Shivang Tripathi
Advocate, Allahabad High Court
The term “Bullying”, in itself, denotes a genus, whereas “Cyber Bullying” forms its specie. Before elaborating upon the latter, we should look into the terminological relevance and essence of the inherent psyche behind “Bullying”. It basically means a voluntary ‘act’ intended to harm the victim (physically or mentally) or to create a sense of shock/fear in the victim’s mind. So, there are just two stakeholders when we talk about bullying in a general sense, one is the “Bully” and the other is the “victim”. Psychologically speaking, all of this evolves from the basic human instinct to “feel superior” and to “outclass” others, in terms of “social and political status”, “one’s own worth”, “human growth” and of course the “fight for survival and well-being”. There is absolutely no blanket definition of “bullying” because it may be uniform in terms of effect but it vastly varies in terms of its modes/means.
Every social structure entails a specific societal hierarchy which is like a “ladder of competition” where human beings are found in a constant struggle to out-perform others and this “boxing ring” is governed by certain inherent norms. These norms are pretty much dependent upon various factors such as “Effectiveness and policies of State Control”, “legal infrastructure”, “law of the land” and of course “societal perceptions”. Keeping aside the genus of “bullying” as an act, the point of focus, for now, is its specie called as “Cyber Bullying”. The only difference between the two is the tool used by the aggressor/bully. Use of a computer resource or any digital platform to carry out the act of bullying is called as cyberbullying.
“Cyber Bullying” comes in various hues, be it sending obscene/vulgar messages, stalking by means of calls and messages, posting any kind of humiliating content of the victim, amongst others.
Before we try to analyze the constitutional and legal framework with respect to all of this controversy, we should get some idea about “Roasting and its prevalence in India and abroad”. A ‘roast’ is a form of humor in which a specific individual, who is treated as the guest of honor, is subjected to jokes and criticism, with an intention to entertain the audience. Such events are intended to honor a specific individual in a unique way. In addition to jokes and insult comedy, such events may also involve genuine praise and tributes. The implication is that the “roastee” is able to take the jokes in good humor and not as serious criticism or insult. The individual is surrounded by friends, fans, and well-wishers, who can receive some of the same treatment as well during the course of the evening. The party and presentation itself are both referred to as a “roast”. The host of the event is called the “roast-master”. Anyone who is mocked in such a way is said to have been “roasted”. However, the thin line that distinguishes “roasting” from “cyberbullying”, and the keystone of comedy stand-ups, that intentionally or otherwise, enter the realm of “roasting”, comprise the essentials of “consent” and “familiarity”. If these essentials are missing, then it encroaches upon the taboo of cyberbullying and may attract penal provisions.
The Indian Comedy Production Group “All India Bakchod” organized the live show AIB Knockout in January 2015 featuring Arjun Kapoor and Ranveer Singh with Karan Johar as the roastmaster. The programme caused a controversy for allegedly featuring distasteful, sexist, offending and humiliating content. Videos of the event were removed from YouTube.
In the AIB Roast controversy, once an FIR was registered against roughly 14 persons, including the people from Bollywood, it gave birth to the actual societal perspective with respect to Indian legal theory and societal structure when it comes to bearing with the concept of roasting, as a part of humour. Interestingly, the FIR herein was registered under the following sections:-
- Section 294 of the Indian Penal Code 1860 (hereinafter referred to as “IPC”) – Whoever, to the annoyance of others—
(a) does any obscene act in any public place, or
(b) sings, recites or utters any obscene song, ballad or words, in or near any public place, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both.
- Section 509 of IPC – Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both.
- Section 34- When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
- 120B of IPC- Whoever is a party to a criminal conspiracy to commit an offence punishable with death, [imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.
- Section 67 of the Information Technology Act,2000 (hereinafter referred as “IT Act”) that says …whoever publishes or transmits or causes to be published or transmitted in the electronic form, any material which is lascivious or appeals to the prurient interest or…tends to deprave and corrupt persons…shall be punished.”
This brings us to analysis of the legal infrastructure prevalent in India when it comes to tackling with such offences at large. Further, certain other provisions cater to such “online menace”, for example :-
- Section 507 of IPC- Criminal intimidation by an anonymous communication.—Whoever commits the offence of criminal intimidation by an anonymous communication, or having taken precaution to conceal the name or abode of the person from whom the threat comes, shall be punished with imprisonment of either description for a term which may extend to two years, in addition to the punishment provided for the offence by the last preceding section.
