INTRODUCTION

This modern world is mostly engaged in the information technology with internet and mobile
phones. Information technology has become widened and has become the axis of today's global
and technology development. The world of internet provides all the required information to
every user. With the numerous advancement of internet, the crime using internet has also
widened its roots in all directions. The cyber-crimes pose a great threat to individuals. Though
there are various types of Cybercrimes, cyber stalking is the Magna Carta to all such
cybercrimes.
The word "stalking" means "pursuing stealthily". It is the use of the Internet or other electronic
means to stalk or harass a person. The utilization of technology allows stalkers to harass their
target from any part of the world. In this paper we try to explore the Cyber-crimes and the online
insecurity and vulnerabilities against women in the way of cyber stalking. While Cyber Stalking
affects both men and women women are disproportionately targets, especially of age group of
16-35. The paper attempts to discuss the modes of cybercrimes, categories of cyber stalkers,
psychology of cyber stalkers, motives of cyber stalkers and the nature victims.
This 21stcentury fulfilled by the information technology and the usage of the modern
technologies is increased. Information technology widened its usage throughout the world and
it's become the axis of today's global and technology development. With the numerous usage of
the internet, the crimes also increased. Today most of the crimes are the cyber crimes. The
crimes are mostly happened against women. 90% cyber crime victims are the women.

Cyber stalking in one of the most important cyber crime. Stalking is mostly happened against the
women. Cyber stalking is nothing but online harassment or threatening the victim for sexual
purposes or misuse them. Why it is happened against the women? Why they are victimized?
Whether they don't have any right or liberty? Then what about the constitutional rights?
In this paper we are discussing about the cyber stalking and how it is affect the victims life and
what are the measures taken by the government to regulate the cyber stalking. We are discussed
about the violations of women right in the cyber space. First part of the paper is discussing about
the cyber stalking and why it is happened and how it is happening. The second part will leads the
recent cases and some important cases of cyber stalking and it elaborately speaks about how
women are victimized and how their rights are violated. The third part discuss about what are the
measures taken by the government and legal recognition of cyber stalking and the suggestions
also included.

DEFINITIONS FOR CYBER STALKING

Cyber Stalking is an extension of physical form of stalking, which is committed over the online
medium with the use of information Technology. In cyber stalking the internet, e-mail, chat
rooms etc. are used to stalk another person.
Bocij, Griffiths and McFarlane defines cyber stalking as "a group of behaviour in which an
individual, group of individuals or organization, uses information and communications
technology to harass one or more individuals. Such behaviour may include, but are not limited
to, the transmission of threats and false accusations, identity theft, data theft, damage to data or
equipment, computer monitoring, the solicitation of minors for sexual purposes and
confrontation".
According to Baer, "Cyber stalking in particular is composed of words alone and therefore stands
more distinctly as apart as a crime of accumulation"
Brenner defines as "in a sense, cyber stalking and cyber harassment are lineal descendants of the
obscene or annoying telephone call offenses that were created roughly a century ago, to address
harms resulting from the misuse of a nineteenth century technology"

Ellisonand Akdeniz(1998) had construed the term cyber stalking as online harassment, which
may include various digitally harassing behaviors, including sending junk mails, computer
viruses, impersonating the victim, etc.

It may be noted that legally cyber stalking recognized as an offence in early 1990's. Stalking was
criminalized by Michigan in 1993 through Michigan criminal code.[2]
Cyber stalking refers computer oriented harassment. The term interchangeably used as online
harassment or online abuse. A perpetrator or cyber stalker does not give direct physical threat to
the victim but giving online threat or giving verbal intimidation. It is a continuous function in the
cyber space.

The Wikipedia defines cyber stalking, where the Internet or other electronic means to stalk or
harass an individual, a group of individuals, or an organization. It include the making of false
accusations or statements of fact (as in defamation), monitoring, making threats, identity theft,
damage to data or equipment, the solicitation of minors for sex, or gathering information that
may be used to harass. Stalking is a continuous process, consisting of a series of actions, each of
which may be entirely legal in itself.
The definition of Cyber stalking is not universally acceptable as it varies place to place.
According to Professor Lamber Royakkers - “Cyber stalking is the repeatedly harassing or
threatening of an individual via the internet or other electronic means of communication. A cyber
stalker is someone with amorous and/or sexual motives who constantly harasses someone else
electronically: via the bulletin board, chats box, email, spam, fax, buzzer or voice-mail. Stalking
generally involves the constant harassment or threatening of someone else, following a person,
appearing at someone’s house or workplace, making harassing phone calls, leaving written
messages or objects, or vandalizing someone’s property. Because the stalking activities are so
diverse and have to be seen in their connection it is difficult to give a precise description of
stalking.”

CONCEPT OF STALKING
Cyber Stalking basically is behavior wherein an individual willfully and repeatedly engages in a
knowing course of harassing conduct directed at another person which reasonably and seriously
alarms, torments, or terrorizes that person. This is one of the most talked about internet crimes in
the modern world. Cyber stalking involves following a person's movements across the Internet
by posting messages (sometimes threatening) on the bulletin boards frequented by the victim,
entering the chat-rooms frequented by the victim, constantly bombarding the victim with emails
etc. Cyber Stalking usually occurs with women, who are stalked by men, or children who are
stalked by adult predators or pedophiles’. Cyber stalkers target and harass their victims via
websites, chat rooms, discussion forums, open publishing websites and email.

The motivation of stalkers may be considered less than four reasons,

Sexual harassment,
Obsession for love,
Revenge and hate,
Ego and power trips.

Cyber stalking doesn’t not involve any physical contact yet stalking through the internet has
found favor among the offenders certain advantages available like, ease of communication
access to personal information and anonymity.
As far as cyber stalking is concerned, the offender has the advantage that he can sit anywhere in
the world and harass the victim by posting certain derogatory comment or post comments on
common discussion boards or put the mobile number of the victim and his email address on
certain social sites which prompt the other users to send messages or phone calls to the victim in
misconceived notion. The internet has wide reach, the way we communicate online, the personal
data of individual and other information is easily accessed by the offenders through the internet
medium, and this makes the individual vulnerable to the offence such as cyber stalking.
Today internet become the integral part of each other life be it personal or professional life. The
ease of communication in today’s world made it easier for the offenders or person who seeks to
take revenge may use this medium to malign the victim by threatening and harassing by sending
offensive mails. The fact that cyber stalking does not involve physical contact may create the
misperception that it is more benign than physical stalking. This is not necessarily true. As the
Internet becomes an ever more integral part of our personal and professional lives, stalkers can
take advantage of the ease of communications as well as increased access to personal
information. Whereas a potential stalker may be unwilling or unable to confront a victim in
person or on the telephone, he or she may have little hesitation sending harassing or threatening
electronic communications to a victim. As with physical stalking, online harassment and threats
may be a prelude to a more serious behavior, including physical violence.
Stalking has become a problem to women and children on a larger part in comparison to men.
Women are threatened, vandalized, assaulted when it comes to real world but the same things
happen when cyber stalking takes place. Obscenity also adds up with the, threatens and
harassment. No doubt men also become the prey of the same but its lower when it comes to
females. Children also undergo the same trauma by adult predators and pedophiles. The victim is
normally a person who is less thorough regarding internet services and its applications. The
stalker is generally a person who is a paranoid with no self-esteem. But the traits differ from one
stalker to another. Some harass to seek revenge or some do so for their own pleasure. While
some just to do it for playing a mischief.
Cyber stalking vs. offline stalking

