Access to Justice Issues in Cases of Online Gender-Based Violence

This module highlights the various challenges and barriers faced by survivors of online gender-based violence (OGBV) in different stages of their pursuit of access to justice, beginning from filing of a police complaint, to the stages leading to trial and judgment by court. These challenges or barriers call for greater sensitivity by courts in adjudicating cases of online violence in order to ensure an effective remedy for the survivors. The module also provides some suggestions for courts on what they can do within their powers to ameliorate the access-to-justice issues faced by the survivors.

Access to justice is an invaluable human right, which is also recognized in most constitutional democracies as a fundamental right.¹ It is a basic principle of the rule of law. Access to justice is an important prerequisite for the effective enjoyment and protection of other traditional as well as new social rights.² Hence, it is seen as the most “basic human right”,³ and recognized as such by international human rights treaties, including the Universal Declaration of Human Rights (UDHR)⁴ and the International Covenant on Civil and Political Rights (ICCPR), 1966.⁵

Article 8 of the UDHR provides that everyone has the right to an effective remedy by competent national tribunals for acts violating the fundamental rights granted to them by the Constitution or by law. Article 10 of the Declaration recognizes the right of everyone to be entitled, in full equality, to a fair and public hearing by an independent and impartial tribunal. The same rights relating to access to justice are also recognized by Clause 3 of Article 2 of the ICCPR.

In India, the Supreme Court has recognized access to justice as a guaranteed fundamental right under the Constitution, particularly in relation to Article 21, which guarantees the right to life and personal liberty.⁶ Through several decisions, the court has recognized different aspects of access to justice. In Hussainara Khatoon v. State of Bihar (1979),⁷ the right to speedy trial was recognized as an integral and essential part of the fundamental right to life and liberty enshrined in Article 21.

Drawing upon the Directive Principle of State Policy under Article 39A, the court has, in several cases, recognized the right to free legal aid and legal representation as a fundamental right implicit in, and an inalienable element of reasonable, fair, and just procedure under Article 21. In Mohammed Ajmal Mohammad Amir Kasab and Ors. v. State of Maharashtra (2012),⁸ the court held that the right to access legal aid is present even at the pre-trial stage.

In Imtiyaz Ahmed v. State of Uttar Pradesh and Ors (2012), the Supreme Court held that access to justice implicitly includes the right of access to an independent judiciary. In the same case, the court also expanded the scope of this right. It held that access to justice is much more than improving an individual's access to courts, or guaranteeing representation, and must be defined in terms of ensuring that legal and judicial outcomes are just and equitable. In so doing, the court relied on the United Nations Development Programme, Access to Justice Practice Note (2004), which identifies several barriers to realizing effective access to justice. These include prohibitive costs of using the legal system and long delays, the lack of effective legal aid and affordable legal representation, abuse of authority and power, limitations in existing remedies provided by law, gender bias in law and legal systems, the lack of legal awareness, avoidance of the legal system due to a perceived futility of purpose, etc.⁹

The above discussion indicates that effective access to justice is not only a matter of access to courts and speedy trial, rather it is also concerned with improving access to laws and law enforcement agencies such as the police.

Victims of crime, particularly women, face many barriers to accessing justice and getting redressal for the violation of their rights. Often, women find it difficult to even approach the police and register a First Information Report (FIR). This difficulty was noted by a Constitution Bench of the Supreme Court in Lalita Kumari v. Government of Uttar Pradesh (2013).¹⁰ Access to justice in terms of affordable and effective legal aid and advice as well as adequate and equal representation are also problems that victims have to contend with. Under the Legal Services Authority Act, 1987, women can receive free legal services to file or defend a case,¹¹ but this is conditional upon the satisfaction of the concerned Legal Services Authority that the woman has a prima facie case to prosecute or defend.¹²

During trials, women often undergo revictimization through repeated courtroom appearances, and aggressive and intimidating cross-examinations.¹³ This issue was flagged as a serious concern by the Supreme Court in Mallikarjun Kodagali (Dead) represented through Legal Representatives v. State of Karnataka and Ors (2018).¹⁴ The court also observed that while the courts are able to provide some solace to the victims through the victim compensation scheme, it is not adequate and that the judiciary is obliged to go beyond merely awarding compensation and take into consideration the larger picture from the perspective of the victim, which could even include issues relating to infrastructure in court buildings.¹⁵ Even the victim compensation scheme as is currently implemented has many shortcomings: inadequate compensation, lack of uniformity in the amount of compensation across states in India, lack of awareness, poor budgetary allocation by states, cumbersome and rigid procedures to obtain compensation, and focus on offline grave offences.¹⁶

It is useful to refer here to the Declaration of the Basic Principles of Justice for Victims of Crime and Abuse of Power, adopted by the United Nations General Assembly,¹⁷ which has also been endorsed by the Supreme Court of India.¹⁸ The Declaration provides that victims of crimes “should be treated with compassion and respect for their dignity”.¹⁹ It also states that judicial and administrative mechanisms should be strengthened and made responsive to enable victims to obtain redress. Responsiveness is facilitated by informing victims about the details of their case proceedings; ensuring their participation and giving due importance to their views and concerns; providing proper assistance to victims throughout the process; taking measures to minimize inconveniences, protecting their privacy, and ensuring the safety of both victims and witnesses; and avoiding unnecessary delays.²⁰

This section highlights some of the hurdles that women victims of online gender-based violence (OGBV) face while pursuing remedy. These hurdles are not confined to access to the legal system (police, courts, and other authorities) in terms of existence of laws, availability of legal aid and counsel, the process of adjudication, enforcement, etc. Rather, a broad look at access to justice issues should recognize and address "the structural" inequalities between men and women, the systemic and historic disadvantaged position of women, the culture of impunity in cases of violence against women, and the prevailing gender bias and system of patriarchy that continue to persist in the judicial system and in society.”²¹

Adopting such a broad view of access to justice, the following subsections will discuss the barriers that victims of OGBV face in every stage of the pursuit of justice – from the time of the incident of crime and the filing of a police complaint, to the investigation, the trial, and the eventual adjudication by the court.

