What is Cyber Stalking? What are its perspectives in India?10 min read
By Pratham Gupta
On January 1 2022, at the very start of the year, a new controversy surfaced in our country as several Muslim women found themselves on ‘Auction’ on an app named ‘Bulli Bai’.
The targets included women who have been vocal on burning political and social issues. Prominent journalists, activists, and lawyers were among those listed for auctioning. The app hosted by the GitHub platform had used their photographs, many of them doctored.
This incident sparked rage from the fellow citizens on Twitter, huge backlashes against the accused were seen which led to significant action and speedy arrest of three students from different locations in the country.
With the widespread use of computers in our daily lives and the progress in information technology, the vulnerability of computer and internet users has risen dramatically in today’s cyberspace. As technology evolves, the immense technical potential of modern computers/computing devices creates opportunities for misuse as well as criminal activity.
Among the many offensive activities on the internet, online abuse is a worldwide issue. A person’s repetitive, unsolicited, hostile Behaviour through cyberspace to fear, intimidate, humiliate, threaten, harass, or stalk someone else is known as cyber harassment.
Apart from physical acts of harassment being regarded as a violation under Indian law, harassment perpetrated through electronic means such as social networking sites, chat rooms, e-mail, and so on is also recognized to have the same effect as traditional harassment offenses.
The Information Technology Act of 2000 (hereafter referred to as the IT Act of 2000) has defined several cybercrimes. Women in India, according to popular belief, are most vulnerable targets on the internet and in digital communication technologies because of their gender. However, several cases go unreported, either because of a lack of awareness or because there are no strict rules in place to deal with them.
It’s also worth noting that there are relatively few occurrences of this sort that are documented and convicted.
Furthermore, with the repeal of Section 66A of the Information Technology Act, 2000 in the decision of the Supreme Court in Shreya Singhal v. Union of India, there has been a void in law to respond to such offenses.
Highlighting the fundamental right to freedom of speech and expression, the judgment held that liberty of thought and expression is not merely an inspirational ideal.
The decision, which focused on the fundamental right to freedom of speech and expression, stated that liberty of thought and expression is more than a lofty ideal.
Understanding Cyber Stalking and Its Impact
Stalking has emerged as a socio-legal problem of recent times, which has resulted in its incorporation as a criminal offense in Indian laws. Stalking is defined as the unwanted or repeated observation of another person by an individual or group. Stalking activities are linked to harassment and intimidation and may include following or monitoring the victim in person.
Cyberstalking is a dangerous kind of harassment that can endanger an individual’s life. Individuals are harassed in cyberspace through the use of information and communication technologies (especially the Internet).
The transmission of abusive and insulting e-mail messages, identity theft, and data or device damage are all examples of harassment.
As a result, cyberstalking is a set of Behaviour in which an individual, a group of individuals, or an organization uses information and communication technology to harass one or more people.
Such Behaviours may include but are not limited to, the transmission of threats and false accusations, identity theft, data theft, damage to data or equipment, computer monitoring, the solicitation of minors for sexual purposes, and confrontation.
Cyber Stalking and victimization of women
Women and small children are frequently the victims of such activities, which result in threats, harassment, violence, and trauma. Women are the most affected community in this regard, as privacy in the virtual world, as well as in real life, real-life, is gradually disappearing. Cyberstalking is a significant example of women’s online privacy being violated.
Furthermore, due to the nature of the offense and the intended target, such abnormal Behaviours have a significant impact on every part of their lives.
Women’s cyber victimization is divided into two categories: textual victimization and graphical victimization. Producing, generating, or disseminating obscene, insulting, or pornographic materials, particularly revenge pornographic images, is an example of graphic victimization.
There is no denying that women have historically been regarded as a marginalized and disadvantaged group in society. Even though the Indian Constitution grants equal rights to men and women, women have been relegated to second-class citizens as a result of the society’s patriarchal structure.
Stalking is frequently used as a vengeful tool by men in response to a woman’s rejection to enter into any kind of relationship with him.
Today, the situation is far more concerning, with internet trolls using social media websites and instant messaging services such as WhatsApp to target women activists, journalists, celebrities, academicians, and others to incite hatred against them in the larger community for sadistic pleasure.