1. Cyber stalking is online threat and there is no direct relationship between the victim and
cyberstalked. Offline stalking is direct physical threat to the victim and there is some relationship
between the victim and the stalker.
2. Cyber stalking is universal. If a Russian or a Canadian can stalk an Indian women or men.
Offline stalking is particular.
3. No prior clear identity about the cyber stalker. Clear identification about the offline stalker.
4. Direct physical threat in offline stalking. Cyber stalking is posting a nude or seminude photo
in the internet and using obscene language and verbal intimidation.
5. Enforcement of law is easier in offline stalking. Cyber stalking sometimes requires extradition

But now a day's cyber stalking crimes is more than offline stalking. Because finding of the
perpetrator is not easier. America is the first country mostly affected by the stalkers.
2,00,000 people are real stalkers in America, roughly 1 in 1250 persons.90% of the victims are
women and 95% of stalkers are men.
NATURE OF CYBER STALKING
There are myriad ways of committing cyber stalking which can be resorted to by the
perpetrators. Computer stalking is one of the very popular means by which the cyber stalker
exploits the internet and the windows operating system in order to assume control over the
computer of the user. The cyber stalker can communicate directly with the user as soon as the
user computer connects to the internet and assume control of the user’s computer. An example of
this kind of cyber stalking was the case of a woman who received a message stating ‘I’m going
to get you’. The cyber stalker then opened the woman’s CD-ROM drive in order to prove he had
control of her computer. Keystroke logging makes the recording of every keystroke possible and
viewing the computer desktop in real time.
 E-mail account of the user may also be used as a tool for cyber stalking. Access to an e-mail
account of an innocent user may be gained by the hacker and that address may be used to send
messages that may be threatening or offensive. Some may send electronic viruses that can infect
the victim’s files.
A person’s mailbox may be filled with thousands of unwanted messages in order to make the
account useless by the harasser. It is known as mail bombing. Also a cyber stalker may indulge
in spamming. Online stalkers may post insulting messages on electronic bulletin boards signed
with the e-mail address of the person being harassed or statements about the victim to start
rumors about him through the bulletin board system which is basically a local computer that can
be connected directly with a modem and allows users to leave messages in group forums to be
read at a later time.
Many cyber stalking cases begin from arguments that can take place in chat rooms or news
groups. While chatting, participants type line messages directly to the computer screens of other
participants. Chat-line users may capture, store and transmit these communications to others
outside the chat service. Same is the case with the message which is posted to a public
newsgroup as it is also available for anyone to view, copy and store and such public messages
can be accessed by anyone at any time even years after the message was originally written which
can be misused by stalkers. Cyber stalker may indulge in flaming wherein he may engage in live
chat abuse of the user.

KINDS FOR CYBER STALKING

There are three ways in which cyber stalking is conducted i.e.
1. stalking by E-mail - where the offender directly sends e-mail to the victim to threaten her or
to harass her. It is the most common form of stalking in the modern world. The most common is
sending hate, obscene, pornographic material and threatening mail to the victim.
2. Stalking through Internet – this is global form of cyber stalking. In this the offender doesn’t
invade the private space of the victim but harasses her through the global medium publically.
The offender through the internet medium post the phone numbers and email address of the
victim on porn sites and put morphed photos of the victim on cyber space and threaten them.
This is the serious nature of cyber stalking where the stalker chases all the activity of victim on
the net and posted false information about her on the websites.

3. Stalking through Computer - In this form the offender is technocrat and he can take control
of the computer of the victim as soon as the computer starts operating. In this the stalker gets
control of the victims computer address and gets control over it. This form of cyber stalking
requires high degree of computer knowledge to get access to the targets computer and the option
available to the victim is to disconnect the computer and abandon the current internet address.
The term stalking is not new to the world, in the physical space it existed for many centuries. The
stalking in the physical world is done by the former friends, employees, or the person who wants
to force his will over the target are the examples of stalkers. But after the advent of cyberspace,
the reach of the stalker is widened, he can reach to any part of the world and threaten and harass
the target. It is not necessary now to disclose his identity, most of the stalkers are the dejected
lover’s, ex-boyfriends, colleagues, who failed to satisfy their desire and wants to harass the
victim. Most stalkers are man and most victims are women. The common reason behind the
cyber stalking is rejection in love or one sided love, harassment, revenge and showoff by the
offender.

Following are the methods used by the cyber stalker to target the victim:-
1. The stalker if he is a associates of the victim then he can gather all the information about the
victim easily and if he is stranger then he collect all the information through internet from
various social network sites and collect all and every information about the victim from Date of
birth, place of residence, place of work, phone numbers, email ID’s to places of visits everything.
2. The stalker may post all the information on any website related to sex-services or dating
service, and uses filthy and obscene language to invite person as if the victim himself posted
these information so the interested person may call the victim on his numbers to have sexual
services.
3. All the people from the world would call the victims on his phone numbers at home or on
mobile asking for sexual services.
4. Some will send e-mail to the victim attaching pornographic material with it and sometimes
posted these emails on the pornographic sites.
5. Some will post morphed pictures of the victim on these pornographic and sex-service websites
or keep asking for favour and threaten them if they do not fulfill their demands then they will put
these pictures all over the internet.
6. Sometimes the stalkers send them repetitive e-mails and call them day and night at his phone
numbers and keep track on them. The stalkers sometimes get the help of third party to harass the
victim.
The Social Networking sites such as Facebook, Twitter, Orkut, Google plus, Instagram and many
more are becoming a medium to cyber stalking in the modern world.

Reasons behind Cyber Stalking

1) Harassment:
The main intention of the stalker is to harass. The women sexually harassed by the stalker at
many times. The stalker has or created a photo of the victim and he threaten the victim to have
sex with him otherwise he will upload the photo or video. The stalker has some affection to
victim, if she denied that then he will do against the victim. The thing is the stalker has intention
that' if she not mine of himself, she will not mine of anyone. 'Then the stalker doing all those
things.

