Drawing a line between 'vulgarity' and lack of consent: Interview with Point of View

Image source: Digital storytelling workshop organised by Point of View.

Bishakha Datta and Smita Vanniyar talk to GenderIT about their research on Section 67 of the Information Technology Act, 2000.

Obscenity, vulgarity, modesty, culture and tradition: these are the biggest topics of discussion in India. And has been for much of its post-colonial existence¹. Even as women every day fight to get their rapists brought to justice, and a list of sexual predators in academic circles in the country has split the women’s movement into two (or more), with one older, established group blaming the women for not following due process, while the other believes it is time men suffer some of the consequences of sexual assault².

There’s very little in the way of justice for sexual assault and violence against women. Meanwhile spreading internet and cheaper phones have brought both freedom of expression and censorship. It is here that India’s old taboos and new laws converge, and this is what researchers from Mumbai based Point of View have been researching.

Point of View co-founded and managed by Bishakha Datta, works to amplify the voices of women, especially queer, disabled women. PoV, as it is called, has also worked at the intersection of internet, digital technologies, and sexual expression and identity.

Bishakha Datta, together with Smita Vanniyar, Rachel Bali, Neha Mathews, Jasmine Lovely George, Zahra Adamjee, and Zarah Udwadia, undertook an extensive research to understand how law constructs obscenity online, and to identify specific instances of non-consensual sharing of intimate images, and the various ways in it is punished or acquitted.

The first stage of the research has been published under the title Guavas and Genitals, and looks at press and media reports of 99 individual cases filed over three years under the country’s IT Act of 2000, specifically, Section 67 of the act.

Section 67 reads:

"Punishment for publishing or transmitting obscene material in electronic form. -

Or, in the researcher’s own words, Sec 67 was "a provision that carried a colonial mindset into the digital age by using the same legal language."

Bishakha Datta, the lead researcher, explains why they began this research:

"Part of the reason is that I read the physical newspapers. And every second day I come across some case or other, for the last 3-4 years, which is either related to non consensual intimate images, or rape videos. For instance, today I took a screenshot of a news report from Vishakapattnam, where a woman is being raped on the road, and everybody else started taking videos - passersby - but nobody helped her. So, I have been continuously looking, on a day to day basis, not just online but everyday newspapers, and found that there were so many cases of this. And some of the ways the media was reporting these - I felt uncomfortable - they are almost always classified as obscene, and not as violations of consent. So that’s what actually started this off."

And every second day I come across some case or other, for the last 3-4 years, which is either related to non consensual intimate images, or rape videos. For instance, today I took a screenshot of a news report from Vishakapattnam, where a woman is being raped on the road, and everybody else started taking videos - passersby - but nobody helped her.

In their report, Bishakha, Smita and the other researchers go into this further. They say:

Through the study, we explore one overriding question:

How does Indian law construct digital obscenity?

To answer these questions, the researchers performed a deep trawl of the National Crime Records Bureau’s reports for the years beginning 2002 through 2015. They then supplemented this with a survey of all available literature pertaining to Sec 67 and its Indian Penal Code counterpart - Sec 292, together with study of related documents, court evidence, petitions, and the like, sourced from specialist law portal Indian Kanoon. Finally, the team also studied press and media reports of Sec 67, and interviewed experts to fill in any gaps and add contextual detail.

It wasn’t easy.

The team realised that they had to re-jig their methods at various points, and find ways around hurdles.

As Bishakha says,

"One of the biggest thing is that there’s very little reliable data. We looked at the National Crime Records data, to get a sense of how many cases are filed under Sec 67, and is that a small number of cases when compared to the overall IT Act. And there we found that the second highest number of cases filed under the IT act are under Sec 67..."

"But the biggest issue comes after that: normally when you do legal research, you look at judgements. But here the issue was there were no judgements! Very, very few. For example, the first case for which there is a judgement under the IT act, in Maharashtra, was in 2012. The judgement came in 2015, although the case was filed way back. So only now in 2017 the judgements are starting to come out. Our biggest issue was what kind of alternative methodologies we can use, if there are no judgements."

One of the biggest thing is that there’s very little reliable data. We looked at the National Crime Records data, to get a sense of how many cases are filed under Sec 67, and is that a small number of cases when compared to the overall IT Act. And there we found that the second highest number of cases filed under the IT act are under Sec 67...

The team then spoke to legal experts, delved into Indian Kanoon (a database of current judgments online) , where they could read and analyse documents such as bail applications, interim judgements, and the like, for the years 2014 and 2015. A specialist legal researcher undertook this part of the study, and arrived at the next point of complication.

"Even though this was an unconventional method for us, we went ahead with the help of a legal researcher,Jasmine Lovely George. NCRB gave us one data point: there was a lot of cases filed under Sec 67. But through research we have another data point: what are the sections with which Sec 67 is commonly used. It was the second piece in the jigsaw puzzle. For instance we found that it was used often with Sec 376 of IPC - which deals with rape.

Just by seeing those patterns - which repeat themselves, you can actually understand without knowing the specific case, what the crime is," says Bishakha.

