What Indian women should know about fighting cyber harassment in light of Shubham Mishra's arrest
A lawyer talks us through essential legal procedures
On July 11, 2020, Shubham Mishra posted a video on Instagram, threatening stand-up comedian Agrima Joshua with rape. The cyber harassment stemmed from his ‘sentiments being hurt’ after Joshua commented on the statue of Chhatrapati Shivaji Maharaj during a stand-up act, a year ago.
“It will have solar cells which will power all of Maharashtra…It will also have GPS tracker…” said Joshua in the video.
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Mishra’s video fuelled a social media trial that successfully petitioned for Mishra’s immediate arrest by the Vadodra police. The incident underlined the harassment women are subjected to, both on the streets and in the comfort of their homes.
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But on a positive note, there’s hope for justice even if the perpetrator is hiding behind a screen miles away. “Shubham Mishra’s arrest has been a groundbreaking and first-of-its-kind arrest that will set the precedent for more such cases associated with cyber harassment,” says Prateik Parija, founding partner, Probus Legal.
Parija, who has dealt with cases of cyber crime and cyber harassment, answers some frequently asked questions pertaining to cyber harassment.
All you need to know about cyber harassment
What constitutes cyber harassment?
It is easy to confuse trolling with cyber harassment. In case of trolling, there is no threat of harm or injury towards the person.
There is no set definition for what constitutes harassment as per the Indian law. But anything on the internet that can be categorised as a threat or intent to harm or injure, directed towards a person, constitutes cyber harassment.
When should I get the police involved?
If a threat poses imminent danger to you, get the police involved.
If the harasser is persistent and more people start to join the bandwagon, you are being targeted by a group and should turn to the police.
Death threats, rape threats or any call for grievous injury should not be neglected. According to Parija “Threats should be taken seriously because the internet is a fairly unknown territory we are venturing into with respect to the law, so one must be cautious.”
How can I file a complaint?
If you have decided to get the police involved, file an FIR in the form of a written complaint and attach the evidence.
An FIR is usually filed when a criminal activity has taken place or when there is a very high chance of a criminal act taking place.
Under Section 383 of the Indian Penal Code (IPC), anyone who has been put under grave or imminent danger of injury, harm or death can file a case of extortion against the perpetrator
In case of women, sections pertaining to stalking or outraging the modesty of women can come into play when filing an FIR.
What amounts to evidence in a case of cyber harassment?
Screenshots of threatening messages or warnings, screenshots of the social media profile used to get in touch with you, recordings in case of a call, printouts in case of email and comments, all amount to evidence.
Evidence is anything that backs your claim.
In a lot of cyber harassment cases, a non-cognisable complaint (NC) can also act as evidence.
To file an NC, you have to record your statement at the police station. They then make a copy of your statement and give it to you, which acts as verified proof when filing for cyber harassment.
An NC has no value as far as the police is concerned because they will never investigate it, but it aids your case if you choose to file an FIR in the future. It becomes a formal acknowledgement and documentation of your experience. It also acts as evidence in case of any further criminality.
An NC is the best option if you feel threatened but don’t have enough proof to file for extortion.
What can I do if the police refuses to file an FIR?
As per the law, whenever you go to the police, they are supposed to take down your complaint. But often, that doesn’t happen.
In such cases, the legal procedure is to write a letter of reminder to the Deputy Commissioner of Police (DCP) of the respective area and then go to court under Section 156 (3) of The Code of Criminal Procedure (CRPC), which allows the court to direct the police officers to file a formal complaint.
Should I engage with the cyber harasser?
If the person seems to be rational and logical then you can attempt to talk it out with them. However, if someone is threatening you or posing some sort of danger to your safety, they clearly are not thinking rationally. In such cases, you should refrain.
“I usually advise people not to engage,” says Parija.
Can I file a digital complaint against cyber harassment?
Police is a state subject, which means that availability of digital portals to file complaints varies from one state to another.
However, a standard way of filing a complaint if you can’t go physically, is through post.
Can I file a restraining order against my harasser?
There is no concept of restraining orders in India, except in matrimonial disputes. You can file an FIR because stalking amounts to imminent danger.
Is social media trial an effective way to deal with a cyber harasser?
A social media trial in no way adds to or takes away from the case, for the simple reason that there are so many faceless people and very little accountability.
It becomes influential when it trickles down to mainstream media and begins to affect public opinion which, in turn, may play a part in affecting the court’s judgement.
What is the maximum punishment that someone convicted in a case of cyber harassment can be subjected to?
Cyber bullying or cyber harassment complaints due to a lack of specific cyber laws are bracketed as extortion complaints and use provisions from the IPC and Information Technology Act (IT Act).
Under Section 383 of the IPC, which deals with punishment for extortion, the maximum punishment entails three years in prison plus a fine.
But if one is involved in criminal intimidation (which includes threatening another with any injury to his person, reputation or property), under Section 506 of the IPC, one can be subjected to a maximum of seven years in prison with fine.
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