Analysis | Bhagyalakshmi and friends versus cyber bullies: What's wrong with law and police

Analysis | Bhagyalakshmi and friends versus cyber bullies: What's wrong with law and police
Bhagyalakshmi. Design: Onmanorama

It is still not clear whether Bhagyalakshmi, Diya Sana and Sreelakshmi Arakkal have managed to scare the hell out of cyber bullies but what their thrashing of 'Dr' Vijay P Nair has certainly done is expose a largely unnoticed fact that victims of social media smear campaigns should be seriously worried about: there is virtually no law to deal with cyber gossip vendors.

To begin with, the police did not act on the complaint. And when they finally did, they could invoke only three weak, bailable provisions of the law, and all of them unconnected to offences committed in the cyberspace. Indian Penal Code section 354 A(1) – sexual harassment and sexually coloured remarks; IPC section 509 – insulting the modesty of a woman, and section 120 (O) of Kerala Police Act – a public nuisance.

Even if these sections could potentially throw a fairly strong grip, the accused have often found them too easy to shrug off.

It's a molester's world

Analysis | Bhagyalakshmi and friends versus cyber bullies: What's wrong with law and police
Design: Onmanorama

Recently, when vulgar content was posted on social media against Manorama News anchor and chief news producer Nisha Purushothaman, almost the same three sections were invoked against the accused. In Nisha's case, instead of 354 A(1) it was 354 D (stalking). Two persons arrested in the case walked free in no time and were given a grand reception by the local CPM unit in Chavara, Kollam.

The triumph of the violators in Nisha's case is not an exception. It is the norm.

Take for instance the case filed by Diya Sana, one of the three women who had barged into Vijay P Nair's room on September 26. Barely a month ago, Sana had filed a complaint with the City Cyber Cell against a man who kept posting derogatory comments about her on Facebook.

The accused has not appeared before the police but even then, by the police's own admission, the case will be closed. “The accused excused himself from personal appearance on the grounds of COVID-19 but he has emailed us a written explanation. After reading his version, we found the existing provisions were not good enough to book him,” a top police source said on condition of anonymity.

So by the time she joined Bhagyalakshmi and Sreelakshmi to give a foul-mouthed YouTuber the shock of his life, Sana had already realised the futility of legal action.

Dubbing artiste Bhagyalakshmi, activists assault YouTuber for video insulting women

Fact is, the police have not been able to bring to justice even those cyber mercenaries who had posted vulgar comments about Veena Vijayan, Chief Minister Pinarayi Vijayan's daughter. Another case was registered after false and politically damaging information was spread online about health minister KK Shailaja. This, too, has reached nowhere.

IPC not cyberworthy

“The provisions of IPC, which were drawn up for crimes in the real world, can turn out to be too inadequate to deal with crimes committed in cyberspace,” said J Sandhya, a human rights lawyer and one of the persons who had filed a complaint against Vijay P Nair's sleazy YouTube content. “The IPC sections can be easily re-interpreted in favour of the cyberbully. That is why we have been clamouring for provisions within the IT (Information Technology) Act to take on such crimes,” she added.

Either realising this or to show greater intent, the police later clamped two more sections on Vijay P Nair, this time under the IT Act; sections 67 and 67A.

Wrong medicine for perversion

Analysis | Bhagyalakshmi and friends versus cyber bullies: What's wrong with law and police
Design: Onmanorama

Both these deal with sexually explicit content, which lawyers and policemen Onmanorama talked to said could not be applied in Vijay P Nair's case as he had not published any sexually explicit pictures or videos.

“It is doubtful whether these sections will stand legal scrutiny. We are just giving it a try,” a top police official said. “There is no harm in experimenting. It is not like a doctor trying to treat COVID-19 with the drug for chickenpox, which can be fatal. Here, even if the experiment fails, the result would only be the same as not trying. The perpetrator will go free,” the officer said.

But five years ago, there was a medicine for cyber harassment in the IT Act: Section 66A.

Misuse and death of 66A

This section was struck down by the Supreme Court on March 24, 2015, in the Shreya Singhal vs Union of India case. Then, this was hailed as the victory of free speech.

Here is what the section said: "Any person who sends by any means of a computer resource any information that is grossly offensive or has a menacing character; or any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult shall be punishable with imprisonment for a term which may extend to three years and with fine."

This section was also bailable but still all the lies and obscenities that Vijay P Nair and others of his kind gleefully hurled from the obscurity of the cyberspace would have come under the radar of this section.

66A but had to be killed because it was found there was no limit to the interpretations that those in power could come up with for the term "grossly offensive".

It was such an outrageous interpretation of the section that led to the arrest of two girls in Thane, Maharashtra, and forced a law student named Shreya Singhal to file a Public Interest Litigation. One of the girls put up a Facebook post questioning the shutdown in Mumbai following Shiv Sena leader Bal Thackeray's death. The other liked it. The Maharashtra government found both "grossly offensive".

Cyber complacency in police

"66A was a section that should have gone but we should have made up for the gap in law,” said lawyer and activist Harish Vasudevan. He had filed an RTI query to know whether the Kerala police had asked the government to plug this huge legal hole in dealing with cybercrimes. The answer was no.

After section 66A was scrapped, the police seem to have taken it easy. “Now, whenever such a complaint is received in the Cyber Cell, the complainant is told to either file a defamation suit in the court or to take the complaint to an ordinary police station where a case could be registered under IPC sections,” a top police official said.

During the last five years, the Cyber Cell had been receiving 3,000 to 5,000 complaints annually. “In nearly 70 per cent of the cases there will not be much progress,” the official said, and added: “Under cyber law we can take a case only if it involves sexually explicit content, child pornography and material that compromises national security.”

Birth of lady vigilantes

It was this combination of apathy and helplessness on the part of the police that eventually led to three women taking law into their own hands.

There were others, too, who had complained about Vijay P Nair's YouTube rants. “The day before this man was made to apologise live, I too had forwarded a complaint to the DGP and the Hi-Tech Cell. I found it highly offensive to womanhood,” advocate Sandhya said.

“The Hi-Tech Cell replied in 10 minutes asking me to take the complaint to the jurisdiction concerned. I wrote back asking what prevented them from doing so and also said that I would be writing to the DGP about their curt response. Soon I got a reply saying they themselves will forward the complaint to the City Cyber Cell," Sandhya said.

The Cyber Cell, however, has still not got back to her.

The comments posted here/below/in the given space are not on behalf of Onmanorama. The person posting the comment will be in sole ownership of its responsibility. According to the central government's IT rules, obscene or offensive statement made against a person, religion, community or nation is a punishable offense, and legal action would be taken against people who indulge in such activities.