In U.S.A the stalker neighbor of the victim, has seminude photo of the victim aged 16 and the
perpetrator threaten the victim to have sex with him otherwise he will posted it into the public
media. This way he harassed her for 1 year, afterwards it was founded by her parents and they
informed it to the police. The stalker gets that photo from the Facebook and he morphed it as a
seminude photo of the victim.

2) Fascination

This is a one side love or online romance. The stalker has love of affection towards the victim
and if she refuses to accept his proposal then he will become the stalker. The rejected could not
accept the end of relationship with her. This kind of stalkers some time being a abnormal
persons. Sometimes the victim may be killed by the accused. In Tamil nadu 2012, the college
girl affected by the acid attack, done by her one side lover. This is not kind of stalking but
sometimes this kind of persons turned into the stalkers.

3) Revenge

This is kind of revenge against the victim. If the victim was refused his proposal then he made
revenge against the victim. In Germany the victim refused to accept the stalker's proposal.
Then he upload her photo into the social media and written above that ‘if anybody want's to sex
with me contact me' and he wrote her address and phone number. The victim does not have
knowledge about this and many persons are contacted her and some knocked her door in the
midnight and sexually harassed her.

4) Boasting or Showoff
This is kind of showing his talent how he harass a girl. This is happened in the friends circle. The
stalker challenged to his friends about he will easily make her cry and sometimes it turns into
aggravated form. This is kind of show off his talent in front of his friends.

Types of Stalkers
A. Simple Obsessional.

In this type the victim and the perpetrator has prior relationship. The main intention of the
perpetrator is to coerce or to re-enter into the relationship. Most of the stalkers who belongs to
this type. 47% of the stalkers are in this category.

B. Love Obsessional

In this type the perpetrator has great affection or love towards the victim and mostly they one
side lovers. The perpetrator was never accept that he was denied by his lover. Mostly the
perpetrator suffering from a mental disorder such as schizophrenia or bipolar disorder. 43% of
perpetrator belongs to this category.

C. Erotomanic

In this kind the stalker possess the delusion that the victim's behavior is has love with him. Then
he was falling with her and then it is become known to him the same then he became a stalker.

FACTORS PROVIDING IGNITION TO A CYBER STALKER

Factors that motivate stalkers to commit brutal and barbaric crime of cyber stalking are envy,
unemployment or failure in job or life coupled with an intention to intimidate their victims.
Sexual harassment is a common experience offline and recent technological advancements have
provided more impetus to it online also since internet reflects real lives and people. Pursuing the
victim under the garb of anonymity online has made stalking easy for sexual gratification.
Feeling of revenge and hatred may also lead to cyber stalking when something knowingly or
unknowingly said or done by the victim online offends someone. Obsession for love may be a
pertinent cause for initiating cyber stalking. It can start with an online romance which moves to
real life only to break-up once the persons really meet and one of them refuses to take “NO” for
an answer. Another case may be when obsessive stalking starts in real life and then graduates to
virtual world. Worst part about this kind of stalking is that perpetrator and victim are initially in
an intimate relationship so it leads to sharing of personal information which is later on used to
harass the victim.
IN WHICH SITUATION STALKING OCCURS

Two different kinds of cyber stalking situations which can occur.

1. Online harassment & cyber stalking that occurs & continues on the internet.
2. Online harassment and stalking that begins to be carried on offline too. This is when a stalker
may attempt to trace a telephone number or a street address. Always be careful what details you
give out over the web and to whom.

LEGAL SCENARIO IN INDIA

“Let every man know that to violate the law is to trample on the blood of his father, and to tear
the charter of his own and his children’s liberty.” - Abraham Lincoln,
Section 66A of the Indian Information Technology Act, 2008 penalizes sending false and
offensive messages through communication services.
It reads as follows: Any person who sends, by means of a computer resource or a communication
device, - (a) any information that is grossly offensive or has menacing character; or
(b) any information which he knows to be false, but for the purpose of causing annoyance,
inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill
will, persistently makes by making use of such computer resource or a communication device,
(c) any electronic mail or electronic mail message for the purpose of causing annoyance or
inconvenience or to deceive or to mislead the addressee or recipient about the origin of such
messages, shall be punishable with imprisonment for a term which may extend to three years and
with fine.
Explanation: For the purposes of this section, terms “electronic mail” and “electronic mail
message” means a message or information created or transmitted or received on a computer,
computer system, computer resource or communication device including attachments in text,
image, audio, video and any other electronic record, which may be transmitted with the message.

Section 72 of the Indian Information Technology Act, 2008 which deals with breach of
confidentiality and privacy, section 72A of the said Act which prescribes punishment for
disclosure of information for breach of lawful contract read with section 441 and 509 of the
Indian Penal Code (which deal with offences related to Criminal trespass and acts intended to
insult the modesty of a woman respectively), were being used to prosecute offenders for cyber
stalking before coming into force of the Criminal Law Amendment Act, 2013.
Now such offensive activities are to be dealt with by Section 354D of the Indian Penal Code,
(added by the Criminal Law Amendment Act, 2013 with effect from 3rd February, 2013) which
specifically makes provision for prosecuting the perpetrator of cyber stalking with harsher
punishment.
It reads as follows: (1) Any man who-
(i) 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
(ii) monitors the use by a woman of the internet, email or any other form of electronic
communication, commits the offence of stalking
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 or
detention of crime by the State; or
(ii) (ii) it was pursued under any law or to comply with any condition or
requirement imposed by any person under any law; or
(iii) in the particular circumstances such conduct was reasonable and justified.

(2) Whoever commits the offence of stalking shall be punished on first conviction
with imprisonment of either description for a term which may extend to three years,
and shall also be liable to fine; and be punished on a second or subsequent conviction,
with imprisonment of either description for a term which may extend to five years,
and shall also be liable to fine.

