CYBER CRIME AGAINST WOMEN IN INDIA AND THE LAWS: Nirbhaya

Showing posts with label Nirbhaya. Show all posts

Sunday, November 8, 2020

Plight of "Punita" : A common tale of 'powerless' women victims of trolling

CYBER CRIME AGAINST WOMEN BY DEBARATI HALDER

Image courtesy : Internet

In 2012 “Nirbhaya” a young female paramedic was brutally gang raped in a cold December night in Delhi, India. Within a few days the police nabbed the offenders and arrested them. All 6 of them were from northern parts of India who came down to Delhi for making their living. All of them were working as transport workers including driver, conductor, cleaner etc. Within a few days of their arrest, the victim died because of the impact of the assault and internal injuries. The charges against the accused were enhanced from rape to include murder under the Indian Penal Code. Among the 6 accused persons, the prime accused committed suicide. Even though the case was taken over by fast track trial court, it took around 10 months for the trial court to convict the accused and award death penalty to the surviving 5 accused. The death penalty was upheld by the Supreme Court of India in 2017. In between one of the accused pleaded to be considered as minor and was declared as minor and hence was dealt under the Juvenile justice administration system. However neither the Supreme Court, nor the high court prevented the accused persons from exercising their rights to appeal against the capital sentence. The Supreme Court considered this case as rarest of rare cases. Except the minor, other convicted accused did not however succeed in their respective pleas to the Supreme Court to reverse the sentence to life imprisonment and the President for mercy petition.[1] All four of the adult convicts were hanged in the wee hours of 20^th March, 2020. Immediately after this the Covid 19 lockdown was clamped strictly almost all over the world preventing several litigants, victims to approach the courts as courts also suffered due to pandemic.

None of the convicted persons in NIrbhaya case came from socio-economically forward class. Except one, others did not complete their basic education as well.[2] Some researches including the controversial India’s Daughter documentary[3] claimed that lack of education could have been the main reason to defy the laws for violating women in this regard. While almost all such researches and findings were concerned about the perpetrators, not many looked into the fate of the wives of such sex offenders who may not have received primary education and may not have been allowed to access justice for themselves because of being women and living in patriarchal societies. Punita, wife of Akshay Thakur, who was one of the convicts, tried her level best to convince the courts and the society at large in her own way that if her husband was hanged, she and her minor son would have to die. On the final day of hearing she was seen shouting, crying, beating herself and fainting before the Supreme Court building. Her actions attracted media and she was probably encouraged to continue to do what she was doing because that would add more TRP to the stories that were being made on Nirbhaya sentencing. Soon she made headlines in almost all domestic and foreign news channels and she was center of debates for and against death penalty. Simultaneously she was targeted by internet trolls vigorously.[4]

In the recently held 9^th international victimology conference organized by Jindal institute of Behavioral Sciences[5] I had addressed the issue of cyber victimization of Punita through my paper titled “Critical analysis of the case of wife of Nirbhaya rape convict: therapeutic jurisprudence & cyber victimological perspectives”. While the media could successfully (and probably rightly) generate public sympathy for the rape victim and her family, they generated extreme hatred to Punita because she was apparently ‘supporting her husband’. The internet platforms added fuel to the fire in this hate campaign. If one sees the news reports on Punita Devi on the social media handles of the news media channels, one would get to see that the comments posted about her and opinion generated on her created extremely negative profile of hers which would go a long way to prevent her from getting any job in any private or public sector. It was a visual victimization of Punita on cyber space which still exists on cyber space and will be existing forever. In my earlier research on visual victimization of women on cyber space, I had observed that the victims of such visual victimizations may now know about their online victimization because they may never get access to the internet and digital communication media as their urban counterparts may get, which may eventually help the later to reach the criminal justice machinery to remove these contents.[6]

Women such as Punita are often seen as ‘co-accused’ by the public at large. Coming from socio-economically backward communities and being educationally challenged, most wives of sex offenders in several Asian countries (where patriarchy rules), may not be allowed to access justice for themselves. Apparently she approached the family court in her native district for divorce because the Hindu Marriage Act under S.13B(2ii) allows women to get ‘quick’ divorce under special grounds which includes conviction of husband for rape, sodomy, bestiality etc.[7] But she was too late in approaching the court. She did not want to live as a widow of a hanged rapist. She preferred to be a divorcee. Women in such situations are blamed by the families and public at large for failing to satisfy their husbands sexually and materialistically which may have encouraged the later to go ahead for raping and sexually assaulting other women. These women cannot go ahead for divorce while the trial is on because this would not only attract social taboo, it will also push such women to extreme poverty: they have to leave the matrimonial homes, they may not be accepted in their parental homes and they may not get any financial support from anyone.

