, 2000
Section 66E – Punishment for violation of privacy
This section covers the transmission of images of "a private area of any person without his or her consent". The punishment for the same is imprisonment for three years or with fine not exceeding two lakh rupees, or with both. This section is extremely important as Right to Privacy has been recently held to be guaranteed as a fundamental right and protected under the Right to Life in Part III of the Constitution of India, in the landmark judgement in Justice K. S. Puttaswamy (Retd.) and Anr. V. Union of India and Ors.3 Sharing of any content that would be a breach to the privacy of a person, therefore, would also be violating Article 21 of the Constitution of India.
Section 67 - Punishment for publishing or transmitting obscene material in electronic form
This section deals with the publishing or transmitting of obscene material (described as "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"). The punishment on first conviction is imprisonment upto three years and with fine of five lakh rupees, and subsequent convictions to be punished with imprisonment upto five years and fine which may extend to ten lakh rupees.
Section 67A - Punishment for publishing or transmitting of material containing sexually explicit act, etc., in electronic form
The section punishes publishing or transmitting of material which contains sexually explicit act or conduct. The punishment on first conviction is imprisonment upto five years and fine upto ten lakhs. Since the Bois Locker Room incident involved sharing of morphed images of girls, the present section is applicable.
Section 67B - Punishment for publishing or transmitting of material depicting children in sexually explicit act, etc., in electronic form
The present section on first conviction provides punishment of imprisonment upto five years with fine upto ten lakhs.
This section covers not just the depiction of children in sexual acts or conduct, but the creation or distribution of any digital text or images that depicts children "in obscene or indecent or sexually explicit manner".
It is pertinent to note that the present incident involves sharing of obscene or private images of minor girls. Therefore, the present section can also be a recourse. Further, many of the comments and discussions also might fall within the ambit of this section.
Protection of Children from Sexual Offences (POCSO) Act, 2012
Section 14 and 15 – Child pornography
Under section 14(1), the use of a child or children for pornographic purposes is punishable with imprisonment upto five years along with fine. Further, under section 15 storage of pornographic material involving a child with the intention of distributing it is punishable by imprisonment of upto three years or with fine or both.
Indian Penal Code
Section 354D – Stalking
This section was added to the IPC vide the Criminal Law Amendment Act, 2013. The amendment act of 2013 was brought after the notorious gang rape and murder of victim Jyoti Singh, known as the Nirbhaya case4 , and introduced a set of amendments to the IPC, including section 354D.
Section 354D(b) includes "monitoring the use by a woman of the internet, email or any other form of communication". Therefore, collecting pictures of girls from their social media profile would be covered under this section. The section provides for a punishment of upto three years and a fine upon conviction.
Section 463, 465 and 471 – Forgery
Section 463 defines forgery, wherein any person who "makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury" commits forgery. Section 465 provides punishment for forgery, which is imprisonment of upto two years or fine, or both. Further, section 471 covers the usage of forged documents or electronic record as genuine, and carries the same punishment as forging such a document.
Digital alteration of a photograph would fall within the ambit of making false electronic record.
Section 509 – Word, gesture or act intended to insult the modesty of a woman
Outraging of the modesty of a woman is a section which is frequently used in consonance with other sections of IPC involving sexual assault. In State of Punjab v. Major Singh5 , it was held that when any act done to or in the presence of a woman is suggestive of sex according to the common notion of mankind, such an act would be covered under this section. Messages passing lascivious comments upon the physique or body of the girls whose images were circulated in the group can be covered under this section. The punishment provided under this section is imprisonment upto one year, or fine or both.
Section 499 and 500 – Defamation
Defamation can be taken recourse to by the victims in this case. Section 499 IPC requires that 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. Therefore, men's reason to cause harm to the reputation is a sine qua non for an offence under this section. The victims, if they chose to, can take recourse under the present section. Section 500 IPC provides the punishment for defamation which is simple imprisonment for a term of upto two years or with fine or both.
Juvenility of the Accused
It is important to note that most of the persons involved in this incident are below the age of 18 years. Therefore, the provisions of the Juvenile Justice Act shall apply to them. However, the Juvenile Justice Act provides for "child in conflict with law" to be tried as an adult, if the Juvenile Justice Board after inquiry, deems it so6 . However, this can be only done so if the juvenile has committed a heinous crime7 , which is any crime for which the punishment is minimum seven years or more. As is evident from the above analysis, none of the sections applicable to the present case have a punishment of that duration. Therefore, all the accused shall be treated as juveniles only. The maximum punishment for juveniles is three years. But, the Act, in case of juvenile offenders believes in reformation of juvenile as much as possible. The reformation type of punishment under the Act includes – sending juvenile to Rehabilitation Centers, Juvenile Schools or involving them in various programs headed by government or NGOs.
CONCLUSION
The Cyber Crime Cell of the Delhi Police has already registered an FIR under sections 465, 469, 471 and 509 IPC along with section 67 and 67A of the IT Act. The investigation is presently ongoing and we shall hope to see the innocent girls whose images were shared in the group get justice. However, the most important aspect here is to question the environment and societal conditions that might have given rise to a group like the Bois Locker Room, as it is surely not the first of its kind. Cyber-bullying and cyber-stalking are on the rise and swift, timely and strict action would be required to deal with the same.
Footnotes
1. Dillinger, Jessica. "List Of Countries By Internet Users." WorldAtlas, Sept. 6, 2019, worldatlas.com/articles/the-20-countries-with-the-most-internetusers.html
2. Nilashish Chaudhary, Bois Locker Room: Letter Petition Before SC Seeks Criminal Action, Live Law, (May 5, 2020, 6:58 PM), https://www.livelaw.in/ top-stories/bois-locker-room-letter-petition-before-sc-seeks-criminalaction-156262.
3. MANU/SCOR/27539/2017
4. Yamini, Criminal Law (Amendment) Act, 2013: Sexual Offences, Lawctopus (April 8, 2015), https://www.lawctopus.com/academike/criminal-lawamendment/
5. AIR 1967 SC 63
Originally published on May 2020. Vol. XIII, Issue V
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
