Bullying

Bullying may be characterised as an intentional act by a
perpetrator which, though may not amount to a criminal offence,
causes pain or anguish or suffering to the victim, either
physically or emotionally. The victim is usually at the mercy of
the perpetrator and the bully uses tactics such as name-calling or
intimidation or social ostracization to achieve his or her goal.
Bullying may take place in both public and private spaces. It
traumatises the victim and may result in permanent emotional
damage.

Traditional Approach to Bullying

The traditional approach to bullying in educational institutions
and workplaces has been to brush it aside, with excuses such as
‘boys will be boys’ or ‘tough men don’t
complain’, though it is possible that bullying which involves
intimidation or the threat of violence could trigger the offence of
assault¹ or battery.²

Examples of bullying which do not tantamount to a traditional
criminal offence are, classmates calling a school boy
‘fat’ or ‘stupid’ or an employee being
shouted at by a senior or superior officer. When classmates
threaten or rough up another in the school yard or when a
subordinate is threatened with the imminent application of force or
is slapped, an offence is committed, though such actions usually go
unpunished.

As more and more women enter workplaces, women too become
targets for bullying in such workplaces. At times, bullying takes
the form of sexual harassment.

Cyber Bullying

Cyber bullying refers to bullying or harassment of any kind
inflicted through electronic or communication devices such as
computers, mobile phones, laptops, and usually involve text
messages, phone calls, e-mails, instant messengers, social media
platforms, or chat rooms. It ranges from the posting of hurtful
words, derogatory comments, fake information on public forums or
blogs to threats to rape or kill.

The most frequently used definition of cyber bullying is
‘an aggressive, intentional act or behaviour that is
carried out by a group or an individual, using electronic forms of
contact, repeatedly and overtime against a victim who cannot easily
defend him or herself.‘³

The Anonymous Bully

Bullying traditionally involved a stronger person asserting his
or her superiority over a weaker person to his or her advantage.
With the advent of the internet, it has become possible for a
person with neither superior physical strength nor financial clout
to bully another. In many cases, the bully uses a fake identity and
the anonymity offered by the internet to stay away from the
clutches of the victim and the law.

Laws against Cyber Bullying

The Indian Penal Code, 1860
(“IPC”), neither defines bullying nor
punishes it as an offence. However, various provisions of the IPC
and the Information Technology Act, 2000 (“IT
Act”) can be used to fight cyber bullies.

Cyber Stalking of Women

The National Commission for Women
(“NCW”) in its legal module on
‘Gender Sensitization and Legal Awareness Programme’⁴ defines cyber stalking as following:

‘Stalkers are strengthened
by the anonymity the internet offers. He may be on the other side
of the earth, or a next-door neighbour or a near relative!’
It involves following a person’s movements across the
Internet by posting messages (sometimes threatening) on the
bulletin boards frequented by the victim, entering the chatrooms
frequented by the victim, constantly bombarding the victim with
emails, etc. In general, the stalker intends to cause emotional
distress and has no legitimate purpose to his
communications’

Cyber Stalking is an extension of the physical form of stalking,
committed over the internet, through e-mail or other electronic
communication devices and can take different forms including
slander, defamation and threats.

Cyber stalking includes, inter alia, the following:

• Sending threatening or obscene messages, posts or emails;




• Stealing a person’s identity online and circulating false
  information with the intent to humiliate or harass;




• Tracing the location of a person through illegal means;




• Uploading obscene pictures;




• Posting derogatory remarks online with the intent to
  harass.

The Press release on ‘Digital Exploitation of
Children’, by the Ministry of Women and Child Development
states that the sections 354A and 354D of the IPC provides
punishment for cyber bullying and cyber stalking against women.

Cyber-stalking of women was recognised as an offence, subsequent
to the insertion of section 354D in the IPC through the Criminal
Law (Amendment) Act, 2013.

