IRW Act, 1986

Halting abuse

Print edition : July 20, 2018

At a protest march against sexual harassment, in Kochi on January 20. Photo: Thulasi Kakkat

Protesting against sexual harassment and misogyny and asserting women’s right to public spaces, in Bhopal on January 21, 2017. Photo: A.M. FARUQUI

Maneka Gandhi, the Union Minister for Women and Child Development, at a conference in New Delhi on May 4. Photo: PTI

The government’s move to update an existing Act to ban indecent portrayal of women online is welcome given the rising incidence of harassment in recent years.

Keeping pace with the transformations in digital technology, the Indecent Representation of Women (Prohibition) Act, 1986 (IRWA), will likely be updated to ban indecent portrayal of women online. The Ministry of Women and Child Development recently said that it was ready to finalise the amendments in the Act. The United Progressive Alliance government first proposed changes in the 1986 Act and introduced a Bill in the Rajya Sabha in 2012.

Whether the new Act serves the interests of women or leads to their bodies and sexuality being controlled in the name of morality remains to be seen. Nevertheless, it is high time such a law was enacted, given the increased harassment of women online.

The past decade saw a spurt in trolling and abuse against women on social media. According to a poll commissioned by Amnesty Internation across eight countries, nearly a quarter of the women using the Internet (23 per cent of those surveyed) faced online abuse. The majority of the abuse was directed at women from marginal backgrounds or sexualities and politically vocal women, including journalists. From content that is sexist, racist and homophobic to belittling and humiliation, women across identities and affiliations experience violence on the Web.

In places such as Uttar Pradesh, online abuse became an extension of offline abuse, with gang-rape videos being sold in the marketplace for as little as Rs.50. In 2015, the anti-trafficking activist Sunitha Krishnan launched a #ShameTheRapist campaign online when she received graphic rape videos on WhatsApp. Many of these videos were 30 seconds to a few minutes long, recorded on mobile phone cameras and circulated via WhatsApp or used to intimidate the victim into silence and shame.

The same year, the social justice bench of the Supreme Court comprising Justices Madan Lokur and U.U. Lalit took cognisance of the circulation of rape videos online. The court set up a high-powered expert committee with representatives from the Central government, Google India, Yahoo India, Microsoft Corporation (India) and Facebook. It was to look for technological solutions to block offensive videos of rape and child pornography on the Internet, but no effective steps seem to have been taken in this regard.

In May this year, the Supreme Court levied a fine of Rs.1 lakh each on Yahoo, Facebook Ireland, Facebook India, Google India, Google Inc, Microsoft and WhatsApp for failing to respond to the court’s orders asking them to file details of the steps taken to block videos of sexual offences and child pornography. None of the companies complied with the court’s orders, irking the bench, which asked them to file their responses along with the fine.

Given the non-responsiveness of the tech firms to court orders, it is uncertain how or if they will comply with the new IRWA.

Whether the amended Act will tackle crimes involving child prostitution and rape videos is not clear as yet. However, the amendments will certainly widen the scope of the Act. Until now, only indecent representations in advertisements, publications, writings, paintings and figures in print were prohibited. With the proposed amendments, new forms of communication such as the Internet, multimedia messaging, cable television, over-the-top (OTT) services and applications such as Skype, Viber, WhatsApp, Chat On, Snapchat and Instagram will also be brought under the ambit of prohibition. The definition of distribution will include publishing, licensing and uploading digitally. The penalty for violation of the Act will be in line with that under the Information Technology Act, 2000. Penalties for various offences will be enhanced.

For representing women indecently, the punishment for the first offence has been increased to three years’ imprisonment from two years and a fine between Rs.50,000 and Rs.1 lakh from Rs.2,000. For subsequent offences, the term of imprisonment will be between two and seven years and the fine between Rs.1 lakh and Rs.5 lakh.

It is also proposed to set up a centralised authority under the National Commission of Women (NCW), to be headed by the Member Secretary, NCW, and with representatives from the Advertising Standards Council of India, the Press Council of India, the Ministry of Information and Broadcasting and one member with experience of working on women’s issues. Any complaints or grievances regarding any programme or advertisement can be made to the authority, which would be authorised to examine the broadcast or publication.

The IRWA Amendment Bill was introduced in the Rajya Sabha in December 2012 and was referred to the Parliamentary Standing Committee. On the basis of observations made by the committee and the NCW, the Ministry of Women and Child Development proposed amendments to the IRWA “keeping in mind the recent technological advancement in the field of communications such as social media platforms, over the top services, etc”, according to a Ministry communique.

 

Under the amended Act, the definition of indecent representation will be broadened as follows: “‘Indecent representation’ means (i) publication or distribution in any manner, of any material depicting women as a sexual object or which is lascivious or appeals to the prurient interests; or (ii) depiction, publication or distribution in any manner, of the figure of a woman, her form or body or any part thereof in such a way as to have the effect of being indecent or derogatory to or denigrating women or which is likely to deprave, corrupt or injure the public morality or morals.”