"Then what we saw was that at each point we were getting more detail than at the previous point. We realised we cannot stop here, even though there are no or very few judgements, and they don’t tell the whole story. So we looked at what the media was reporting. we did a systematic research of English media, and then we were able to find the 99 cases that became part of the study. "

However, Smita and Bishakha did come across other obstacles. The team kept asking themselves if this was all available data, or was something being held back?

As Smita says,

One of the challenges we faced actually was that the data in NCRB was extremely confusing. On top of that, the format for reporting changed from 2014 onwards. They classified it further, for example, under section 67 they began dividing it up into further sub sections - 67 A, 67B and so on, which wasn’t the case earlier. They also included profiles and such. We could tell that certain data was missing from the NCRB records itself, so we filed an RTI petition for it particularly."

The Right To Information Act - shortened in popular usage to RTI - allows individual citizens to request specific information from the state and all its bodies and agencies. RTI is a powerful tool in the hands of researchers. However, it doesn’t always work. As Smita found out.

"As of now there has been no reply."

Smita continues: "Another thing was that, there was also no information on how exactly the cases are classified for the NCRB data itself, or how the data is recorded, whether there is any criteria. For instance if a case has multiple sections listed under it, there was no information about it - as a data - which section it goes under. That is, there is no concrete information about the record - based on severity of crime, the length of sentence under each law, and so on. So for that, again, I called up the NCRB office in Delhi, and spoke to them about how the data is collected."

After much struggle, the researchers were able to fill the blanks.

"Now we actually have - for all those 99 cases - little descriptions in detail for each case. The research has become a bit of an obsession", says Bishakha. "What you see in the report is what we have so far, but we will continue to flesh it out. It will keep going on for another year or so."

Now we actually have - for all those 99 cases - little descriptions in detail for each case. The research has become a bit of an obsession

What will the next part of the research contain? Will there be more data? Or a deeper dive into existing data?

"It will be a deeper dive. What we have done here, is more broad. But for many of the things, we will have to take a deeper dive."

There are some methodological issues with the research, and we ran into them in the initial phase. We may not be able to go into neighbourhoods and police stations and ask for information. So we will need to find five or six cases - either judgements or whatever - and really try to understand it in greater depth. Again we don’t have any funding for it, this is just a bee in our bonnet."

The bee in PoV’s bonnet is also throwing up important questions. Is the NCRB directly, and the government indirectly, following an agenda in collecting the data? What are the ethical implications of such data?

One point that the researchers have especially critiqued, is the profiling of the accused. Since 2014, the NCRB classifies and profiles offenders under Sec 67, into various categories. Some of them - such as the Sexual Freak, Persons With Psychological Disorders, raise troubling questions.

Smita says,

"Firstly, one of the main problems with this, in-spite of the number of categories increasing in 2014, the highest category is still ‘Others’. So the question is, what exactly are you using the profiling for? Even if you think it is useful, why classify under others?"

"When you are classifying based on terms like Sexual Freaks, Persons With Psychological Disorder, in a government document - that is, this will be used by the government as an authorised data set - I feel like that this is showing the prejudices of the government. Is that ethical? Secondly, there is no concrete criteria for what cases, who falls under each of these profiles. They don’t have a set of criteria for what qualifies someone as a sex freak, or who qualifies as a person with psychological disorder. These terms are judgments in themselves, and then using these terms in a government data set is potentially dangerous. Especially because this can be reused and rehashed for whatever other purposes after this."

When you are classifying based on terms like Sexual Freaks, Persons With Psychological Disorder, in a government document - that is, this will be used by the government as an authorised data set - I feel like that this is showing the prejudices of the government. Is that ethical? Secondly, there is no concrete criteria for what cases, who falls under each of these profiles. They don’t have a set of criteria for what qualifies someone as a sex freak, or who qualifies as a person with psychological disorder.

Bishakha agrees, and adds:

"First of all, what is the purpose of gathering this kind of data? Secondly, frankly what good can come out of this kind of collection, where you basically have categories like this. What do you mean by person with psychological disorders? Or political person?"

"I’ve already seen one paper written about it, and critiqued it, where they have taken the data set at face value, and said that in 2015 the NCRB showed that so many people with "x" attribute (such as political persons) have committed crimes. This is a really arbitrary classification. What is a political person? What is religion person? What is a person with psychological disorder? There is no definition - like the word obscenity - it is built on sand and mud. Also, categories like Student, neighbours etc: why would you put a category called student into a table on crime? Do you want to say so many students committed crimes? It is not reliable data!"

"We also spoke to someone who is an expert in cyber crime and part of the police, and he said that not all crimes are put under the NCRB. That is also a very political thing, because some states want to show they have fewer crimes, and they don’t want to classify so much. Data can also be used for political purposes.."

"But this kind of thing - the arbitrary classification - seems really really dangerous in stigmatising people. Think about sexual freak, for instance. With a law making body, or with the NCRB, which is anyway not comfortable with sexual identities to begin with, who could get put into this category, and what kind of sexual practices and behaviour could be labelled freakish - is very easy to imagine. It is all built on bias, which is the central issue with the profiling."