CASELAWS

I) Manish Kathuria Case

The first reported case of cyber-stalking in India and the reason for the 2008 amendment to the
IT Act,the Manish Kathuria case involved the stalking of a woman named Ritu Kohli. Kathuria
followed Kohli on a chat website, abused her by using obscene language and then disseminated
her telephone number to various people. Later, he began using Kohli‟s identity to chat on the
website "www.mirc.com". As a result she started receiving almost forty obscene telephone calls
at odd hours of the night over three consecutive days. This situation forced her to report the
matter to the Delhi Police. As soon as the complaint was made, Delhi Police traced the IP
addresses and arrested Kathuria under Section 509 of the Indian Penal Code. The IT Act was not
invoked in the case, since it had not come into force at the time when the complaint was filed.
While there is no record of any subsequent proceeding, this case made Indian legislators wake up
to the need for a legislation to address cyber-stalking. Even then, it was only in 2008 that Section
66-A was introduced. As a result, now cases are being reported under this section as opposed to
Section 509 of the Indian Penal Code, as was the case where a Delhi University student was
arrested for stalking a woman from Goa by creating fake profiles on social networking websites,
uploading pictures on them and declared her to be his wife. It is hoped that the decision in this
would favour the victim.

ii) Karan Girotra V. State

The only reported case till date to reach the judiciary on cyber-stalking is also merely an
application to grant anticipatory bail. This case dealt with a woman, Shivani Saxena, whose
marriage could not be consummated; as a result she filed for divorce by mutual consent. In the
midst, she came across Karan Girotra while chatting on the internet, who told her he loved her
and wanted to marry her. On the pretext of introducing her to his family, Girotra invited Saxena
over to his house, drugged her and assaulted her sexually. He continued to assure her that he
would marry her and began sending her obscene pictures from the night she was assaulted. He
also threatened to circulate the pictures if she did not marry him. As a result, an engagement
ceremony was performed between the two after which he continued to assault her and eventually
called off her engagement to her. As a result, Saxena filed a complaint under Section 66-A of the
IT Act.

Though the Court rejected the plea of anticipatory bail on the ground that nude and obscene
pictures of Saxena were circulated by Girotra, an act which requires serious custodial
interrogation, nonetheless it made some scathing remarks. According to the Court Saxena had
failed to disclose her previous marriage to Girotra merely because she agreed to perform the
engagement ceremony, even though such mention was made when Girotra had first professed his
love to Saxena. The Court also took noted that there was a delay in lodging the FIR by Saxena.
What is more shocking is that the Court held that Saxena had consented to the sexual intercourse
and had decided to file the complaint only when Girotra refused to marry her.

This case highlights the attitude of the Indian judiciary towards cases involving cyber-stalking. It
is appalling that factors as redundant as a delay in filing the FIR have a huge bearing on the
outcome of the case. It is for this reason that more stringent legislations are the need of the hour.

iii) Vinu Priya Case

This is very recent case. In this case the victim was a 21 years old, who finished her B,sc
chemistry. On June 23, when the first photograph appeared, she informed her parents who
lodged a complaint with the Cyber Crime Cell. The police, either lacking the investigative skills
to trace the origin of the morphed photograph or simply displaying lack of interest, told
Vinupriya's father that it will nab the culprit in two weeks. Two weeks? Seriously? Do those
cops in Tamil Nadu's Cyber Crime Cell understand the trauma Vinupriya and her family would
have gone through? That is not all. One of the officers in the Cyber Crime Cell allegedly asked
for a mobile phone if the father wanted the investigation to be done. Vinupriya's father says he
bought a cell phone worth Rs 2,000 for the cop and bemoans that despite taking a bribe, the
officer did not deliver justice. On June 26, another obscene photograph was posted on Facebook,
leaving Vinupriya traumatized. The investigating officer had already assumed that she must have
sent those pictures to someone and now they were being posted, perhaps by a jilted lover. The
line of questioning to Vinupriya was on those lines. When she was alone at home on June 27, she
killed herself[9].

The second photograph that had appeared on June 26, disappeared within hours of news of
Vinupriya's death becoming public. Proof, that the pervert was lurking somewhere close by or
was part of Vinupriya's friend circle.

iv) President Pranab mukharjee's daughter stalking case

Sharmistha Mukherjee, daughter of President Pranab Mukherjee, was allegedly harassed by a

man, who posted sexually explicit messages on her Facebook page.[10]She lodged a complaint
with the Cyber Crime unit of Delhi Police. Police said the "lewd" messages were sent to the
complainant through Facebook Messenger. The profile of the sender mentions him as a resident
of Nauhati in Hooghly, West Bengal. Mukherjee shared screenshots of the messages sent to her
and said she decided to speak up against online harassment as ignoring it would only encourage
him further. She also tagged the man who has now deleted his profile from Facebook.

"This pervert Partha Mandal is sending me dirty sexual messages. My 1st reaction was to ignore
and block him. But then I thought the silence would encourage him to find other victims. Just
blocking and reporting is not enough. I strongly feel such ppl shd be publicly exposed and
humiliated. I'm posting screenshots of his profile and messages he sent me. I'm also tagging him.
Please share this post and tag this rat as a message that these pervert acts will not be taken
lightly," she wrote.[11]

v) Cassidy stalking case

Cassidy was a miss teen U.S.A, was stalked over a year. She was stalked by Jared james
Abrahams, who he was higher secondary friend of Cassidy. He input a malware into the cassidy's
laptop through he collected lot of information about Cassidy and he upload a semi nude photo of
Cassidy in the social media and then it was informed into the FBI and they found the culprit.

Other Cases
Amanda Todd was a bright and bubbly13-year-old from Canada. During an Internet chat session,
a stranger asked her to bare her breasts. In a fleeting moment, she complied. Amanda had no idea
he'd recorded it. The stranger contacted her again, and threatened to release the file unless she
posed nude for him. She refused, and the photograph was released to her peers. After being
subjected to relentless bullying as a result, Amanda committed suicide.
·A 12-year-old Washington girl was sentenced on Wednesday to probation and community
service for a cyberstalking incident in which she and another 11-year-old girl doctored a
classmate's Facebook account with explicit photos and solicitations for sex.

But the mother of the victim, also 12, said she has "mixed feelings" about the sentencing of the
girls who hacked her daughter's Facebook page, and she isn't satisfied with the judge's ruling.

·The case dealt with the posting of sexually explicit material by Abraham Jacob Alkhabaz, a
student of the University of Michigan under the pseudonym "Jake Baker". Baker posted stories
on an internet newsgroup titled "alt. sex. stories" describing the torture, rape and murder of a
woman who had the same name as one of Baker’s classmates at the University of Michigan. In
addition, e-mails were exchanged between Baker and a man named Arthur Gonda from Ontario,
Canada, who was a reader of his story. Over forty e-mails were exchanged between the two men
discussing their desire to abduct and physically injure women of their area. As a result, a
complaint was filed against Baker under the Interstate Communications Act.

