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India: Possible Amendment of IT Law to Address Cybercrimes Against Women

(Aug. 21, 2014) It was reported on August 15, 2014, that the Indian government has taken preliminary steps to introduce amendments to India’s information technology law that would specifically treat cybercrimes against women. The move comes in the wake of reports of men recording rapes of women and girls with their smartphones and using the recordings to make the victims keep silent. (Rama Lakshmi, Video Recordings of Gang Rapes on Rise in India in Effort to Shame, Silence the Victim, WASHINGTON POST (Aug. 14, 2014); Three More Gang Rapes, One of a 7-year-Old Girl: Uttar Pradesh Is India’s Shame, AMERICAN BAZAAR (June 25, 2014).)

The Information Technology Act 2000, as amended in 2008, provides for a punishment of imprisonment of up to three years or a fine of up to two lakh rupees (about US$3,300), or both, for anyone who “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 … .” An explanatory section defines the terms used in the above article, e.g., “capture,” “transmit,” and “private area.” (The Information Technology (Amendment) Act, 2008 (ITAA) (Feb. 5, 2009), THE GAZETTE OF INDIA, No. 13 (Feb. 5, 2009), § 32 [inserting art. 66E in the principal Act]; Information Technology Act 2000, No. 21 (June 9, 2000), Department of Electronics & Information Technology.)

There is also a prescription against the publication or transmission, or the causing to be published or transmitted, in electronic form of “any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.” (ITAA, amending § 67 of the principal Act.) The punishment for offenders on their first conviction is imprisonment for a term of up to five years and a fine of up to five lakh rupees; a second or subsequent conviction will incur a punishment of imprisonment for up to five years (the amendment reduced the term of imprisonment of up to ten years found in the principal Act) and a fine of up to ten lakh rupees. (Id.)

If the prurient materials contain sexually explicit acts or conduct, the punishment will be up to five years’ imprisonment and a fine of up to ten lakh rupees; a punishment of seven years’ imprisonment and a fine of up to ten lakh rupees may be imposed in the event of a second or subsequent conviction. (ITAA, § 32, inserting § 67A in the principal Act.) A separate provision is applicable to similar crimes involving the depiction of persons under 18 years of age in electronic form; the same possible punishments and fines may apply upon conviction. (Id., inserting § 67B in the principal Act.)

A “communication device” is defined as “cell phones, personal digital assistance or combination of both or any other device used to communicate, send or transmit any text, video, audio or image.” (Id. § 4B, inserting clause (ha) in § 2(h) of the principal Act.)

However, there is no provision in either the original Act or its 2008 amendment that explicitly addresses the capture in electronic form of violent acts such as rape.