How can Therapeutic Jurisprudence help? Justice Krishna Iyer a legendary judge who introduced new paradigm to reformative justice in India mentioned about applying Therapeutic jurisprudence in the prisons for reforming the prisoners in 1970’s.[8] But after him we did not get to see the use of the term by the judges while dealing with reformative criminal jurisprudence in India. In numbers of my researches however I have shown that the concept of Therapeutic Jurisprudence has submissively influenced the Indian judges.[9] The spirit of Therapeutic Jurisprudence may help wives of sex offenders especially in countries like India. In my earlier research titled “Free Legal Aid for women and Therapeutic Jurisprudence: A critical examination of the Indian model”,[10] which was published In the edited book volume titled Methodology And Practice Of Therapeutic Jurisprudence Research edited by Stobbs Nigel, Bartel Lorana & Vols.M , I had observed that women especially from socioeconomically backward communities may not be permitted to access justice even if the legal counseling is freely available through free legal aid clinics. This situation may be improved by vigorous campaigning by legal aid volunteers and law students. The law students, practitioners and judges must be sensitized about Therapeutic jurisprudence and law’s therapeutic effects which may bring tremendous change in women empowerment. Wives of sex offenders go through tremendous traumatization primarily because they feel cheated in their marriages and then feel threatened when it comes to social security for them. As such, mental wellbeing of these women are least taken care of when the court decides to charge the husbands, i.e. the accused in sex offences. In my presentation in the international victimology conference mentioned above, I have proposed that courts must consider to parallelly counsel such wives through free legal aid cells so that they may be made aware about their rights for divorce, matrimonial alimony, child custody and maintenance for child.

Further, I have also proposed that courts must suomotu consider to pass restraining order for the media houses regarding airing the images of grieving wives, who may or may not be accompanied by their children. These women do not make any ‘drama’ to stall the execution of sentences for supporting their husbands. They express their anger, frustration and fear for their own future which is dependent on the longevity of their husbands. Unfortunately their expression of fear, frustration etc are hugely consumed sadistically by the society at large and due to the non-ending presence of the clippings on the internet, such women may be profiled in a negative way. I have proposed that the scope of Right to be forgotten must be expanded in such cases which the courts must take up extending the power of judicial intervention for ensuring the privacy rights of women. Interestingly many courts across the globe are shifting burden to the website companies for not removing objectionable contents especially when it comes privacy of women and children. India has laws for website liabilities in this regard under S.79 of the Information Technology Act, 2000(amended in 2008). This provision read with Information Technology (reasonable security practices and procedures and sensitive personal data or information ) Rules 2011 mandates that web companies shall be held liable if they do not take down objectionable contents within due time. This brings two major points to be considered: who reports it? Whether this can be considered as ‘protected speech and expression’. Indian judicial understanding regarding freedom of speech on internet is expanding and courts have started using judicial discretion to not to consider each and every speech as speech falling outside the purview of Article 19(1)(A) of the Indian constitution which guarantees freedom of speech and expression as a fundamental right. It is obvious that women such as Punita would not know about such legal jurisprudence. The courts therefore must consider adding this issue in the bag of ‘reformative and rehabilitative considerations’ when awarding the sentences (including life sentence or capital sentences). This may go a long way to prevent secondary victimization of the wives of sex offenders who are ‘innocent victims’ of the entire situation.

It is therefore hoped that if the issue of online as well as real life victimization of the wives of the convicted sex offenders are seen from the Therapeutic Jurisprudential aspects, the rights of women to access justice, rehabilitation and privacy may be secured.

Prof(Dr) Debarati Halder, LL.B, LL.M, Ph.D(Law)(NLSIU) is a Professor at Unitedoworld School of Law, Karnavati University, Gujarat, India. She is the founder of Centre for Cyber Victim Counselling (www.cybervictims.org) and the India chapter head of International Society of Therapeutic Jurisprudence. She is the pioneer in introducing Therapeutic Jurisprudence as a part of credit course in legal education in India. She can be reached @debaratihalder@gmail.com

[1] See for more in PTI(2020) Nirbhaya case convicts to be hanged at 5.30 a.m. as Supreme Court dismisses plea against rejection of mercy petition. Published on March 20.2020 in The Hindu. URL: https://www.thehindu.com/news/national/nirbhaya-case-convicts-to-be-hanged-as-supreme-court-dismisses-plea-against-rejection-of-mercy-petition/article31114747.ece Accessed on 21.03.2020

[2] For more, see in Profiles: Who were the Delhi gang rape convicts?. Published in https://www.bbc.com/news/world-asia-india-23434888#:~:text=Courts%20convicted%20six%20people%20for,student%20in%20a%20moving%20bus. On March 20. 2020, accessed on 21.03.2020