Yogesh Prabhu vs State of Maharastra

In July 2015, the Metropolitan Magistrate court convicted a senior executive of a private
company in a cyber-stalking case for four months imprisonment. This case became first
conviction case of cybercrime in the state of Maharashtra. Additional Metropolitan Magistrate N
R Natu convicted and sentenced Yogesh Prabhu to four months imprisonment for cyber stalking
his colleague working in a cargo handling firm in Panvel. The complainant stated in her
complained that the stalker had sent her pornographic images and videos. She also said that she
was getting scared as somebody was stalking her movements. “When she went to watch movie at
Adlabs, she received an email asking her “How was the movie you enjoyed it?” Another email
said why she did not come to temple Prabhadevi on that particular day? Where were she went
she got email asking about her visit which scared her and she lodged a complaint. A few days
later she started getting emails of pornographic images and movies which shattered her. During
the course of investigations the CCIC first traced the IP address of the server from where the
emails were sent. The trail led police to her office in Panvel and another IP address was of
Gurgaon. Both the IP address was found to be of the same company having its office in Panvel
and Gurgaon. Police than wrote to the Gmail server asking them to provide the details of the
account holder. During the course of investigations police learnt that Prabhu and the victim used
to see each other and wanted to tie knot but due to their age differences, victim’s family were not
keen on their relationship. Everything ended between them but Prabhu continue to like her and
started stalking her. He used to follow her and then immediately send her emails of her locations
and other details which scared her.
Other cases
In year 2011 Delhi University law student has been accused of stalking and threatening a woman
online. He also created her fake profiles on social networking sites to defame her. The woman
has lodged a complaint with Delhi Police alleging the accused has been harassing her for over a
year now. She said the law student has been making obscene phone calls and sending threatening
emails. The victim, while working in Delhi last year, became acquainted with the accused. He
asked her to marry him. She alleged that when she refused, he assaulted her and also threatened
to kill her. The victim also lodged a complaint with the police earlier and after that, the accused
apologized and promised not to bother her in future and also given a written statement to police
that he will not stalk her in future. The victim then moved to Goa to live with her parents. But
soon after she left Delhi, the accused created her fake profiles on social networking websites. He
then uploaded photographs on these sites and declared her to be his wife. The accused also
impersonated the victim online and made contact with her friends through these profiles and due
to this the girl’s marriage was called off. A case under Section 66-A of Information Technology
Act was lodged in New Delhi.
In India there are few cases which are coming to limelight but cases related to cyber stalking are
rapidly increasing. There are thousands of cyber stalking cases taking place in the nation, but
only few reported the cases to the police due the fear or threat. The crime related to cyber
stalking is increasing as its counterpart stalking in physical space as tracking the person is too
difficult task and he can be anyone from billions sitting anywhere. Few People now about the
cyber stalking crime. Some even do not know that cyber stalking exists in the society or it is
termed as crime.
Very few people are aware about the legal aspect of cyber stalking. We need to aware people
about these crimes and how can they avoid these kinds of crime. The legal provision has to be
stringent and the police personnel too need to get regular education and training regarding the
new emerging crime in the world.

Though cyber stalking does not involve physical contact yet, stalking through the internet has
found favor among the offenders for certain advantages available like, case of communication,
access to personal information and anonymity. Offline and online cyber stalking have certain
differences, which make the latter more dangerous. In specific, in online cyber stalking the cyber
stalker can be geographically located anywhere. In few instances, the cyber stalker does not even
directly harass his victim. Rather, he would pass such comments on a common discussion board
that would prompt the other users to send messages to the victim under a misconceived notion.

Constitutional Validity

With the brief analyzing of these cases the thing is being a women is very dangerous in this
society. Why it is so happened against the women mostly. Why the women are victimized at
every time? The world has to answer for these questions! Even the males also using the internet,
online and etc.. But they are not victimized as like females. This is happened against all kind of
females such as poor, rich, familiar, children and etcetera. Where there is no right for the female
or where there is no protection for female. Whether the modesty of women is safeguarded by the
law and order?

The provisions are saying to protect the women and safeguard her modesty but in reality there is
no protection for women and violation of her modesty is easily happened at all. All kind of
females are affected then what is the use of constitutional provisions such as right to life,
equality clauses, freedom of speech and expression. The rights are given but the enforcement of
these rights are not happened.

In Vinupriya case the girl was stalked by unknown person, who was a one side lover, even
though there is no protection for women, if the rights are protected the suicide of Vinupriya was
not happened. She proved she is innocent through her death, when she is committed suicide there
after only the police department took a immediate action because this case was familiar. Even
though the complaint was given 2 weeks before her death. But there is no action taken by the
police department. If they founded the culprit there is no suicide of Vinupriya. Even her parents
also does not believed her.

The injustices happened in all the forms against women. Constitution of india, 1950 declares'
both the men and women are same' whether there is equality prevails in all the situation. Both
men and women has right to access internet. The right is enforced but what about the protection?
If they are came into social media they are stalked. Then what is the fulfillment of these rights?
There is no protection for women at all.

If women are protected means the nirbhaya case was not happened. Even many cases happened
before nirbhaya case but the Indian government recently inserted a provision in Indian penal
code, 1860 about stalking is an offence .if serious crimes are happened then only the laws are
created. Every law has some murders of women behind that.

Right to Privacy vs. Freedom of Speech And Expression

Every person has both the rights. If the stalker were arrested, whether is freedom of speech and
expression was violated? If he doing like this then how can women exercise her right to privacy?
Article 19(2) gave some restrictions to the exercise of freedom of speech and expression. It gives
that he exercises his freedom not to violative of any other rights of others.

Right to privacy was very important right for the individual. Any person can personally do some
acts not to violate anyone. A women has right to access internet and if any person has right to
expose her body without her consent. But this happened usually. In Cassidy’s case the defendant
arguing that this is his freedom, he can watch anybody and make a sense of it. No one cannot
pick up his right. The judge not accepted his argument because this is very silly defense what
means of right to privacy, whether his freedom is to expose another's body or any other personal
things.

Right to privacy is very important for women. She has a right to life, right to life includes right to
dignity. No one cannot violate her modesty i.e., right to dignity.

The provisions alone saying every person has rights. But the enforcement of these rights in not
accessible. The documents and provisions are saying, people are writing page and page about
women rights but whether exercising of their rights is happening. Whether the enforcement of
these rights are happening or not, but the violation of these rights are happening usually. Even
after the period till now the position of the women was very critical. The forms of crime are
changing but the protection of the women is unchanged.

Legal Recognition And Challenges In Regulating Cyber Stalking:-

Legal Recognition:

California is the first country adopted the stalking law as a result of murder of actress Rebecca
Schaeffer by Robert bardo in 1989.
The stalking law was enforced in 1990
New York enacted penal laws, it says that stalking is an offence.
Australia adopted stalking statute in 1993.

Position in U.S.A

U.S.A is mostly affected country by cyber stalking. U.S.A adopted various laws at the center and
state level.
The first Act is Interstate communication Act.
Another federal legislation is telephone harassment statute
Interstate Stalking Punishment and Prevention Act.
Michigan was the first state to include online communications in its stalking laws in 1993.
And many other states were adopted the stalking statute.

Position in U.K

The UK does not have a specific legislation to deal with cyber-stalking. There are three
legislations that seek to criminalize such behaviour. The first of these legislations is the
Telecommunications Act, 1984. Under this Act, it is an offence to send a message that is
"grossly offensive or of an indecent, obscene or menacing character" or a message with the
purpose of "causing annoyance, inconvenience or needless anxiety" and knows that the message
is false, by means of a telecommunications system.