3.2.1.1 Hesitancy in filing complaints

Most OGBV cases either go unreported in India, or are reported to public authorities with significant delays.²² An IT for Change study found that a mere 10% of the respondents, who were survivors of technology-facilitated gender-based violence (TFGBV), sought help from the police,²³ indicating a hesitancy among women in reporting such crimes. The reasons for the hesitancy range from the stigma associated with sexual crimes to the fear of injustice. Some of these causes are explored below:

Stigma and further harassment

In India, the shame and stigma associated with sexual violence affects victims more than perpetrators. It is women as victims/survivors who are blamed for sexual violence, which is reflected in comments like “she asked for it”.²⁴ Such stigma is also at work during the filing and follow-up of a police complaint, due to “deep-rooted patriarchal cultures within institutions of law enforcement that manifest either as unfriendliness or as patronizing protectionism”.²⁵ Besides the negative perception associated with having faced a gender-based crime, there is a stigma associated with being involved in a police case.²⁶ Often, people close to a survivor distance themselves when the person decides to seek legal recourse. Fear of stigma is, therefore, a major factor that stops women from reporting OGBV. Many survivors resort to alternative and worrying options, such as reducing their use of and engagement on platforms or tailoring their online personas to avoid abuse.²⁷

Survivors of OGBV also hesitate to file complaints due to fear of intimidation and revictimization. It is common for offenders to resort to intimidation to prevent survivors from reporting a crime, or, in cases where a report has already been filed, to dissuade them from pursuing legal action.²⁸ During the #MeToo movement, for instance, several prominent and powerful people accused of sexual misconduct filed defamation cases against complainants, which was widely considered to be an intimidation tactic.²⁹ Revictimization happens when survivors are subjected to threatening messages via technology-facilitated devices, which is also a form of OGBV.³⁰ It is natural for persons who have faced severe verbal or emotional abuse online to be afraid of the physical consequences of filing formal complaints.

Power imbalances

Survivors often hold very little power at various levels of the legal process and system. This not only fuels gender-based violence but also deters women from reporting these crimes. The power imbalance is exacerbated in cases where there are other intersecting inequalities between perpetrators and survivors, such as in terms of caste, religion, class, etc.

For instance, in cases where the perpetrator is a popular person, like an actor or a politician, the survivor fears not only intimidation but also that the blame would be shifted to her. Powerful abusers often easily evade legal punishment using their resources and influence. They are also protected by digital platforms whose content moderation mechanisms penalize marginalized groups and safeguard people in power.³¹

Other instances of unequal power manifest where the perpetrator is the survivor’s teacher or supervisor, in which case the fear of consequences to their education stops survivors from filing complaints.³² The List of Sexual Harassers in Academia, that was compiled by Raya Sarkar in 2017, revealed the pervasiveness of such abuse in the country.³³ That several women agreed to anonymously call out abusive professors through Sarkar’s list reveals that the fear of repercussions has a strong hold over survivors in cases where there is a significant power imbalance between them and their abusers.³⁴

Power imbalance within a household can also impact the reporting of a crime. The decision to file complaints is often not the survivors’ alone, but rather influenced by other members of a family. Often, the most power in a family unit is held by male members and/or the elders, who may overrule the survivor’s decision to seek legal recourse,³⁵ due to the purported dishonor it would bring. Further, parents may cite fear for the safety of the survivor and the rest of the family in deciding against filing a complaint, especially if the abuser is powerful.³⁶

Fear of counterintuitive outcomes

Finally, the fear of punitive measures is a strong cause for under-reporting OGBV. Many survivors do not report their experiences of OGBV to their families for fear that their phones would get taken away,³⁷ or that they would be asked to stop using such platforms thereon.³⁸ There are many instances of sexual violence survivors being married away at an early age for fear that they will not find suitable grooms.³⁹ Apprehensions about such outcomes keep women from reporting their experience to close family members and, by extension, to formal authorities.

Survivors are also skeptical of their chances of getting justice. Many fear that approaching courts will lead to delays and expenses that they do not wish to, or cannot, bear.⁴⁰ Especially in cases of OGBV occurring in the online public sphere, the difficulty of locating abusers, among other things, leads to significant expenses and delays in resolving cases. The added fear of ridicule, stigmatization, and revictimization in police stations and during court proceedings, and the possibility of intimidation by powerful abusers,⁴¹ prompt many survivors, especially those who personally know senior police officers,⁴² to opt for out-of-court settlements.

3.2.1.2 Lack of support and knowledge gaps in filing complaints

Lack of access to knowledge, information, and rights

Victims of gender-based violence and OGBV are often not taken seriously by law enforcement agencies,⁴³ and thus lack support in the very first step of accessing justice, namely, filing a police complaint.