Section 354D of IPC defines stalking as following:

‘Any man who

1) follows a woman and contacts,
or attempts to contact such woman to foster personal interaction
repeatedly despite a clear indication of disinterest by such woman;
or

2) monitors the use by a woman
of the internet, email or any other form of electronic
communication, commits the offence of stalking: (emphasis
supplied)

Provided that such conduct shall
not amount to stalking if the man who pursued it proves
that

i) it was pursued for the purpose
of preventing or detecting crime and the man accused of stalking
had been entrusted with the responsibility of prevention and
detection of crime by the state

ii) it was pursued under any law
or to comply with any condition or requirement imposed by any
person under any law

iii) in particular circumstances
such conduct was reasonable and justified.’

The language of Section 354D of IPC makes it clear that the
section penalises both the offence of offline and online stalking,
without discriminating on the basis of presence or absence of the
‘cyber’ component. However, sub-section (2) fails to
clarify the manner in which the victim can be said to be
‘monitored’ or ‘watched’ or what
constitutes such acts.

In the case of State of West Bengal v. Animesh Boxi⁵ , the accused took possession of some
private and obscene photographs of the victim by hacking into her
phone, blackmailed her by threatening to upload the stolen pictures
and videos on the internet and subsequently uploaded her private
pictures and intimate videos onto an obscene website.

The District Court of West Bengal convicted the accused under
sections 354A, 354C, 354D, 509 of IPC and sections 66C and 66E of
the IT Act. The court held that the offence u/s 354D of the IPC is
proved as the victim was not only stalked online but also suffered
from ‘virtual rape’ every time a user of the openly
accessible global website viewed the video. The court commented
that deterrence was one of the prime considerations for convicting
the accused and an inadequate sentence would do more harm than
justice, as it would undermine public confidence in the seriousness
of the issue.

Cyber Stalking of Men

At present, if a man is a victim of cyber stalking, Section 354D
will not apply. However, it is possible that other provisions of
the IPC or the IT Act may apply. For example, let’s assume
that Mr. ABC, the manager of a reputed venture capital fund, is
being stalked online by XYZ, who may be a male or a female. XYZ had
initially sent a polite email to ABC’s work email address,
seeking an appointment, so that he could make a pitch for an
investment by ABC’s venture capital fund into his struggling
start-up. A PDF document attached to the email gave relevant
details of XYZ’s start-up. ABC replied to politely decline
the meeting and the investment opportunity, which he felt
wasn’t worth pursuing. Subsequently, XYZ’s emails
started to get angrier and nastier. XYZ has now started posting
some derogatory remarks regarding ABC on various online venture
capital forums. He has also sent a few emails to ABC in which he
explicitly threatened to harm ABC.

The posting of derogatory remarks regarding ABC on various
online venture capital forums would tantamount to defamation, as
defined under Section 499 of the IPC. Section 500 of the IPC
provides that whoever defames another shall be punished with simple
imprisonment for a term which may extend to two years, or with
fine, or with both.

XYZ is also likely to be found guilty of criminal intimidation
under Section 503 of the IPC on account of having made
threats to ABC through emails. Section 506 of the IPC provides that
whoever commits, the offence of criminal intimidation shall be
punished with imprison­ment of either description for a term
which may extend to two years, or with fine, or with both. If the
threat was to, inter alia, cause death or grievous hurt, it shall
be punished with imprison­ment of either description for a term
which may extend to seven years, or with fine, or with both. If the
emails sent by XYZ to ABC were anonymous, section 507 of the IPC
provides that XYZ shall be punished with imprisonment of either
description for a term which may extend to two years, in addition
to the punishment prescribed under section 506 of the IPC.

Online Sexual Harassment

In India, it used to be common for sexual harassment to be
called ‘eve-teasing’, which downplayed the severity of
the offence. However, the concerted efforts of Indian courts, the
legislature, the Law Commission of India, non-governmental
organisations and women’s activists have led to a radical
change in the treatment of sexual harassment of women. The
enactment of the Sexual Harassment of Women at Workplace
(Prevention, Prohibition and Redressal) Act 2013
(“POSH Act“) has conveyed a stern
message that any form of sexual harassment of women in the
workplace shall not be tolerated. Further, there have been a number
of milestone amendments to the Criminal Procedure Code 1973
(“CrPC”), IPC and the Indian Evidence
Act which facilitate the prosecution of sexual harassment.