The second legislation on the point is the Protection from Harassment Act, 1997, which makes
the offence of criminal harassment and the offence involving fear of violence subject to civil and
criminal measures.
The third legislation on the point is the Malicious Communications Act, 1988. By the Criminal
Justice and Police Act, 2001, this legislation was amended to include electronic communications
as well.

Position in India:

India also lacks a specific legislation on cyber-stalking. The general legislation on the point is the
Indian Penal Code which makes the use of "words, sounds or gestures or exhibition of an object"
with the intent to insult the modesty of a woman or even the intrusion of a woman's privacy an
offence punishable with imprisonment for one year or with a fine.

This deficiency was sought to be rectified by the enactment of the Information Technology Act,
2000. The IT Act was enacted with the purpose of recognizing electronic commerce in
furtherance of the United Nations Model Law on Electronic Commerce. Therefore, the first
problem with the Act lies in the Preamble itself where the statute adopts a more commercial
outlook and does not even attempt to recognize in the Preamble, the intention of the statute to
regulate non-commercial criminal behaviour perpetrated through an electronic mode.

Nonetheless, the provisions of the IT Act do attempt to penalize acts of cyber-stalking. Prior to
the 2008 amendment, the first section that dealt with the issue is Section 67 which makes the
publication of any material that is "lascivious or appeals to the prurient interest or if its effect is
such as to tend to deprave and corrupt persons" punishable with imprisonment up to five years
and fine up to one lakh rupees which may increase to ten years and fine of two lakh rupees if the
offender is convicted for the second time. The second provision on cyber-stalking is Section 72,
which penalizes the disclosure of information obtained from "electronic record, book, register,
correspondence, information, document or other material" without the consent of the concerned
person with imprisonment up to two years and a fine up to one lakh rupees. The generality of
these provisions cannot be over-emphasized and it is quite evident that a number of issues such
as the use of innocent third-persons of the sending of innocent e-mails which may nonetheless
amount to harassment remain unaddressed by these provisions

In 2013 the Indian penal code was amended on the impact of nirbhaya rape case. Sections 354A,
354B, 354C, 354D was inserted on the recommendation of justice j.s varma committee.
Section 354D deals with stalking of a women. This Is very limited because there is no provision
for stalking of a men. And there is no law for if stalker is foreigner. The Indian penal code,1860
is extra-territorial but there is no effective extradition laws.
The enforcement of these laws are still a question mark. Many cases was filled under information
technology act before this amendment.

Challenges:

There is no effective law of cyber stalking.

We don't have a separate stalking law like U.S.A
Section 354D is limited, because there is no specific provisions for if a male stalked.
The extradition law of India is too weak. There is no effective extradition.
The stalkers are using modern technologies but the cyber crime technology is weaker then the
stalkers.
There is no immediate action from the police department, if it is happened the suicide of
Vinupriya is not happened.
If The poor girls are filling a case against the stalkers, the action of the police is question mark
because of bribery.
If the stalker is political party's son or a billionaire there is no immediate action from the police.
The enforcement of stalking law is still too weak.
The information technology Act, 2000 has no specific provision for cyber stalking.
The loop holes of the law accuted the stalker easily.
There is no fear of punishment from the stalker's side.

prevention strategies
As we know, prevention is always better than the cure and just a little care makes accidents rare.
The best way to avoid being stalked is to always maintain a high level of safety awareness. The
suggestions regarding staying safe online by Hitchcock (2000) are as follows:
1. Use your primary e-mail account only for messages to and from people you know and
trust.
2. Get a free e-mail account from someplace like Hotmail, Juno, or Excite, and so forth, and
use that for all of your other online activities.
3. When you select an e-mail username or chat nickname, create something gender-neutral
and like nothing you have elsewhere or have had before. Try not to use your name.
4. Do not fill out profiles for your e-mail account, chat rooms, IM (instant messaging), and
so forth.
5. Do set your options in chat or IM to block all users except for those on your buddy list.
6. Do learn how to use filtering to keep unwanted e-mail messages from coming to your e-
mailbox.
7. If you are being harassed online, try not to fight back. This is what the harasser wants—a
reaction from you. If you do and the harassment escalates, do the following:
a. Contact the harasser and politely ask them to leave you alone
 b. Contact their ISP and forward the harassing messages
c. If harassment escalates, contact your local police
d. If they can not help, try the State Police, District Attorney’s office and/or State
Attorney General
e. Contact a victims group, such as WHOA, SafetyED or CyberAngels

Suggestions
“Treat your password like your tooth brush. Don’t let anybody else use it, and get a new one
every six months.” - Clifford Stoll
I strongly believe that in complete darkness we all are on the same footing and it is only our
knowledge and wisdom that leads us towards light. Internet users must be proactive towards their
safety and must keep in mind is that no one has the authority to harass any other person. To curb
cyber stalking, instead of remaining a mute victim, the police must be informed immediately.
For the prevention of cyber stalking I would like to give following suggestions:
(i) Real name must never be used as screen name of user ID and also personal information
must never be disclosed in public places like chat rooms.
(ii) ISP and Internet Relay Chat network that have an acceptance use policy which prohibits
cyber stalking should be preferably used.
(iii) Generally every outgoing mail may have a signature that contains information about the
sender such as telephone or fax number which gets automatically added to the end of the
mail message by email program. While sending email to unknown persons personal
details should be removed from signatures which are attached to the emails.
(iv) Computer keeps a memory reserve therefore memory catch after surfing internet must
be removed so that anyone who accesses the computer cannot see what sites that person
visited. (v) Harassment mails must be reported to Internet Service Provider like MTNL
etc. and e-mail provider like gmail, yahoo etc.
(v) Advice from technically sound persons must be sought. Even the creator of the
rampaging famous “I love you” virus was tracked down by street-smart users as stalker
left behind a distinct electronic trail through his I.P. address.
(vi) Users must behave appropriately and politely while participating in chat room
conversations and must never indulge in heated arguments.
(vii) A person must make sure that virus protection is up to date and passwords must also be
changed regularly to keep the stalker away from personal computer.
(viii) Every now and then people must search for their name or their family members’ name
online and endeavor should be made to remove private or inappropriate matter.
(ix) Many cyber stalkers physically attack or rape their victims when they meet them in the
physical world. Hence one must never meet an online acquaintance alone in the real
world.
(x) User can hide his or her identity with anonym misers which are famous for encrypting
the URLs that a person visits so that an Internet Service Provider cannot keep a record of
them.
(xi) Screening voice calls, SMS, chat and email may be done. If someone bothers in an
online forum often communications from them can be blocked.
(xii) A person’s plan to travel or attend a place must never be disclosed on any online
calendars. Not even on social network sites where events are listed. Such disclosures are
likely to enable a stalker to know a person’s whereabouts.
(xiii) Privacy settings in all online accounts must be used to regulate online sharing with those
outside the trusted circle.
(xiv) It has been appropriately commented by Jennifer Aniston that “parenting is one of the
hardest jobs on earth.”8 Parents must keenly observe the changes in the nature and
attitudes of their children and keep an eye on their activities so as to curb probable cyber
stalking.
For example if the child quickly changes the computer screen or switches off the computer when
parents enter the room, it points out to the fact that the child is trying to hide something from his
parents. Children and teenagers must notify their parents immediately the moment they feel that
the online behavior of their contacts is making them uneasy. There are certain steps that can be
taken by parents in order to protect their children from being victims of cyber stalking like
limiting amount of time that children spend online, moving the computer to some public area of
the house like drawing room as it will prevent the child from engaging in undesirable-net-
activities with someone around, forbidding the children to talk to or meet someone whom they
met in the virtual world, instructing children not to respond to messages that are threatening or
obscene in nature, by ensuring that they are comfortable enough to inform parents when they
receive such a message or feel intimidated by someone whom they met online and by making
child understand the dangers of internet.
If at all a person falls prey to the cyber stalker then regardless of previous relationship with the
stalker contact with him should be avoided at all costs and all online conversations with a stalker
should be saved for later reference by the police. Victim should try not to be intimidated by the
cyber stalker.
“Be not the slave of your own past-plunge into the sublime seas, dive deep, and swim far, so
you shall come back with a new self-respect, with new power, and with an advanced experience
that shall explain and overlook the old.”