Many women, despite being digitally literate, are unaware of the criminal nature of OGBV. The complicated nature of cybercrime laws – and OGBV itself – means that survivors also find it difficult to ascertain the type of violence they have faced and whether it has crossed legal thresholds to merit complaints or it is a silly, dismissible prank.⁴⁴ Further, awareness about one stop centres⁴⁵ and other reporting mechanisms are also low. In 18 months between 6 July 2016 to 24 January 2018, only 179 complaints of online hate content were received through the email helpline launched by the Ministry of Women and Child Development in July 2016,⁴⁶ even as research indicates that the number of instances of women receiving abusive content on major social media platforms is in the thousands for a period of one week.⁴⁷

When victims of OGBV do approach the police, they are often satisfied with the police issuing a warning. They are not only unaware of their fundamental right to access justice, but also the impact of such crimes on other fundamental rights such as privacy, dignity, and freedom of expression. In many cases, the police are not forthcoming with such information.⁴⁸

Problems with registration of complaints

Legal recourse is made difficult by the regressive, and sometimes, hostile attitude of police officials, who may refuse to register a First Information Report (FIR). An investigation revealed that Station House Officers – the first points of contact for gender-based violence victims – in Delhi believed that women who initiated action either “invited rape” or were extortionists.⁴⁹ Similar attitude is also found among police officials in rural India.⁵⁰ A study conducted by Human Rights Watch on the implementation of India’s criminal laws governing sexual offenses in rural areas and among marginalized communities in Rajasthan, Madhya Pradesh, Haryana, and Uttar Pradesh, found that “the police not only failed to discharge their official duties to promptly register and investigate complaints, but abused their power, threatening women and their families to drop or settle their rape complaints”.⁵¹ The low conviction rate in rape cases reinforces such beliefs and causes denial or delay in the registration of FIRs.

In cases of OGBV in particular, the police impose the burden of not falling prey to such crimes on women.⁵² For example, a Mumbai Cyber Crime Cell official stated in an interview that women should avoid posting photos online so as to not “find themselves in a position where they have to go to the police”.⁵³ A Kerala Police advisory on safe online behavior suggested several “restrictions for girls”, including “avoiding posting selfies with boys”.⁵⁴ The situation is worsened by the trivialization of OGBV. Even police officers trained in gender-sensitivity deprioritize such cases since the woman’s (physical) “body is not implicated”.⁵⁵ One study noted a tendency on the part of the police to first warn abusers or tell victims to block abusers, ignoring the crime itself.⁵⁶

The police may even be complicit in hushing up cases, either by encouraging compromise or coercing victims to admit to filing false complaints.⁵⁷ Their nexus with the accused and other local political centers of power such as Khap Panchayats creates barriers to access to justice.⁵⁸ A recent study revealed that victims of OGBV in India, especially those belonging to minority communities, avoid reporting crimes for fear of criminalization or revictimization in the form of police abuse.⁵⁹

The apathy of law enforcement officials leads to secondary victimization, which occurs when trauma is re-inflicted on the victim by the police asking her irrelevant questions such as about her conduct and attire.⁶⁰ Secondary victimization also occurs when the victim is asked to recount her harrowing experience multiple times in front of different officers for the purposes of recording.⁶¹ It is linked to post-traumatic stress disorder (PTSD) symptoms, self-blame, and maladaptive coping strategies, among gender-based violence victims.⁶²

Burden of legal costs and lack of financial and emotional support

Victims of gender-based violence and OGBV face a paradox. Some are financially and socially dependent on their families, but stigma prevents them from informing their families about their experience of sexual violence. Where victims are able to approach the police without the knowledge and support of their families, they grapple with the costs of legal proceedings alone. The statutory guarantee of free legal aid to all women regardless of their economic condition⁶³ is seldom realized for several reasons. Firstly, the police routinely fail in their duty to inform women of their right to legal aid.⁶⁴ Secondly, there have been situations where volunteer lawyers illegally extort money from clients.⁶⁵ Thirdly, most volunteer lawyers, already few in number, are not specialized to handle gender-based violence cases: in one study, it was found that victims sometimes go through 6-7 lawyers before finding one who could represent them well.⁶⁶ While affluent working women may be able to hire lawyers privately, visiting multiple lawyers and paying fees is impossible for many women. Fourthly, as mentioned earlier, free legal services to a woman under the Legal Services Authority Act is made conditional on the satisfaction of the concerned Legal Services Authority that there is a prima facie case. This can sometimes prevent access to legal aid in genuine cases.

Although criminal cases of gender-based violence or OGBV are state-led prosecutions, victims still find themselves having to frequently visit the police station and court and follow up to ensure action is being taken.⁶⁷ Investigation and litigation are slow processes: in 2021, 1,71,793 gender-based violence cases under the Indian Penal Code (IPC), 1860 and 3,368 gender-based violence cases under the Information Technology (IT) Act, 2000 (IT Act), were pending investigation from past years; while 13,90,086 gender-based violence cases under the IPC and 2,518 gender-based violence cases under the IT Act were pending in courts.⁶⁸ It is unclear whether the mandate of fast-track courts, set up to deal with rape and child sexual offences cases, has been extended to OGBV.⁶⁹

Apart from economic costs in the form of fees, travel to the court or police station, and missed workdays, women also incur significant personal costs,⁷⁰ including secondary victimization as explained earlier. What’s more, survivors rarely receive emotional support and understanding from their families. On the contrary, many women find themselves saddled with housework, and deprived of time to process the traumatic incident or fight their case. In extreme cases, women also face abandonment.⁷¹ Even affluent women who are able to afford the cost of fighting a case have to deal with labelling at workplaces and the need to constantly justify their merit and presence.

What can the court do?