Cyber Stalking and Legal Remedies
Leading to a shortage of particular regulations and enforcement mechanisms, Cyberstalking is a regular occurrence in cyberspace that often goes unchecked. This is a clear example of the grave effects of cyberstalking. There could be a large number of comparable cases that go unreported.
Here, social conventions and conventional ideals play a significant impact. Women victims and their families are hesitant to report such crimes, especially since they are concerned about societal repercussions. Apart from that, there are a variety of factual explanations for the low number of cyberstalking prosecutions.
When the IT Act was passed in 2000, it did not include the offense of cyberstalking unless the act entailed the publication or transmission of obscene material, as defined by Section 67 of the IT Act.
The new addition Section 66A was inserted, which provides penalties for delivering offensive messages via a communication service, and so on.
Anyone who sends a message using a computer or a communication device
- Any information that is blatantly insulting or has a threatening tone to it; or
- Any false information that he continuously spreads through the use of a computer resource or a communication device to create irritation, discomfort, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will;
- Any electronic mail or electronic mail message sent with the intent to harass or inconvenience the addressee or receiver, or to deceive or mislead them about the origin of such messages, shall be punished by a sentence of imprisonment that may exceed three years and with fine.
Even though Section 66A of the IT Act has been struck down from the statute book, stalking has finally come to be recognized as an offense under the IPC.
Consequently, the offense of cyberstalking is now a part of Section 354D of IPC, if not complete protection to the offense. This provision was inserted by the Criminal Law (Amendment) Act, 2013. According to this provision, “Any man who
- 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
- monitors the use by a woman of the internet, email, or any other form of electronic communication, commits the offense of stalking”.
Cases on Cyberstalking
The State Cyber Cell vs Yogesh Padurang Prabhu
Even though the fact that the conviction rate for cyberstalking has been low since the modifications to the IT Act took effect in 2008, the Mumbai cyber cell secured the first-ever ever conviction under the IT Act in Maharashtra in July 2015.
In 2009, the cell looked into the matter of online stalking. Yogesh Prabhu was found guilty of stalking and sending obscene photographs to his co-worker by a metropolitan magistrate court.
Under sections 66-E (the penalty for infringement of privacy) of the Information Technology Act, 2008 and section 509 (word, gesture, or activities designed to offend the modesty of a lady) of the IPC, the court sentenced him to three years in prison and a fine of Rs. 10,000 and Rs. 5,000, respectively.
The conviction was procured on evidence including a crucial witness statement stating that the crime was committed using a laptop sponsored by the office.
Manish Kathuria And Ors. Etc. vs State of Punjab and Other Etc.
The Manish Kataria case, which featured the stalking of a lady called Ritu Kohli, was the first documented example of cyberstalking in India, and it was the impetus for a 2008 revision to the IT Act. Ms. Kohli claimed in her lawsuit that someone was exploiting her identity to communicate in vulgar language on the internet at a certain website.
The man was accused of disclosing her phone information to others in the chat group, resulting in the victim receiving calls from various locations.
This hurt her personal life, causing her significant inconvenience, trauma, and harassment. Finally, throughout the police inquiry, the IP addresses used by the attacker assisted officers in locating one Manish Kathuria, who pleaded his guilt and was arrested. For “outraging the modesty” of his victim, he was charged under Section 509 of the Indian Penal Code (IPC).
Because the IT Act had not yet come into effect when the complaint was submitted, it was not used in this case. Section 66A, on the other hand, was not enacted until 2008. As a result, cases were reported under this provision until it was declared illegal by the Supreme Court of India.
It’s worth noting that a Section 509 analysis does not specifically identify cyberstalking. In these conditions, proving charges of cyberstalking is difficult under current legislation.
Karan Girotra vs State & Anr.
Shivani Saxena filed a police report alleging that she married one Ishan, but the marriage fell apart after only a few days because her husband, Ishan, was unable to consummate the union.
Both of them began living separately, and it was mutually agreed that after one year of marriage, both of them would file a joint petition, on mutual consent, for the award of divorce, following which both parties would be free to marry again. Meanwhile, Shivani met Karan Girotra while chatting on the internet, and he proposed to her.
Shivani turned it down because she was still married at the time. After her divorce, Karan insisted on marrying her.
Karan once took her to a residence, made her unconscious by offering her beverages, and sexually abused her under the guise of bringing her to meet his family members. Karan took obscene photographs of her and began begging for sexual favors from her under the threat of publishing nude photos.