CONCLUSION
Due to threat or fear of getting abused in the society, nearly half of the victims try to move on in
their lives after considering it a bad dream. It has been categorically suggested by Albert Einstein
that “Life is like riding a bicycle. To keep your balance, you must keep moving.” However, the
issue of cyber stalking, being very sensitive, must be addressed immediately as it leaves a deep
scar on the victim’s psyche if left unaddressed. There is a general ignorance of the masses about
cyber stalking. Hence it is imperative that awareness regarding this heinous-online-abuse should
be spread amongst the people. Likewise, existence of the legal remedies to curb it must be
brought to the knowledge of masses as it is the only silver lining in the dark clouds to dispel the
atrocious darkness of cyber stalking.
“Give light and the darkness will disappear itself” -Desiderius Erasmus

CYBER PORNOGRAPHY

INTRODUCTION
Pornography represents a form of violence against women that "Glamorizes the degradation and
maltreatment of women and asserts their subordinate function as mere receptacles for male lust".
Pornography treats women's body as packages of anatomical parts, rather like cuts of meat
arranged on a butcher's shop. Recent studies show that pornography actually incites otherwise fair/
non-aggressive men to attack women. Even the kind of sex and violence shown on television may
have this effect. Thus we can speak of pornographic films, books, photographs, postcards, figures
and much else.
The literal meaning of the term 'Pornography' is ―describing or showing sexual acts in order to
cause sexual excitement through books, films, etc.
The word ‘Pornography’ derived from Greek words ‘Porne’ and ‘Graphein’ means writing about
prostitutes, or referred to any work of art or literature dealing with sex and sexual themes. Defining
the term pornography is very difficult and it does not have any specific definition in the eyes of
law as every country has their own customs and tradition. The act of pornography in some
countries is legal but in some it is illegal and punishable.

DEFINITON OF THE TERM PORNOGRAPHY AND ITS NATURE

In any country where freedom of expression is regarded as important, whether or not it is
constitutionally guaranteed, it is expected that some balance must be struck between the right to
free expression and the right of government to restrict and prohibit it publication or distribution.
Therefore, in the context of obscenity (and after internet, particularly child pornography), and
immorality, the government, of a country has been consistently putting 'reasonable' restriction
through various enactments. It is important to note that, Indian law nowhere defines the term
'Pornography'. Even the term is not statutorily defined in the United States of America. It is also
felt that as there is no uniform standard of moral culture and ethics there cannot be any
fixed/uniform definition of this term. Pornography is often described as hard to define but easy to
recognize.
Effects of Pornography
Research has shown that pornography and its messages are involved in shaping 136 attitudes and
encouraging behavior that can harm individual users and their families. Pornography is often
viewed in secret, which creates deception within marriages that can lead to divorce in some cases.
In addition, pornography promotes the allure of adultery, prostitution and unreal expectations that
can result in dangerous promiscuous behavior.
DEFINITION FOR CYBER PORNOGRAPHY
Cyber pornography is in simple words defined as the act of using cyberspace to create, display,
distribute, import, or publish pornography or obscene materials. With the advent of cyberspace,
traditional pornographic content has now been largely replaced by online/digital pornographic
content
Where as Pornography has no legal or consistent definition. Pornography depends how the society,
norms and their values are reacting to the pornographic content.