Given the social and cultural contexts that make it difficult for victims of gender-based violence, including OGBV, to report a crime, courts should not consider delay in filing an FIR as necessarily an adverse factor that works against the complainant, if the delay can be satisfactorily explained. In Ajay v. State of Maharashtra (2018), the court observed that “It is a settled law that the delay in lodging a complaint, in case of sexual offences, is to be considered in favour of the victim if her testimony inspires confidence as under normal circumstances the reputation of the entire family of the prosecutrix is at stake.”⁷² In X. State of Karnataka (2022), the Supreme Court highlighted that when examining the delay in filing an FIR, courts must consider the trauma and shock undergone by the victim.⁷³
Sometimes, a case of OGBV may be filed as a complaint directly made to the Magistrate under Section 200 of the Code of Criminal Procedure (CrPC), 1973. In such cases, courts should be sensitive to the stigma that the complainant had to battle to come forward as well, as any power imbalances and revictimization they may face.
If the court finds that in a complaint case, the complainant woman does not have and is unable to afford legal representation, it should issue suitable directions or orders to ensure that the woman receives free and quality legal representation to present her case.
If the court finds that the police was derelict in its duty to promptly register the complaint of a victim/survivor of OGBV or harassed her even further, it should initiate action against the errant officers under provisions such as Section 166A of the IPC.

3.2.2.1 Collection of evidence

As with all criminal cases, evidence is crucial to prove a crime of OGBV beyond reasonable doubt. In sexual offenses, evidence and its admissibility play an especially vital role; low conviction rates not only mean impunity to criminals and injustice to the victim herself, but also delegitimization of rape and sexual harassment victims. Among other things, low conviction rates fuel the false belief that women who report rape or sexual harassment are looking to trouble the accused due to unrelated disputes or to extort money.⁷⁴

OGBV, in particular, involves the collection of digital evidence, which is made complicated by the anonymity of the internet and the increasing sophistication of security features. Although tracking an internet protocol (IP) address might make it easier to collect evidence of OGBV, this is negated by techniques to camouflage one’s identity, such as masking an IP address.⁷⁵ In a 2018 interview, cybercrime police officers criticized the low technical capabilities of forensic laboratories, while a government forensic scientist bemoaned the poor training given to investigating officers in dealing with such crimes. The forensic scientist pointed out, for instance, that her lab would receive monitors instead of central processing units (CPUs), making recovery of evidence impossible.⁷⁶ Bureaucratic hurdles also delay much-needed technological upgrades in government forensic labs.⁷⁷

Another issue with digital evidence is authentication. The virality of the online sphere and its volatility (risk of being overwritten, deleted, or manipulated) makes it difficult to authenticate digital evidence compared with traditional evidence.⁷⁸ Authentication requirements as elaborated under Section 65B(4) of the Indian Evidence Act, 1972, pose technical obstacles in prosecuting cases of OGBV, particularly because the certificate for authentication as required by the Section is many a times not obtained by the investigating machinery, rendering the evidence inadmissible.⁷⁹ Section 65B (4) requires that for admission of digital evidence of any information contained in an electronic record which is printed on a paper, stored, recorded, or copied in optical or magnetic media produced by a computer, a certificate has to be produced that “identifies the electronic record containing the statement and describes the manner in which it is produced, and gives particulars of the device involved in the production of the electronic record”,⁸⁰ and is signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities.

Law enforcement agencies are mandated to follow certain standard operating procedures (SOPs) to reduce the potential for evidence tampering. These include extracting information in read-only mode, maintaining a chain of custody of all agents who handled a particular piece of digital evidence, bit-imaging (to ensure that copies accurately reflect the original), hashing (creating a digital fingerprint which allows matching copies of digital evidence to the original), and installing a write-blocker to prevent accidental tampering.⁸¹ However, as per a 2019 study, law enforcement officers comply with SOPs only if they have a “special interest in pursuing the case”.⁸²

An added difficulty is when victims do not want to be part of the investigation since their intimate data is implicated. There are also pervasive fears that digital evidence against them (such as nude photos) would leak if they complain or file FIRs.⁸³

3.2.2.2 Evidence collection from intermediaries

Platform intermediaries (social media, search engines, internet service providers or ISPs, etc.), which are mostly based in foreign jurisdictions (particularly, the United States), often do not cooperate or respond promptly to requests from law enforcement officials for user profiles or data in relation to OGBV committed using their services. IT for Change’s study found that, out of 1,940 IP log requests sent by Chennai Police’s Cyber Crime Cell to online social media companies between 2016 and 2018, details were received for only 484 requisitions.⁸⁴ In other cases, as a police officer in the same study described, there were month-long delays in exchanges between the police and the platforms regarding evidence.⁸⁵

Another impediment that police officers face in collecting evidence from platform intermediaries is the cultural gap between India and the country where the platform company is based, as a result of which an offense in India may be legitimate speech under the community standards of the platform.⁸⁶ For instance, in an example provided by a police officer in the IT for Change study, the insult implicit in the Malayalam word machi was lost in its English translation, as Facebook representatives refused to consider “infertile woman” an offensive phrase.⁸⁷ In order to overcome this problem, the recently notified Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules), requires significant social media internet intermediaries⁸⁸ to have a physical contact address in India⁸⁹ and appoint a resident chief compliance officer, a nodal contact officer, and a grievance officer,⁹⁰ effectively making Indian laws applicable to those intermediaries which have more than a certain number of registered users in India.

But exerting pressure on platform companies to comply with Indian law is complicated by jurisdictional challenges as, for most platform companies, servers are located out of the country. In these cases, access to relevant data is determined by the Mutual Legal Assistance Treaties (MLATs) – agreements that the Indian government has signed with 40 countries, including the US, for cooperation in cross-border legal processes – and Letters Rogatory,⁹¹ or otherwise informal channels (such as Memorandums of Understanding or MoUs), which are used for obtaining assistance from abroad in the absence of a treaty or agreement between the countries. There are several issues with the MLAT process itself. There are inordinate delays in the process owing to staffing shortages, laxity, outdated systems, and rejection of MLAT requests on technical grounds such as language errors or incorrectly filled forms. An average MLAT request in India takes up to two years to be resolved.⁹²

3.2.2.3 Filing of charge sheet

The report of the police officer filed after the completion of the investigation, also known as the charge sheet, is an important document as it lists the offenses that are found to be committed, the applicable Sections, the names of the parties involved, the names of the persons who appear to be acquainted with the circumstances of the case, etc.⁹³ The charge sheet is then scrutinized by the court and forms the basis of further procedures such as the court taking cognizance of the case and the framing of charges.⁹⁴ While the court can disagree with the penal Sections invoked by the police in the charge sheet,⁹⁵ it is important that the police invoke the right Sections, as it can set the tone for how the court looks at the case.

