Since NCIID is not explicitly defined as an offense under Indian laws, but rather is a constituent of other offenses, courts in India have invoked different penal provisions in dealing with such cases. In this section, we discuss two court judgments on NCIID, one that satisfactorily upheld a woman’s fundamental right to equality, privacy, and dignity, and another that misrecognized the harm caused by the offense and fell into the patriarchal trap of blaming the victim.
2.1.4.1 Vikas Garg and Ors v. State Of Haryana (2017)
This case involved the commission of a range of offenses, among which the threat of dissemination of nude images played a central role. It is not entirely clear from the facts of the case, as narrated in the judgment, whether the intimate images were consensually shared in the first instance, but we refer to the case to highlight the presence of harmful gender stereotypes in the judgment of the Punjab and Haryana High Court, which not only misrecognized the crime but also completely defeated the ends of justice.
The case involved students of Jindal Global University. The victim stated that upon receiving nude pictures from one of the accused, she was coaxed into sending back nude photographs of her own. These pictures then became the basis of a long-drawn blackmail of sexual, emotional, and physical harassment. The accused then threatened to make her nude photographs public, to the university and her parents, unless she had sex with him and his friends. As such, the victim was coerced into having sex with the accused. A trial court found all three accused guilty under Sections 376D, 376(2)(n), 376, 292, 120B, and 506 of the IPC, and under Section 67 of the IT Act, and sentenced them to various terms of imprisonment.
Subsequently, a petition to suspend the sentence of the accused and grant them bail was decided by the Punjab and Haryana High Court in September 2017. Its judgment provides us with important signposts of what not to do in cases involving NCIID. The High Court made wholly unwarranted remarks about the character of the woman, describing her conduct as “promiscuous”, and saying that she indulged in “casual sex”, “adventurism”, and “experimentation in sexual encounters”. The judgment also repeatedly mentioned the woman’s use of drugs, cigarettes, and alcohol, and the fact that condoms were found in her hostel room, suggesting that these pieces of information have a bearing on the offenses committed. The judgment used these as justifications to suspend the sentences of the defendants and grant them bail. The court showed undue sympathy for the accused on account of the “promiscuous” and “perverse streak” of the victim, suggesting that she is responsible for what happened to her.
The case was then brought to the Supreme Court of India by a special leave petition in November 2017, which stayed the grant of bail. Finally, in its judgment dated 30 September 2022, the Punjab and Haryana High Court affirmed the judgment of the trial court, finding all but one accused guilty of charges under Sections 376D, 376(2)(n), Section 292 r/w Section 34 of the IPC, and Section 67 of IT Act.
2.1.4.2 State of West Bengal v. Animesh Boxi (2018)
This case, too, involved the commission of a range of gendered offenses, including doxxing and NCIID. We refer to this judgment as a positive example of correctly recognizing the nature of the offense.
The accused in the case, Animesh Boxi, posted personal photographs of the victim, along with her name and her father’s name, on Pornhub, without her permission. He was subsequently charged under Sections 354A (sexual harassment), 354C (voyeurism), 354D (stalking), and 509 (outraging the modesty of a woman) of the IPC, and Sections 66C (identity theft), 66E (violation of privacy), and 67 and 67A (transmitting obscene material online) of the IT Act.
In March 2018, the Judicial Magistrate in Tamluk, Medinipur in West Bengal, found the accused guilty of all charges. The court rejected the accused’s defense that since his acts did not physically injure the victim, he could not be held guilty under the charged Sections, which fall under the chapter of ‘Of Offenses Affecting the Human Body’ of IPC. Instead, the court held that the victim’s reputation had been injured, which was sufficient for the case to fall under the ambit of the term injury as laid down in Section 44 of the IPC. Section 44 defines the term injury as any harm illegally caused to any person, in body, mind, reputation, or property. The court also found Boxi guilty of publishing private images online in violation of Sections 66E, 67, and 67A of the IT Act, and committing identity theft under Section 66C of the same Act, as he had hacked into the victim’s phone and taken the pictures secretly.
This case demonstrates how a judgment can advance a rights-based approach through creative interpretation of the law. Rather than viewing the case through the stereotypical tropes of womanhood, or making moral judgments about the victim for taking the photographs in the first instance, the judgment correctly placed the rights of the woman front and center and emphasized the non-consensual distribution of intimate images as the foremost consideration. Further, in assessing the harm caused by NCIID, the court was sensitive to the dangers of virality in the virtual world. It noted that the pictures and videos have the potential to cause harm beyond geography and time due to the affordances of cyberspace, where the victim would be repeatedly subjected to “virtual rape”.