[3] For more, see in Banned film India's Daughter shown in rapists' slum

. Published in https://www.bbc.com/news/world-asia-india-31865477 . On March13. 2015, accessed on 21.03.2020

[4] For example see the comments @ https://www.youtube.com/watch?v=rzwPrx1l9Hg Accessed on 29.10.2020

[5] The conference proceedings and my presentation are available @ https://www.youtube.com/watch?v=c9__aYyD9cA

[6] Halder D., & Jaishankar, K. (2014). Online Victimization of Andaman Jarawa Tribal Women: An Analysis of the Human Safari YouTube Videos (2012) and its Effects. British Journal of Criminology, 54(4), 673-688. (Impact factor 1.556). DOI: 10.1093/bjc/azu026.

[7] Section 13(2)(ii) in The Hindu Marriage Act, 1955 states

“A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground………. that the husband has, since the solemnisation of the marriage, been guilty of rape, sodomy or bestiality”

[8] See for more in Md Ghiasuddin vs State of AP . reported in (1977) 3 SCC 287. Available at: www.indiankanoon.org/

doc/1850315/,

[9] See Halder, Debarati, Why Law Fails to Be Therapeutic in Spite of Therapeutic Judicial Efforts: A Critical Analysis of Indian Legal Education From the Therapeutic Jurisprudence Perspective (October 28, 2018). Unitedworld Law Journal, Vol 2, Issue: I, ISSN: 2457-0427, (2018) pp 173-182, Available at SSRN: https://ssrn.com/abstract=3274175

[10] Halder, D. (2019), Free Legal Aid for women and Therapeutic Jurisprudence: A critical examination of the Indian model. In Stobbs Nigel, Bartel Lorana & Vols.M (eds.), Methodology And Practice Of Therapeutic Jurisprudence Research. USA: Carolina Academy Press.

Please do not violate the copyright of this blog. Please cite it as “Halder Debarati. (2020), Plight of "Punita" : A common tale of 'powerless' women victims of trolling" November, 8, 2020, published in http://debaraticyberspace.blogspot.com

[3] For more, see in Banned film India's Daughter shown in rapists' slum

. Published in https://www.bbc.com/news/world-asia-india-31865477 . On March13. 2015, accessed on 21.03.2020

[4] For example see the comments @ https://www.youtube.com/watch?v=rzwPrx1l9Hg Accessed on 29.10.2020

[5] The conference proceedings and my presentation are available @ https://www.youtube.com/watch?v=c9__aYyD9cA

[7] Section 13(2)(ii) in The Hindu Marriage Act, 1955 states

[8] See for more in Md Ghiasuddin vs State of AP . reported in (1977) 3 SCC 287. Available at: www.indiankanoon.org/

doc/1850315/,

Friday, March 6, 2015

Why “India’s daughter” and sons cry in anger? Let us face it

CYBER CRIME AGAINST WOMEN BY DEBARATI HALDER

Since March 4, 2015 every one in the social media in India and that of Indian origin were speculating about a new episode that would be unveiled by the BBC through its documentary India’s Daughter. When it was released on March 5^th ahead of its original date on March 8, everyone who could watch it, had their own reactions: anger, shame, coupled with a feeling of frustration when the Government of India decided to ban the documentary film in Indian jurisdiction. But note that we are in the internet era and this frustration was not for not being able to see the documentary in the television or the YouTube, but because of the failure of the criminal justice machinery to take action against the people who expressed their (peculiar) opinions about women in Indian society and about the delay in the hearing date in the Supreme Court which would have given the final verdict for the fate of the convicts if it was taken up at an urgent basis. When it came for me to watch it, I actually felt reluctant. I already had gone through hundreds of ‘reviews’ of the film within the day from my Facebook friends, Twitter handles that I follow and the other online portals who were discussing about the issue. It was expected that majority of men would speak about women’s liability in getting sexually victimised, women would speak about better education and awareness to stop sexual harassment and violence against women and the film itself would speak about the callous situation India is going through. What was unexpected was the version of the two lawyers who openly challenged women’s right to be equal human beings in Indian society. I did get to see bits and pieces of the film and like all of other readers I felt frustrated. But my frustration lies in different grounds:

Let us speak from the perspective of ethical issues: defending a client is a noble work and Indian constitution like many other constitutions guarantees the rights of the accused to defend his case through his lawyer. But by way of defence, a lawyer can not make any offending comments to women at large. I understand that many from the legal fraternity would have made complaints to the Bar Council of India against the two lawyers who were interviewed by Udwin for the purpose of this documentary. But interestingly I find it more offensive due to the way of usage of language by the lawyers. None could speak proper English and this made the offensive comments more vulgar and offensive to me: consider one comment “........The ‘lady’, on the other hand, you can say the ‘girl’ or ‘woman’, are more precious than a gem, than a diamond. It is up to you how you want to keep that diamond in your hand. If you put your diamond on the street, certainly the dog will take it out. You can’t stop it.”( by M.L.Sharma, the lawyer). There are many other such statements from both the lawyers. But what angers me is the understanding of the lawyers: women are certainly not ‘things’ and men are always not ‘dogs’. Again, consider this statement from the same lawyer “..... A woman means, I immediately put the sex in his eyes.” What exactly he wanted to mean is unclear to me, but I do understand that may be he wanted to say men and women cannot be ‘friends’ and other than being blood related, they are always sexual partners. But certainly a woman cannot and should not be treated as a ‘sex-item’ if she is seen with a man who is not her husband, father or brother or son. If the statements were taken in Hindi or in any other regional language, I am sure, the effects would have been more devastating because he would have been blunter like the rapist himself. The other lawyer nonetheless, was more direct in his warning to all women who would choose to roam in the streets with their boyfriends. Did these two lawyers forget the basic principles of equality to all guaranteed in the Indian constitution? Did they know that their remarks can attract provisions like S.509 of the Indian Penal Code which prescribes punishment for derogatory remarks to women? Did they know such comments may even attract provisions meant for criminal intimidation, threatening etc, all of which are basic provisions in the Indian Penal Code? How could they turn into defence lawyers in criminal courts without knowing the basic criminal provisions which safeguard women in India? What sort of legal education they may have got?

Now coming to the rapist’s confessions; at one point of time, I felt that the documentary was actually helpful to the prosecution because the rapist had confessed his crimes publicly. His statements about his own past, his acquaintance with other rapists and their involvements in the rape case leave no doubts about his involvement in this case. This was no ‘accident.’ He is probably a habitual eve teaser and also sexual offender. He along with his gang, raped and brutally hurt the woman to death. He confessed that the victim’s intestine was brought out by the other rapist and they all enjoyed sadistically her situation. He does not have any remorse. He cannot. As some other interviewees pointed out, he is one such man who are brought up with the idea that women are inferior to men and women are to be beaten, sexually assaulted and killed if and when men feel. His lawyers as well as some other men opined that women ‘provocate’ men to rape by their dressing, by their ‘independence’ to roam in the nights. Prosecution can well use these points ( and probably had used already) to prove his criminal mindset and make the case as one ‘rarest of rare.’ But consider why then the government would have blocked the video in India? First of all, as per the Indian criminal laws, a rape victim’s name or identity cannot be published publicly. By now, we all know that her name was Jyoti. But the counter arguments may show that her parents did not object for publicising her name. However, subsequent reports told that her parents neither wanted such show-off of their daughter’s victimisation. Further, as the news media says, the director of the film was not given permission for commercial usage of the film. Have you considered why such restrictions are put in this case? The case is not yet closed. Forget about what image India has as a ‘rape capital.’ But have you noted this almost sidelined ‘headline’ which appeared almost successively following this documentary controversy? If you are not aware, let me take the opportunity: in Nagaland a large group of people broke into the jail to publicly thrash a rape convict who later died of the beatings. The public anger towards the rapist and the lawyers may have reached such height that before they can be prosecuted or charged or the final verdict be given by the court, they may face similar fate. Who stands responsible then? The same media and the human rights activists may then take their own turns to defend the rights of the accused to be tried by the proper channel. Seeing in that perspective, probably the government has taken the right decision to block the video within the Indian jurisdiction which, they are empowered by S.69A of the Information Technology Act which gives power to issue direction for blocking for public access of any information through any computer resource (not to forget, the order is restricted within Indian jurisdiction, even though the Information Technology Act extends its scope for offences or contraventions done beyond the jurisdiction of India).

But now, let us see it from researcher’s point of view: why would the video be suspended when we can get to see the beheading videos? When internet can spread the video from one site to another or share the same in personal homepage, giving every one opportunity to see a banned video? I also support the arguments of some that let the video be open at least for the purpose of research. Let it not be used for commercial purposes (even though as alleged, the director has actually sold the rights to BBC and BBC may not restrict it for non-commercial purposes). The rage regarding this video may have a natural death (let us hope) because (I fear) it cannot influence those who live in societies where such videos are not seen as ‘awareness creating’ videos and rather this would be seen as a fitting reply to women’s boldness. Unfortunately, as the documentary shows, India has more of such societies. Let us hope that the documentary returns only for non-commercial purpose and enlighten those who can take the message to those societies and people who feel women are born to be victimised.

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