Focus of indecency

The focus of indecency continues to be on the woman’s body and lust arising out of it, implying that anything to do with sex is offensive. Innumerable instances from the past show how the IRWA was used to stifle women’s agency or creative expressions rather than serve the interests of women.

A criminal case was filed in March this year against the Malayalam magazine Grihalakshmi and the 27-year-old actor Gilu Joseph after the magazine published a picture of her breastfeeding a baby on its cover. The depiction was educative and aimed to remove the stigma against breastfeeding. The caption along with it said: “Mothers tell Kerala: Don’t stare, we want to breastfeed.” But it irked Vinod Matthew, an advocate, who filed a complaint under Sections 3 and 4 of the IRWA. The actor was trolled online and called a slut and prostitute. The Act should ideally have protected Gilu Joseph from online abuse but instead it ended up serving the purpose of people who did not get the message behind the breastfeeding campaign. In the past too, the models Milind Soman and Madhu Sapre faced similar charges for an advertisement. The editor of Anandabazar Patrika, Aveek Sarkar, faced charges in 1993 when Sportsworld magazine reproduced a nude photograph of former tennis player Boris Becker and his fiancee, Barbara Feltus. The accompanying article spoke out against racial discrimination in Germany and celebrated the love of Becker and Barbara, who were engaged at the time.

In 2014, the Supreme Court appreciated the message behind the photograph, and a two-judge bench of Justices K.S. Radhakrishnan and A.K. Sikri said that the picture of a nude/semi-nude woman could not be called obscene unless it aroused feelings or revealed overt sexual desire. They set aside criminal proceedings against all those charged. In 2006, non-bailable warrants were issued against the actors Reema Sen and Shilpa Shetty for posing in an obscene manner in a Tamil newspaper. The actor Sushmita Sen was charged for her comments on premarital sex but the case was dismissed. Again, in 2007, the advocate Arun Aggarwal filed complaints against Star TV, Star Movies, Channel V and 30 persons, including cable TV operators, for showing adult-rated films at midnight. After observing that the films under consideration “offensively invade and deprave public moral through overt sex”, the Delhi High Court dismissed the petitions.

These instances show how nudity per se was considered offensive. Indecency was confused with morality, and women became the targets of the law rather than its beneficiaries.

Increase in cybercrimes

On the other hand, women like Rana Ayyub continue to be abused online. A journalist and the author of Gujarat Files, which claims to expose the complicity of Prime Minister Narendra Modi and Bharatiya Janata Party president Amit Shah in the 2002 Gujarat riots, she has often faced online abuse. (Modi was then Gujarat’s Chief Minister and Shah a Minister in his government.) But what happened last month shocked even the most hardened media observers. A two-minute pornographic video was circulated with her face morphed on to that of another woman, leaving her traumatised.

Rana Ayyub recounted in an article that “...my social media timelines and notifications were filled with screenshots of the video. Some commented on how prostitution was my forte. I went into a frenzy blocking them, but they were everywhere, on my Instagram, Facebook and Twitter accounts. Some commenters asked what I charged for sex, others described my body. Many claiming to be nationalist Hindus sent pictures of themselves naked. I started getting screenshots from friends of a Twitter account created in my name. I was doxxed. A tweet with my name, picture, phone number and address was being circulated. ‘I am available’, it said. Someone sent my father a screenshot of the video. He was silent on the phone while I cried. After a while he spoke in a sad, heavy voice. ‘I am surprised this did not happen earlier,’ he said. ‘They want to break you. The choice is yours.’”

According to the National Crime Records Bureau data, crimes against women have increased in recent years, especially cases of rape. Cybercrimes registered a sharp increase of 6.3 per cent to 12,317 in 2016 from 11,592 in 2015. Cases in the crimes against women category reported an increase of 2.9 per cent in 2016 over 2015. Rape cases reported an increase of 12.4 per cent to 38,947 in 2016 from 34,651 in 2015.

Madhya Pradesh and Uttar Pradesh reported the highest incidence of rape with 4,882 (12.5 per cent) and 4,816 (12.4 per cent) respectively, followed by Maharashtra with 4,189 (10.7 per cent) during 2016. Uttar Pradesh reported 14.5 per cent (49,262) of the total cases of crimes against women followed by West Bengal (9.6 per cent) with 32,513 cases during 2016.

Delhi reported the highest crime rate (160.4) compared with the national average rate of 55.2. Cybercrime went up by 6.3 per cent in 2016 (12,317) over 2015 (11,592). Uttar Pradesh reported the largest number of cases (2,639 or 21.4 per cent), followed by Maharashtra with 2,380 (19.3 per cent) and Karnataka with 1,101(8.9 per cent).

The success of the amended IRWA will lie in how it interprets “indecency”.

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