With effect from February 3, 2013, Section 354A was inserted in
the IPC to penalise the offence of sexual harassment. Section 354A
states that the act of making physical contact and advances
involving unwelcome and explicit sexual overtures, or
demanding/requesting for sexual favours, or showing pornography, or
making sexually coloured remarks amounts to the offence of sexual
harassment, shall be punishable with 3 (three) years of rigorous
imprisonment and/or a fine.

Online sexual harassment includes, inter alia, using an
electronic medium to make calls repeatedly, send vulgar SMSes,
emails or make vulgar conversation or pressure a woman to engage in
friendship or to establish sexual relations. However, Section 354A
of the IPC requires physical contact or physical advances and hence
harassment through an electronic medium will fall outside of the
purview of Section 354A of the IPC.

Overlap between Cyber Stalking and Online Sexual
Harassment

Cyber stalking could amount to online sexual harassment if it
has sexual overtones. However, a stalker is usually an anonymous
person unlike a sexual harasser who is unlikely to hide his or her
identity.

Fake Facebook Profiles

Creation of a Facebook profile in someone else’s name is
relatively easy and such a profile makes it possible to show the
victim in a false light. There have been instances where vulgar or
obscene photos of a victim have been linked to such fake Facebook
profile, causing the victim extreme mental anguish.

When the creation of a fake Facebook profile is accompanied by
the uploading of vulgar or obscene photos of the victim on to such
profile, Section 354A (Sexual harassment and punishment for
sexual harassment), Section 354D (Stalking), Section
499 read with Section 500 (Defamation and Punishment for
defamation), Section 507 (Criminal intimidation by an
anonymous communication) and Section 509 (Word, gesture or
act intended to insult the modesty of a woman) of IPC may
apply.

In the case of Sazzadur Rahman v. The State of Assam and
Ors.⁶, the accused created a fake Facebook
profile of a 15-year-old victim. In the fake profile, the accused
mentioned the victim’s name, uploaded obscene pictures, and
posted some derogatory remarks against her, which caused her to be
mentally unstable and hampered her academic growth. The trial court
rejected the application made by the accused under Section 311 of
CrPC. Thereafter, a petition under section 482 read with sections
401/397 of CrPC was filed before the Gauhati High court for
quashing the order of the trial court. The Gauhati High Court,
while dismissing the application, held that discretion of the trial
Court, which, ex facie, has been exercised judiciously on the basis
of relevant materials, cannot be interfered with either in
revisional jurisdiction or under Section 482 CrPC.

In the case of Shubham Bansal v. The State (Govt of NCT
Delhi) ⁷, the accused created a false Facebook
account in the name of Nidhi Taneja and included the telephone
number of the victim, which caused her annoyance, insult, and
harassment and, therefore an FIR was registered against the
accused. The victim further moved another application under Section
173 (8) of CrPC requesting further investigation by the
investigating officer on account of which the matter was remanded
to the Metropolitan Magistrate for consideration. Thereafter, an
application was made by the accused for dropping the proceedings
against him under Section 66A of the IT Act and Section 509 of
IPC.

The Delhi High court while refusing to entertain the application
of the accused, ordered that the investigating officer refrain from
submitting his final report till the Magistrate issued directions
on the pending application filed by the victim. The honourable
court noted that the alternative course available to the
investigating officer was to file a report based on the
investigation carried out until then, reserving the right to file a
supplementary challan/report in response to the pending application
made by the victim under Section 173 (8) of CrPC seeking further
investigation.

In the case of Jitender Singh Grewal v. The State of West
Bengal⁸, the accused created a fake Facebook
account of the victim and uploaded her obscene pictures to such
fake Facebook account. After the authorities charge sheeted the
accused under Sections 354A/354D/500/509/507 of IPC and Section 67A
of the IT Act, he filed a bail application. The trial court
rejected the bail application of the accused and the Calcutta High
court upheld the trial court’s decision.