To further analyse the 99 cases, the PoV researchers tabulated each case under 7 categories (Presented in the section called Bodies of Evidence III- in their report). These are:

1. Circulation of vulgar, lewd, obscene words or images


2. Circulation of non-consensual intimate images


3. Child pornography images


4. Religious or political speech


5. Porn or online sex sites


6. Words related to sex, including sexually-explicit words


7. Other, including sexist comments


 

However, earlier in the report the team challenge the idea of obscenity, and establish the extraordinary journey of that word in the Indian context, and its colonial, puritanical underpinnings. The team also explain that terms like lewd, vulgar, and obscene, are not clearly defined, and is left to the interpretation of the law maker and the judge. Do the researchers see a conflict in first challenging notions of obscenity, and then using those very terms in their analysis?

Bishakha says,

"I think this is a fantastic question. And here’s the thing, because this is legal research, we felt a little boxed in by the law. That is the only way I can explain it. Because we are trying to study a section, what we are actually trying to get at is, even with a limited definition of obscene - which is also very subjective and which we challenged earlier, and will continue to challenge through the report, given that there are certain other provisions that are not there - for instance when you receive an image, which is non consensual - like a dick-pic or something of the sort, there is no place in the law to put it."

"So, because we are using legal categories in a sense, we are putting it there. But now perhaps we will actually look at this and see if we can add to it, or qualify it. But yes, that’s the main reason. There is no other place to put it."

"In an ideal situation, I would say very few cases should be under obscenity, right? They should be under other categories. That’s not how the police will look at it, the police will look at it as non-consensual and obscene. But the way we will look at it, the primary harm is that it is non-consensual, so why not put it there. Then what does it really serve to show, to put it under obscene."

"To close that, at the end of the chapter, we say that we found some cases where it was used appropriately, not appropriately, and questionably. There again, the question is what do we mean by saying appropriately. When we say appropriately, are we accepting that little definition of obscenity as appropriate."

"But now that this point has been raised, we can look at it again and see how we can deal with it, in a more sophisticated manner."

In an ideal situation, I would say very few cases should be under obscenity. That’s not how the police will look at it, the police will look at it as non-consensual and obscene. But the way we will look at it, the primary harm is that it is non-consensual.

Similar issues also exist with Classification #6 - "Words related to sex, sexually explicit words." How does one differentiate between sexually explicit, and lewd/vulgar?

Smita has an answer:

"When we were dividing it up during the secondary analysis, we put any case which has instances of harassment - online harassment where they were sending images etc. - under obscenity. The consensual ones where the consent for exchange of images was evident, we didn’t put under obscenity but under sexually explicit. We weren’t very sure of using that term - obscenity - during secondary analysis."

"Which is why we say obscenity has a degree of criminality, which sexually explicit doesn’t. Cases have not been classified under both - it is either one or the other."

Bishakha expands on this. She says:

Bishakha also says, "To be honest, the table has always bothered me. It has been sitting in the back of my head. I’ve asked myself - so yes the table is a good - quick and dirty - classification for us, but even then, with the information we have, does it make sense for us. "What will happen then perhaps unfortunately, is the APC version will have this, and our own version that will go on our website will have a slightly different take."

The research report ends with a section on recommendations. The overriding point in this is that law must understand consent, and that consent must be built into not just the IT act but other sections of the law too.

Smita expands on it. She says,

"66E already mentions that you cannot click or transmit images of private parts without consent. What we are saying, to expand it more, to clarify bearer content itself."

"Because the law currently speaks only about images of your private parts clicked and transmitted without consent. But we’re saying - and especially why we put it under recommendations - is a lot of problems are also where you receive images - dick pic for example, or sexually harassing messages. We feel like we should look at the consent of the receiver as well. So we are saying we should expand the meaning of Sec 66 E to not only look at the consent for your body, but also the consent of the receiver. We see a lot of these cases can go under that.

"As for other laws, I don’t think any other law mentions consent or looks at consent in itself. Laws are not rights based, right? The person is not put in the centre of the law, it is more based on morality. We say sex is bad, so don’t do this. We don’t say, this person’s permission hasn’t been taken."

We feel like we should look at the consent of the receiver as well. So we are saying we should expand the meaning of Sec 66 E to not only look at the consent for your body, but also the consent of the receiver.

Bishakha adds,

"The only other idea which needs to be captured, which I am not sure what section it will go to, but somewhere laws will have to say that consensually exchanging images or whatever, should not fall under obscenity. In the US, for instance, teenage sexting is considered an offense regardless of consent. So how to build that into the law? We are not lawyers, so we don’t know. But now that we have launched this research, maybe we can sit down and talk about it, the idea needs to be captured."

"Further conversations are necessary. As the team realised during the research, lawyers and experts aren’t entirely sure about the IT Act, and Section 67. Primarily because this is a new law, and there’s very little to study."

Further conversations are necessary. As the team realised during the research, lawyers and experts aren’t entirely sure about the IT Act, and Section 67. Primarily because this is a new law, and there’s very little to study.