- Section 66E of IT Act-Punishment for violation of privacy. -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. Explanation. -For the purposes of this section-
(a) “transmit” means to electronically send a visual image with the intent that it be viewed by a person or persons;
(b) “capture”, with respect to an image, means to videotape, photograph, film or record by any means;
(c) “private area” means the naked or undergarment clad genitals, pubic area, buttocks or female breast;
(d) “publishes” means reproduction in the printed or electronic form and making it available for public; e) “under circumstances violating privacy” means circumstances in which a person can have a reasonable expectation that;-
(i) he or she could disrobe in privacy, without being concerned that an image of his private area was being captured; or
(ii) any part of his or her private area would not be visible to the public, regardless of whether that person is in a public or private place.
- Section 67A of IT Act: Publishing or transmitting of material containing sexually explicit act, etc. in electronic form.
- Section 499 of IPC: Defamation
- Section 292A of IPC: Printing, etc. of grossly indecent or scurrilous matter or matter intended for blackmail
- Section 354A of IPC: Making sexually colored remarks, guilty of the offence of sexual harassment
- Section 354D of IPC: Stalking
Article 19(1)(a) of the Indian Constitution vis-à-vis “Obscenity”
Since “Roasting”, as a concept, gains strength from the celebrated right to freedom of expression enshrined under Article 19(1)(a), so in order to qualify this as something at par with “Bullying”, we need to delve into the ambit and scope of terms like “obscenity”, “public order”, “morality” etc. Right to freedom of expression comes with a set of reasonable restrictions that “State” can impose on any of the grounds enumerated under Article 19(2).
The words “obscene” and “obscenity” have not been defined clearly in the Indian Penal Code. The Hon’ble Apex Court defined obscenity for the first time in the case of Ranjit D. Udeshi v. The State of Maharashtra (1965 AIR 881). In this case the “Hicklin test” was applied and given due regard by the court to judge obscenity, wherein a publication can be judged for obscenity based on the isolated part of the work considered out of the context. However, the test of obscenity must agree with the freedom of speech and expression guaranteed under our Constitution. Since this case, the Hicklin test has been continuously liberalized and applied, until the recent case of Aveek Sarkar, wherein Hon’ble Supreme Court while dealing with the issue of obscenity adopted the Roth test, which states that only those sex-related materials which had the tendency of exciting lustful thoughts were found to be obscene and the same has to be judged from the point of view of an average person by applying contemporary community standards.
The basis of “Roasting” is insulting the other person with an aim to degrade and patronize him/her, which doesn’t always conform to the parameters of “morality”. However, although done in light humor and directed to be offensive only towards the one who is being roasted, the act of “roasting” does have to comply with the community standards of “public order”. Comments and remarks that could instigate violence and / or disturb public order should not be allowed on a social platform, being strictly sanctioned with penalties.
This is an era where we are all under the aegis of “Social Media” and “Social Networking”. Conceptually, this humongous growth can be attributed to ‘feasibility’ and ‘dimensions of available audience’. However, this is an unregulated territory, and there is a gaping blind-spot that allows certain forbidden activities to go undetected, which shall certainly proliferate with the advancement and availability of the internet and social media, respectively. Either of the aggrieved individuals from the recent controversy, could have approached the appropriate authorities to lodge complaints, albeit the enabling penal provisions may be missing from our legal framework. The existing penal laws were laid down for much serious and heinous offences, and may not necessarily be proportional to the simpler offences that are committed more often than not on the social media and other public platforms. This dynamic vacuum needs to be filled with regulatory laws on “cyber bullying” and “roasting”, which shall remove the ambiguity surrounding such “new age offences.” Whilst framing any policy upon prospective legislations, the State is required to put in place a proper public survey so as to gather the exact societal perspective in order to formulate a stable and effective legislation.
‘Viewer discretion’ is the most essential aspect when it comes to perception of any online content. It is solely upon the viewer to decide whether to surf the content or leave. This is where the “consent” conundrum reflects itself. Posting any content online entails in itself all the consequent comments, criticism, ridicule and sentimental reactions and in the same manner, a viewer is not obligated to view all the content posted online. This is where certain “impermeable filters” like with respect to viewers age, preferences, country and community etc might be taken into consideration. Having said that, it needs no special knowledge to decode the inherent danger behind such filters in terms of viewer outrage, but this is where a thoroughly researched policy is warranted from the sides of all the concerned stakeholders.
The current legal framework is apparently inefficient and incomprehensive when it comes to dealing with the increasing cases of “cyberbullying”, “roasting” and other online offenses, as there is the absence of corresponding laws on the subject. The need of the hour is to enact such legislation that would make the social media a safer place for the present and future generations, and all we can do is sincerely hope for a political will in the country to bring about the desired changes, taking into consideration all the temporal and demographical parameters.