In cases of OGBV, particularly non-consensual intimate image distribution (NCIID), voyeurism, stalking, etc., our study found an unfortunate trend of the police preferring to deploy anti-obscenity Sections (Section 292 of the IPC, and Sections 67 and 67A of the IT Act), rather than provisions rooted in privacy and consent (Sections 354C and 354D of the IPC and Section 66E of the IT Act).⁹⁶ The stated reasons were the strictness of obscenity provisions and the higher chances of conviction.⁹⁷ However, as discussed in the Typologies on Online Gender-Based Offenses in Law (hereafter, Typologies) module, obscenity provisions do not recognize the real harm from offenses such as NCIID, namely, the violation of privacy and autonomy. Moreover, invoking obscenity provisions, particularly Sections 67 and 67A of the IT Act, can expose the complainant woman herself to criminal charge, as they do not differentiate between consensual and non-consensual image sharing.⁹⁸ Consequently, in a case of NCIID, where the real issue is the accused sharing an intimate image of the victim without her consent, invoking obscenity provision can technically make the victim also culpable for sharing the intimate image with the accused in the first place, despite it being consensual.

This is why it is important to invoke provisions such as Sections 354C and 354D of the IPC, and Section 66E of the IT Act, which recognize the consent of the victim. In State (Cyber Cell) v. Yogisha @ Yogesh Pandurang Prabhu (2009),⁹⁹ involving unwelcome sexual advances by email, doxxing, the creation of a fake profile, and the circulation of solicitous messages attributed to the complainant, the court held that Section 66E would apply as the emails invaded the complainant’s privacy. However, the police are often not abreast of the latest judgments. Even when they invoke Section 66E, they adopt a narrow reading.¹⁰⁰ This Section punishes the “capture, publishing or transmission” of images of the “private areas” of any person without their consent as a privacy violation, but the police tend to interpret this as an and clause.¹⁰¹ As a result, the police do not apply the Section in cases where a woman may have consented to the capture of her image, but not to its subsequent dissemination, which is typical of NCIID cases.¹⁰²

The police also justifies the invocation of obscenity provisions on the grounds that they help cope with the mutations in cyberviolence.¹⁰³ However, while such provisions may provide a pragmatic solution, they also open up the threat of potentially gagging sexual expression.

3.2.3.1 Framing of charges

Framing of charges is a crucial stage where the court, based on the police report and other supporting documents presented by the prosecution, states the offense and the relevant provision(s) under which the accused is charged and will be put to trial.¹⁰⁴ This stage allows the court to review the charge sheet filed by the police and apply its judicial mind to whether or not there are grounds to proceed under the Sections invoked by the police.¹⁰⁵ The Supreme Court in Union of India v. Prafulla Kumar Samal (1978), observed that the court, while framing charges, is not to act “merely as a Post Office or a mouth-piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on”.¹⁰⁶

Thus, for example, if the police have invoked obscenity provisions in a case of NCIID, where the real harm is the violation of privacy and consent, the court can choose to not proceed under the obscenity provisions, and instead charge the accused for offenses under Section 354C of the IPC and Section 66E of the IT Act.

Unfortunately, as discussed in the Typologies module, courts, in such cases, also frequently invoke obscenity provisions, which do not address the harms or rights violations suffered by victims. As the reasoning offered in such cases shows, courts are more concerned with whether the morphed image will deprave or corrupt an individual viewing it.

Courts also invoke Sections that seek redressal for the outrage of a woman’s modesty (Sections 354 and 509 of the IPC). As discussed in the Typologies module, when modesty provisions are invoked, they tend to be used by the court and lawyers to pass paternalistic and moralistic comments about a woman’s conduct and deny her remedy if she does not fit the ideal victim imaginary.¹⁰⁷

Framing of appropriate charges is, therefore, crucial to ensure that the harm and rights violations suffered by the survivor are rightly addressed, without unwarranted judgments being made about her conduct and social standing, and without inadvertently exposing her to criminal charges.

3.2.3.2 Bail conditions

Most sections under the IPC that are used in OGBV cases are bailable in nature, except Section 354 (assault of or use of criminal force on a woman with the intent to outrage her modesty) which is used commonly in cases of sexual harassment.

While bail in criminal cases has to be the rule, courts often use sexist and patriarchal reasoning to grant bail in OGBV cases.¹⁰⁸ Such reasoning focuses on the character of the complainant as opposed to the behavior of the accused or the details of the crime.¹⁰⁹ For instance, in a case involving NCIID and blackmail, the court’s reasoning for granting bail contained a strong reference to the fact that the prosecutrix, a married woman, had consensual sex with the accused and that there was a delay of more than a year in filing the complaint.¹¹⁰

Another issue in granting bail is that bail conditions do not reflect a sufficient understanding of the online public sphere and the role of technology in mediating violence, and are inadequate to reduce harm to the victim while the accused is at large.¹¹¹ Bail orders are not customized to the unique requirements of OGBV cases and impose the same conditions as cases where the harm is not technologically inflicted.¹¹²

