Women’s protection Ordinance clashes with ITA 2008

Government of India has promulgated an ordinance titled “The Criminal Law (Amendment) Ordinance, 2013” following the public outrage on the the recent incident in which a girl was gangraped in a Delhi bus. The Ordinance has initiated some provisions to strengthen the laws against sexual assault on women including acid attacks, rape and rape leading to death or reduction of the victim to vegetable status etc.

Apart from some of the provisions that directly relate to physical society offences, there are at least two provisions which directly conflict with the provisions of ITA 2008.

One of the conflicting provisions is “voyeurism” which conflcits with Section 66E of ITA 2008 and the other is on “Stalking” which conflicts with Section 66A.

The amended IPC section 354C states as follows.

Section 354C: voyeurism:

“Whoever watches, or captures the image of, a woman engaging in a private act in circumstances where she would usually have the expectation of not being observed either by the perpetrator or by any other person at the behest of the perpetrator shall be punished on first conviction with imprisonment of either description for a term which shall not be less than one year, but which may extend to three years. and shall also be liable to fine, and be punished on a second or subsequent conviction, with imprisonment of either description for a term which shall not be less than three years, but which may extend to seven years, and shall also be liable to fine.

Explanation 1.- for the purpose of this section, “private act” includes an act carried out in a place which. in the circumstances,would reasonably be expected to provide privacy, and where the victim’s genitals, buttocks or breasts are exposed or covered only in underwear,or the victim is using a lavatory or the person is doing a sexual act that is not of a kind ordinarily done in public.

Explanation 2.- Where the victim consents to the capture of images or any act, but not to their dissemination to third persons and where such image or act is disseminated, such dissemination shall be considered an offence under this section.”

Section 66E of ITA 2008 on the other hand states

“Whoever, intentionally or knowingly captures, publishes or transmits the image of a private area of any person without his or her consent, under circumstances violating the privacy of that person, shall be punished with imprisonment which may extend to three years or with fine not exceeding two lakh rupees, or with both”

For the first time offender Section 66E has a harsher punishment where as for the second time offender, IPC 354C will be harsher. It is not clear however if a person can be punished for the first time under ITA 2008 and for the second time under IPC. Also section 66E addresses capture as well as publishing and transmission of a picture of a private part of a person. If however the publishing and transmission involves content which falls under Section 67, 67A or 67B (Obscenity) then there would be harsher punishments under ITA 2008.

In the IPC section however, the offence relates to “watching and capturing” a “Private act” and the punishment may be as little as one year in the first instance. “Watching a private act” falls only under IPC, where as “Capturing” falls under both IPC and ITA2008 “Publishing” and “Transmission” falls only under ITA 2008.

Section 354D of the proposed ordinance states as under:

354D: Stalking:

(1) Whoever follows a person and contacts or attempts to contact such person to foster personal interaction repeatedly, despite a clear indication of disinterest by such person, or whoever monitors the use by a person of the internet, email or any other form of electronic communication, or watches or spies on a person in a manner that results in a fear of violence or serious alarm or distress in the mind of such person, or interferes with the mental peace of such person, commits the offence of stalking:

Provided that the course of conduct will not amount to stalking if the person who pursued it shows
(i)that it was pursued for the purpose of preventing or detecting crime and the person accused of stalking had been entrusted with the responsibility of prevention and detection of crime by the state; or
(ii) that it was pursued under any law or to comply with any condition or requirement imposed by any person under any law. or
(iii) that in the particular circumstances the pursuit of the course of conduct was reasonable.

(2) Whoever commits the offence of stalking shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to three years, and shall also be liable to fine.’

Section 66A has been extensively discussed on this site (Refer : Misconceptions about Section 66A). It applies to “Persistent” sending of emails/messages to create annoyance which is the effect of “Stalking”. The punishment is 3 years.

Section 354 D overlaps with Section 66A since it specifically refers to “Use of internet or email”. The punishment is between one to three years.

If the ordinance had been carefully drafted the overlapping of IPC with ITA 2008 could have been avoided. It may be noted that IPC ordinance is issued from the Ministry of Home Affairs and ITA 2008 is managed by Ministry of Communications and Information Technology. Unfortunately the two ministries perhaps had no consultation process which could have avoided the conflicts.

Naavi

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About Vijayashankar Na

Naavi is a veteran Cyber Law specialist in India and is presently working from Bangalore as an Information Assurance Consultant. Pioneered concepts such as ITA 2008 compliance, Naavi is also the founder of Cyber Law College, a virtual Cyber Law Education institution. He now has been focusing on the projects such as Secure Digital India and Cyber Insurance
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