In the case of Prakhar Sharma v. The State of Madhya
Pradesh⁹, the accused created a fake Facebook
account of the victim, posted some vulgar messages along with the
photos of the victim downloaded from her original Facebook account.
The accused was charged under Sections 66 (c), 67 and 67(a) of the
IT Act. When the accused applied for bail, it was denied by the
Madhya Pradesh High Court.

In the case of Hareesh v. State of Kerala¹⁰, the applicant created a fake Facebook
profile, posted morphed obscene photographs of the victim online,
posted her mobile number under the said obscene post in order to
enable strangers to contact her. Thereafter, an anticipatory bail
application was made by the applicant apprehending arrest in
respect of offences punishable under Section 354(D) of IPC and
Sections 67 and 67E of the IT Act. The Kerala High court denied the
application for anticipatory bail on the ground that materials on
record affirmed the involvement of the applicant in the offences
and it would not be proper for the court to interfere with the
investigation.

Bullying Inter-se School Mates

H, a twelve-year-old school boy was increasingly withdrawn and
introverted. He looked worried most of the time but refused to
divulge his troubles to his parents who were aware that he spent an
extra-ordinary amount of after-school time on his I-Pad. One night,
after H went to bed, his parents accessed his I-Pad and found that
he was on various chat groups and was being bullied online by his
classmates. The bullying involved name calling and derogatory
remarks regarding his clothes and his grades.

In such scenario, the remedies available to H’s parents
are as following:

• Take prompt steps to show support to H;




• File a complaint reporting the online bullying to the school
  authorities. The complaint shall be looked into by the Anti
  Bullying Committee required to be formed in every school in
  accordance with the ‘CBSE Guidelines for prevention of
  Bullying and Ragging in Schools’;




• Report the online bullying to the nearest police station, who
  shall refer the matter to the cyber-crime cell for investigation.
  Thereafter, the cyber-crime cell shall report the matter to the
  Juvenile Justice Board, which will conduct an inquiry and deal with
  the incident as per the provisions of the Juvenile Justice (Care
  and Protection of Children) Act, 2000.

Footnotes

1. S. 351, Indian Penal Code, 1860
defines assault as: Whoever makes any gesture, or any preparation
intending or knowing it to be likely that such gesture or
preparation will cause any person present to apprehend that he who
makes that gesture or preparation is about to use criminal force to
that person, is said to commit an assault.

Explanation—Mere words do not
amount to an assault. But the words which a person uses may give to
his gestures or preparation such a meaning as may make those
gestures or preparations amount to an assault.]

2. S. 350, Indian Penal Code, 1860
defines battery or criminal force as : Whoever intentionally uses
force to any person, without that person’s consent, in order to
the committing of any offence, or intending by the use of such
force to cause, or knowing it to be likely that by the use of such
force he will cause injury, fear or annoyance to the person to whom
the force is used, is said to use criminal force to that other.

3. Smith, P. K., del Barrio, C., &
Tokunaga, R. S. (2013). Definitions of bullying and
cyberbullying: How useful are the terms? In S. Bauman, D.
Cross, & J. Walker (Eds.), Routledge monographs in mental
health. Principles of cyberbullying research: Definitions,
measures, and methodology (p. 26–40). Routledge/Taylor
& Francis Group.

4. Ministry of Women and Child
development. National Commission for Women. 2019. Legal module
on ‘Gender Sensitization and Legal Awareness
Programme‘.
http://ncw.nic.in/notice/legal-module-gender-sensitization-and-legal-awareness-programme-collaboration-kendriya.

5. State of West Bengal v. Animesh
Boxi , GR No. 1587 of 2017.

6. Sazzadur Rahman v. The State of
Assam and Ors., Criminal Petition No. 654 of 2019.

7. Shubham Bansal v. The State (Govt
of Nct Delhi), Criminal Miscellaneous Petition No. 2024 of
2018.

8. Jitender Singh Grewal v. The State
of West Bengal, Criminal Miscellaneous Petition No. 7252 of
2018.

9. Prakhar Sharma v. The State of
Madhya Pradesh, MCRC No. 377 of 2018.

10. Hareesh v. State of Kerala,
Bail Application No. 4858 of 2018.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.