Further, we also need to caution against a disturbing trend in bail conditions imposed in gender-based violence cases, where the accused and the prosecutrix are asked to compromise or the former is asked to tie rakhi — an amulet or talisman tied around the wrist of a man typically on a Hindu festival to set up brotherly relations¹¹³ — to the latter, thereby enabling their contact, which can lead to trauma and revictimization of the survivor.¹¹⁴

3.2.3.3 Difficulty in proving guilt and evidentiary value of testimony

Cases of OGBV are mostly dealt with under the criminal jurisdiction of courts, as they constitute offenses under the IPC and the IT Act. As a result, the burden of proof is on the prosecution to offer adequate evidence to establish the guilt of the accused beyond reasonable doubt.¹¹⁵ However, our study found that several cases of OGBV fail to meet the high burden of proof because of hindrances such as bringing in expert testimony, relying on witnesses, and offering the right documentary evidence, among others.¹¹⁶

Another hurdle is the court’s treatment of the victim’s testimony. The Supreme Court’s ruling that a conviction may be based solely on the victim’s testimony¹¹⁷ is conditional on such testimony being sterling, meaning that it must be unassailable and consistent throughout the court process.¹¹⁸ Although the Supreme Court simultaneously clarified that minor contradictions would not suffice to disregard a testimony, defense lawyers routinely and successfully, seek to poke holes in a victim’s testimony through a barrage of questions and by creating an environment that is hostile to the victim. The Supreme Court’s expectation that a sterling witness must “withstand the cross-examination of any length and however strenuous”¹¹⁹ is problematic in light of the trauma and fear faced by victims during a testimony. What’s more? Judges base the credibility of a woman’s testimony on the extent to which she fits the paradigm of an ideal victim.¹²⁰ IT for Change’s study documented several such instances. For example, in a rape case with elements of OGBV, one of the reasons cited by the court to grant bail to the accused was that the victim had failed to report the crime immediately, which the court deemed not “becoming” of a rape victim.¹²¹

3.2.3.4 Admission of digital evidence

The difficulty of proving guilt is compounded by the unique challenges faced in the production and admissibility of electronic or digital evidence. Such evidence is crucial in OGBV cases since the record of wrongdoing or harm is captured on a device or the internet.

Admission of digital evidence is governed by Section 65B of the Indian Evidence Act. Section 65B(1) of the Act differentiates between an original electronic record contained in a device in which the information was first stored and secondary copies made from the original which may be produced (example, handwritten copies) or printed on a paper, and stored, recorded, or copied in optical or magnetic media. The former can be directly adduced as evidence if the owner of the device steps into the witness box and proves that the concerned device, on which the original information was first stored, is owned and/or operated by them.¹²² The latter can be admitted as evidence only if it meets certain requirements specified by Section 65B (2), and more importantly, if a certificate is produced in accordance with Section 65B(4), which identifies the electronic record, and gives particulars of the device involved in the production of the electronic record.¹²³ The certificate has to be given by the person occupying a responsible official position in relation to the operation of the relevant device, such as the owner.¹²⁴ This certification requirement is “to ensure the source and authenticity of the electronic evidence, which are the two hallmarks pertaining to electronic record sought to be used as evidence”.¹²⁵

In most cases of OGBV involving electronic evidence, the production of secondary evidence is more feasible than primary evidence because of the difficulty or sometimes the impracticability of bringing into the court the computer system or computer network where the electronic evidence was first stored. However, the requirement of certification poses hurdles in admitting secondary copies of electronic records as evidence before the court. In some cases, it may not be possible to obtain the certificate if the litigant is not in possession of the electronic device storing the electronic document. Sometimes despite applying to the authority holding the electronic document, a certificate under Section 65B(4) may not be available.¹²⁶ In other cases, the litigant may not be aware of who the concerned authority is to issue such a certificate.¹²⁷

Our study of OGBV cases heard in trial courts across Delhi and Bengaluru found that electronic evidence was often not considered due to the lack of the requisite certification.¹²⁸ In State by Sampigehalli Police Station, Bengaluru v. Faiz Ahamed (2016),¹²⁹ a case of non-consensual capture of intimate image and intimidation, electronic evidence was provided through compact discs (CDs), copies of email, color photocopies of the photographs, and printouts. However, since the prosecution had not produced the certificate for secondary evidence under Section 65B(4), the trial court refused to admit the evidence and acquitted the accused. This is only one instance of how strict application of the certification requirement could make the production and admission of secondary electronic evidence prohibitively difficult for victims of OGBV.¹³⁰

In light of these difficulties, the Supreme Court, in Shafhi Mohammed v. State of Himachal Pradesh (2018), held that certification under Section 65B(4) is not mandatory and can be dispensed with “in the interest of justice” in cases where the device is inaccessible to the person seeking to obtain the certificate (such as where it is in adverse possession).¹³¹ However, the court overruled its own judgment in Arjun Panditrao Khotkar v. Kailash Kushanrao & Ors. (2020), on the ground that the ruling in Shafhi Mohammed case was based on an incorrect reading of the law, thereby making the certificate requirement mandatory once again. To mitigate the rigors of the provision, the court ruled that a person unable to access a device or obtain a certificate must approach the court, which is empowered to order the production of an electronic record under Section 165 of the Indian Evidence Act and other provisions of civil and criminal procedure codes.¹³² In other words, while the certificate is mandatory, if the prosecution is unable to obtain the certificate, it can apply to the court, which in turn, can exercise its powers to direct the competent person to issue the certificate. In this way, the procedural difficulties are sought to be mitigated by the exercise of the court’s power to summon evidence and the necessary certificate.

Apart from the issue of admissibility of secondary electronic records, our study also found that courts, in certain cases, did not consider electronic evidence even when it was present.¹³³ In other cases, the prosecution failed to produce such secondary evidence.¹³⁴ This is concerning as electronic evidence is a crucial part of OGBV cases, without which justice is impossible to achieve.