Many goods, including a Santro car, were handed to Karan by the complainant’s family as part of the Roka ritual. Finally, he told the complainant’s mother that the engagement had been called off. Shivani made a complaint, and a case was filed under Sections 328/376 of the Indian Penal Code and Section 66-A of the Information Technology Act.
Even though the Court rejected Karan’s request for anticipatory bail because the accused had circulated nude and obscene pictures of the complainant, it concluded that Shivani had failed to disclose her previous marriage to Karan simply because she agreed to perform the engagement ceremony, even though this had been mentioned earlier. The Court also took into consideration the complainant’s delay in filing the FIR.
The most important detail is that the complainant had agreed to the sexual encounter and had only chosen to file a complaint after Karan declined to marry her. This case exemplifies the judiciary’s cautious approach to cases of internet stalking.
Cyberstalking is a serious kind of online harassment. Furthermore, determining the jurisdiction for dealing with such an offense is a difficult task for the courts. As a result, it is necessary to examine the IT Act to prosecute cases of cyberstalking, and law enforcement agencies must be better equipped to deal with such issues effectively.
Simultaneously, the issues of law and technology in dealing with such offenses must be appropriately handled to lessen the vulnerability of internet users. The following proposals and observations for a better restitution system for Cyber Stalking are made in the article
- Need for International Cooperation– The nature of most cyber-crimes is worldwide, determining which jurisdiction to investigate becomes a key challenge. When stalking occurs in cyberspace, the server of the electronic device used to carry out the stalking may be located outside of India’s territorial jurisdiction. As a result, if service providers such as Facebook, Twitter, or WhatsApp are required to set up a local server in India, it may be possible to investigate such situations. Such an approach might be able to handle the issue of jurisdiction in such circumstances to some extent.
- Need for Inter-state cooperation– The investigative agency fails to conclude the inquiry due to a substantial lack of cooperation and coordination from another state engaged in the crime. In this regard, a Cyber-Crime Inter-State Cooperation Cell might be established and linked to each cyber cell to offer exclusive information on such crimes.
- At Individual-level– As a safeguard against such cyber-exploitation, it is vital to take preventative measures such as suitable security measures to guarantee that personal information is not disclosed on the internet in inappropriate fora. Passwords should not be made too simple for criminals to crack. The privacy settings on social media make it easy to block profiles that bother you. To avoid unwanted harassment, the same procedure must be followed.
- Revisiting the Right to Freedom of Speech and Expression: It is ironic that even though cyber victimization includes abuse of fundamental rights and also gender harassment, hardly any solid step has been taken to curb this. There is a need for striking a balance between freedom of speech and expression on the one hand, and the right to privacy on the other.
Cyberstalking has emerged as a new menace to India’s internet community, particularly women, regardless of their age or socioeconomic status. It has even resulted in the deaths of several young ladies. As a result, India must develop a technically sound legal framework as well as an impartial procedure for properly resolving incidents of cyberstalking.
- DR. S.K. MOHAPATRA, Victimisation of Women Under Cyberspace in Indian Environment, in 2 (3(1)) INTERNATIONAL JOURNAL OF ACADEMIC RESEARCH, 221 July-September, 2015.
- DEBARATI HALDER, Cyber Stalking Victimisation of Women: Evaluating the Effectiveness of Current Laws in India from Restorative Justice and Therapeutic Jurisprudential Perspectives, Temida, 104, (2015).
- JUSTICE YATINDRA SINGH, Cyber Laws, 23 (2012).
- DEBARATI HALDER, Cyber Stalking Victimisation of Women: Evaluating the Effectiveness of Current Laws in India from Restorative Justice and Therapeutic Jurisprudential Perspectives, Temida, 115, (2015).
- GURMANPREET KAUR, Cyber Stalking and Victimization of Women: An Analytical Study, in Law as a Catalyst of Social Change in Present Scenario (Bindu Jindal ed., 2016).
- Karan Girotra V State & Anr. AIR Delhi (2012)
- Manish Kathuria & Others Etc. Etc V State of Punjab And Other Etc. Etc Civil No. 21851 of 2017
- Shreya Singhal vs U.O.I, 167 RPT (2015).
- The State Cyber Cell V Yogesh Pandurang Prabhu, 686 JUDG 3700686 (2021)