3.2.3.5 Stigma and patriarchy in the courtroom

For survivors of OGBV, testifying in court can lead to retraumatization, since they are required to remember – and, in a sense, relive – a traumatic event. Survivors report that the fear, loss of control, intimidation,¹³⁵ and physical symptoms, such as pain¹³⁶ they experienced during the assault return before the testimony. Although in-camera trials and measures to maintain victims’ anonymity are meant to reduce re-traumatization, victims still need to enter the courtroom in public view and have their cases announced on a common notice board.¹³⁷

Besides, courtrooms continue to be sexist and patriarchal spaces for survivors of gender-based violence and OGBV. The Supreme Court, in 2021, noted several instances of sexism by judges in sexual assault cases, such as victim-blaming¹³⁸ and patriarchal bail conditions.¹³⁹ In the online context, one of the key findings from IT for Change's study of OGBV cases is the prevalence of sexist stereotypes and patriarchal statements in the courtrooms from the Bench as well as the lawyers arguing before them.¹⁴⁰ These included making unwarranted assumptions about a woman’s modesty or chastity based on her actions; unduly focusing on the age, occupation, or marital status of a woman; expecting certain typical reactions from the woman survivor, etc.¹⁴¹ Sexist and patriarchal observations and judgments by courts also stem from an attitude of benevolent sexism. ¹⁴² As an IT for Change study notes:

“Statements that fall within the ambit of benevolent sexism are usually not overtly misogynistic or hateful towards women, but are rooted in ‘a desire to protect and preserve women’,¹⁴³ rather than safeguarding their inherent rights of privacy, dignity, and equality. Cases of benevolent sexism are usually decided in favor of the survivors – and this is the same when courts consider online gender-based offences, but the reasoning is flawed and steeped in patriarchal and paternalistic notions of protection of women. This takes away from the hard-fought agency of a woman, and fails in providing an equal interpretation of the law.”¹⁴⁴

Here is an example of benevolent sexism. In Lalit Bhola v. State (2018),¹⁴⁵ the petitioner sought to quash the FIR registered against him for the creation of fake accounts in the name of the complainant on a website used for the sale and purchase of commodities. The stated ground for the petition was that the FIR was registered as an offshoot of a matrimonial dispute and that the parties have now settled the dispute by entering into a Settlement Agreement. The complainant woman also made a request to quash the FIR. The Delhi High Court noted the request of the woman to not pursue the proceedings, and observed, “[F]acts of the case show how big the heart of a woman is. She even after being humiliated at the hands of her husband is willing to forgive him and forget his conduct.” Given that the court could have quashed the FIR just on the basis of the settlement agreement, this observation was unwarranted. It only reinforces a benevolent sexist attitude that paints a positive view of traditional gender roles, where women are expected to be maternal and caring.¹⁴⁶

To be sure, the judiciary is not oblivious to the issue of sexism towards survivors of gender-based offenses. The Supreme Court in Aparna Bhat v. State of Madhya Pradesh (2021),¹⁴⁷ set down guidelines to ensure that bail conditions imposed by courts did not include compromise between the accused/perpetrator and the victim. Additionally, the Supreme Court asked all courts to be sensitive towards victims in cases of gender-based violence to avoid retraumatization during proceedings and arguments. This is a welcome judgment from the highest court in the country and needs to be incorporated by the judiciary in letter and spirit. Additionally, in August 2023, the Supreme Court of India released a Handbook on Combating Gender Stereotypes.¹⁴⁸ The handbook contains a glossary of gender-unjust terms and suggests alternative words or phrases which may be used while drafting pleadings as well as orders and judgments. It also identifies common stereotypes about women and demonstrates why they are inaccurate and how they may distort the application of the law.¹⁴⁹

Going forward, courts’ discussions on consent and the sexual agency of women need to be analyzed through a feminist lens. In certain cases, courts have been unable to acknowledge women’s sexual agency and have, instead, adopted a protectionist approach.¹⁵⁰ In others, courts have ignored multiple consents that may be involved in OGBV cases like NCIID. There needs to be an appreciation by the judiciary of the fact that privacy is often contextually implicated and that active consent faces challenges in light of social and gender power that vitiates free choice.¹⁵¹

3.2.3.6 Redressal from the court

If a criminal prosecution leads to conviction, the end result is either imprisonment and/or the imposition of a fine on the accused. While this meets the ends of justice in some sense, it is doubtful if it really redresses the harm caused to a survivor of OGBV if the offensive image or content, around which the case is centered, is still up on the internet and open to be shared with anyone. Many instances of OGBV occur on platforms of internet intermediaries, such as social media, which are in a position to remove the offensive content. In fact, Section 79 of the IT Act, as interpreted by the Supreme Court in Shreya Singhal v. Union of India (2015),¹⁵² empowers courts to issue directions to intermediaries to remove illegal content from their platform.¹⁵³ As per proviso 2 of Rule 3(1)(d) of the IT Rules, upon receipt of a court order to take down content, the intermediary is required to do so within 36 hours.¹⁵⁴ If it fails to comply with such an order, the safe harbor exemption available to intermediaries under Section 79(1) of the IT Act is forfeited, and the intermediary entity and its officers can be held liable for action as mandated by Section 85 of the IT Act.¹⁵⁵

IT for Change’s study found that courts recognized the role of social media platforms or relevant intermediaries and requested their cooperation to remove the offensive content in only a few cases.¹⁵⁶ In fact, orders to take down offensive content should not wait till the end of the trial, as is sometimes the case, since the continued presence of such content online during the trial period can cause significant harm to the complainant.¹⁵⁷ In a particular case from our study sample, the accused persons continued to repost and redirect the offending content from one website to another, and from one online platform to another during the course of the trial.¹⁵⁸ It is crucial, therefore, that courts issue interim orders directing the removal of such content while the litigation is still underway. Given the challenges of cross-functioning between the state, the intermediaries, including social media platforms and websites, and the court, the intermediaries should be included as parties in the trial to ease the process of effectively enforcing content takedown orders.¹⁵⁹ Currently, the intermediaries are not included as parties, thereby impeding the ability of complainants to get the illegal content removed from the internet.

What can the court do?

The court should apply its independent judicial mind to the police report and frame charges appropriate to the harm and rights violations suffered by the victim. Judges must avoid taking a protectionist approach and be open to creative applications of the IT Act and IPC provisions that emphasize women’s dignity, privacy, and autonomy. Further, Section 216 of CrPC empowers the court to alter or add any charge at any time before a judgment is pronounced. This provision may be used in an OGBV case to add an appropriate charge, even at a later stage, if it becomes evident that the original charges framed are not suitable to provide justice to the victim and address the harm suffered by her.
Courts must follow the guidelines laid down by the Supreme Court in Aparna Bhat v. State of Madhya Pradesh (2021)¹⁶⁰Aparna Bhat v. State of Madhya Pradesh, (2021) 4 SCR 479, at para 44. and the Handbook on Combating Gender Stereotypes¹⁶¹Handbook on Combating Gender Stereotypes. (2023). Supreme Court of India. https://main.sci.gov.in/pdf/LU/16082023_073106.pdf while dealing with sexual crimes. These guidelines include the direction that bail conditions and court orders should avoid relying on stereotypical and patriarchal notions about women and their place in society and must be strictly in accordance with the requirements of the CrPC.¹⁶²Aparna Bhat v. State of Madhya Pradesh, (2021) 4 SCR 479, at para 44. In other words, discussions about the dress, behavior, or past conduct or morals of the prosecutrix should not be a part of the verdict granting bail. The Supreme Court also directed that bail conditions should not mandate, require, or permit contact, compromise, or mediation between the accused and the victim.¹⁶³Aparna Bhat v. State of Madhya Pradesh, (2021) 4 SCR 479, at para 44. Instead, these conditions should seek to protect the complainant from any further harassment by the accused. Further, courts should customize bail orders and conditions to meet the unique requirements of OGBV cases, and the peculiarities of the internet, social media platforms, and technology/communication devices. Further, the guidelines laid down in the Aparna Bhatt case should prompt courts to be sensitive towards victims of gender-based violence cases to avoid retraumatization during the proceedings and arguments.¹⁶⁴Aparna Bhat v. State of Madhya Pradesh, (2021) 4 SCR 479, at para 44. Courts should base their decisions on the law and facts in evidence and not engage in gender stereotyping.¹⁶⁵ Aparna Bhat v. State of Madhya Pradesh, (2021) 4 SCR 479, at para 44. The same sensitivity should be displayed in examining the evidentiary value of the victim’s testimony. In this regard, the Supreme Court directed courts to steer clear of the following stereotypes:
- “Women are emotional and often overreact or dramatize events, hence it is necessary to corroborate their testimony;
- testimonial evidence provided by women who are sexually active may be suspected when assessing ‘consent’ in sexual offence cases.”¹⁶⁶
In light of the Supreme Court’s ruling in the Arjun Panditrao case,¹⁶⁷ courts should not dismiss secondary digital evidence if the prosecution is unable to obtain the certificate under Section 65B(4) of the Indian Evidence Act despite making the necessary efforts. Instead, it should exercise its powers under the CrPC to direct the concerned person to call for evidence and direct the production of the certificate. This can, at a preliminary level, prevent evidence from being dismissed in the first instance. It is necessary that courts enable the admission of digital evidence and recognize its challenges.

Where appropriate, courts should issue orders to relevant internet intermediaries to take down the offending content to prevent and mitigate harm from OGBV. If the content is prima facie found to be illegal, such takedown orders should be issued as soon as possible as interim orders to prevent the further circulation of the content online. Further, where required, courts should also make internet intermediaries parties to the case, for instance, when it is found that the algorithms of intermediaries made the offensive content viral, in order to provide an effective remedy to the victim.

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Information Technology (Intermediary Guidelines and Digital Media Ethics Code), 2021, Second proviso to Rule 3(1)(d).
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Aparna Bhat v. State of Madhya Pradesh, (2021) 4 SCR 479, at para 44.
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Access to Justice Issues in Cases of Online Gender-Based Violence

3.1 What does Access to Justice Mean?

3.1.1 Access to justice in cases of crimes against women

3.2 Access to Justice Issues in OGBV Cases

3.2.1 At the time of filing complaints

3.2.1.1 Hesitancy in filing complaints

Stigma and further harassment

Power imbalances

Fear of counterintuitive outcomes

3.2.1.2 Lack of support and knowledge gaps in filing complaints

Lack of access to knowledge, information, and rights

Problems with registration of complaints

Burden of legal costs and lack of financial and emotional support

What can the court do?

3.2.2 Investigation and collection of evidence

3.2.2.1 Collection of evidence

3.2.2.2 Evidence collection from intermediaries

3.2.2.3 Filing of charge sheet

3.2.3 Trial and judgment

3.2.3.1 Framing of charges

3.2.3.2 Bail conditions

3.2.3.3 Difficulty in proving guilt and evidentiary value of testimony

3.2.3.4 Admission of digital evidence

3.2.3.5 Stigma and patriarchy in the courtroom

3.2.3.6 Redressal from the court

What can the court do?

Footnotes

Typologies of Online Gender-Based Offenses in Law

Contours and Intersectionality