Difference Between obscenity and pornography

At this juncture it is important that the term pornography and obscenity may be understood in their
widest meaning.
The literal meaning of the term 'pornography' is describing or showing sexual acts in order to cause
sexual excitement through books, films etc.
The Little Oxford Dictionary defines pornography as - "an explicit presentation of sexual activity
in literature, films, etc.".
The Concise Oxford Dictionary defines Pornography as - "the explicit description or exhibition of
sexual activity in literature, films etc. intended to stimulate erotic rather than aesthetic feelings."
Concise Oxford Dictionary defines obscenity - “offensively or repulsively indecent, esp. by
offending accepted sexual morality." Often the term 'pornography' is understood in context of
'obscenity'.
However, it is submitted that obscenity is a broader concept, which includes in itself all those acts
that are offensive to modesty or decency. Thus, in the light of the above definition it is found that
the crux of the matter is not 'Pornography' but 'Obscenity'. It is unfortunate that, majority of us
carry a false impression that pornography should be regulated, but on the contrary it is submitted
that what is obscene or harmful to public decency should be checked and not pornography.
Further, discussions about pornography regulation often give meaning to pornography on three
different aspects:
first is the legal definition used to define the term.
secondly, what the porno material says and how others are influenced by the use of it.
finally, what is the effect upon those who view that material.
Thus the above makes clear that pornography by itself does not constitute offence but pornography,
which is obscene, and detrimental to public welfare, is an offence. At this point, the term obscene
must be understood. The literal meaning of the term obscene is - words, thoughts, books, pictures,
etc. indecent esp. sexually, disgusting and offensive, likely to corrupt those whose minds are open
to such immoral influences. Thus in the light of above discussion it is submitted that every obscene
material is pornography but every pornography material is not obscene.
Test of Obscenity and Pornography
To understand the gravity and effect of pornography and obscenity on society, we need to
understand these terms in their widest possible amplitude. The Word Pornography has not been
defined legally in any part of the world. The basic reason behind this is very simple; neither we do
have any uniform standard of moral cultural, values and ethics and nor we have any uniform
standard of law.
The term obscene means relating to materials that can be regulated or criminalized because their
depiction of nudity, sex, or excretion is patently offensive and without artistic or scientific value.
The test of obscenity was first laid down in the case of Regina V. Hicklin as the tendency “to
deprave and corrupt those whose minds are open to such influences and into whose hands a
publication of this sort may fall”, and it was understood that this test would apply only to the
isolated passage of the work
In Miller v. California, the Supreme Court of United States in landmark judgment gave the basic
guidelines and three point tests to determine obscenity in the work i.e.
1. That the average person, applying contemporary “community standards”, would find that the
work, taken as a whole, appeals to the prurient interest.
2. That the work depicts or describes, in an offensive way, sexual conduct or excretory functions,
as specifically defined by applicable state law or applicable law.
3. Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
Before the miller’s (supra) case, in Roth v. United States
The Supreme Court of United States in landmark case held that “obscene material was not
protected by the First Amendment and could be regulated by the States rather than by a singular,
Federal standard and also a new judicial standard for defining obscenity that invoked the average
person’s application of contemporary community standards to judge whether or not the dominant
theme of the material taken as a whole appeals to prurient interest.” The Supreme further held that
“to decide obscenity derived we need to consider the following five-part structure:
(1) The perspective of evaluation was that of an ordinary, reasonable person.
(2) Community standards of acceptability were to be used to measure obscenity.
(3) Obscenity law will only apply to the works whose theme is in question.
(4) A work, in order to be evaluated for obscenity, had to be taken in its entirety.
(5) An obscene work was one that aimed to excited individuals’ prurient interest.”
However, in India miller test was not adopted by the Supreme Court, instead it has adopted the
Hicklin’s Test in leading case of Ranjeet D. Udeshi v. State of Maharashtra; the Supreme Court
has decided many issues pertaining to the obscenity. The apex court doesn’t consider obscenity a
vague concept but a word which is well-understood even if persons differ in their attitude to what
is obscene and what is not. The apex court has stated that “In judging a work, stress should not be
laid upon a word here and a word there, or a passage here and a passage there. Though the work
as a whole must be considered, the obscene matter must be considered by itself and separately to
find out whether it is so gross and its obscenity so decided that it is likely to deprave and corrupt
those whose minds are open to influences of this sort. In this connection the interests of
contemporary society and particularly the influence of the impugned book on it must not be
overlooked. Where, obscenity and art are mixed, art must so preponderate as to throw the obscenity
into a shadow or the obscenity so trivial and insignificant that it can have no effect and may be
overlooked. It is necessary that a balance should be maintained between “freedom of speech and
expression” and “public decency or morality”; but when the latter is substantially transgressed the
former must give way.”

The court however, sounded a note of caution that treating with sex and nudity in art and literature
cannot be regarded as evidence of obscenity without something more. In the words of court “It is
not necessary that the angels and saints of Michelangelo should be made to wear breeches before
they can be viewed. If the rigid test of treating with sex as the minimum ingredient were accepted
hardly any writer of fiction today would escape the fate Lawrence had in his days. Half the book-
shops would close and the other half would deal in nothing but moral and religious books.”
In this case the Supreme Court has decided that Hicklin’s test cannot be discarded, and said “It
makes the court the judge of obscenity in relation to an impugned book etc. and lays emphasis on
the potentiality of the impugned object to deprave and corrupt by immoral influences. It will
always remain a question to decide in each case and it does not compel an adverse decision in all
cases.”
In Samresh Bose v. Amal Mitra, the Supreme Court has held that “A vulgar writing is not
necessarily obscene. Vulgarity arouses a feeling of disgust and revulsion and also boredom but
does not have the effect of depraving, debasing and corrupting the morals of any reader of the
novels, whereas obscenity has the tendency to deprave and corrupt those whose minds are open to
such immoral influences”. In this case the court differentiated between vulgarity and obscenity
and further held that while judging the question of obscenity “the Judge should ... place himself in
the position of a reader of every age group in whose hands the book is likely to fall and should try
to appreciate what kind of possible influence the book is likely to have in the minds of the readers”.
LEGAL PROVISIONS RELATING TO OBSCENITY IN INDIA
Before analyzing the provision laid down in Indian Penal Code 1860 and Information Technology
Act 2000, let us take a look to what Article 19 (1) (a) of Indian Constitution says. Clause (2) of A.
19 of the Constitution of India imposes certain restriction on the right enjoyed under sub-clause
(a) of clause (1) of the same article. The provision reads as follows:
(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent
the state from making any law, in so far as such law imposes reasonable restriction on the exercise
of the right conferred by the sub-clause in the interests of the sovereignty and integrity of India,
the security of the state, friendly relations with foreign state, public order, decency and morality,
or in relation to contempt of court, defamation or incitement to an offence.
In Maqbool Fida Husain v Raj Kumar Pandey the fact of the case is that famous painter MF Husain
painted an art work of a nude lady in grief without giving it any title. The untitled painting was
sold to a private collector in 2004. In 2006 it was included as part of an online charity auction for
victims of the Kashmir earthquake under the name ‘Bharat Mata.’ Husain had no role or
involvement in this auction. There were large-scale protests against the painting, which appeared
in an advertisement for the auction. There were multiple complaints filed under section 292, 294,
298 of the Indian Penal Code, 1860. The question was that whether portrayal of the nude lady in
the painting as “Bharat Mata” should be considered as obscene under section 292 of IPC. The
Court held that “…the aesthetic touch to the painting dwarfs the so-called obscenity in the form of
nudity and renders it so picayune and insignificant that the nudity in the painting can easily be
overlooked.” The nude woman was not shown in any peculiar kind of posture, nor was her
surroundings painted so as to arouse sexual feelings or lust. The placement of the Asoka Chakra
was also not on any particular part of the body of the woman that could be deemed to show
disrespect to the national emblem.
The Court pointed out that “...the literature of India, both religious and secular, is full of sexual
allusions, sexual symbolisms and passages of such frank eroticism the likes of which are not to be
found elsewhere in world literature.” It went on to state that “While an artist should have creative
freedom, he is not free to do anything he wants. The line which needs to be drawn is between art
as an expression of beauty and art as an expression of an ill mind intoxicated with a vulgar
manifestation of counter-culture where the latter needs to be kept away from a civilian society.”
The Court also said, “There should be freedom for the thought we hate. Freedom of speech has no
meaning if there is no freedom after speech. The reality of democracy is to be measured by the
extent of freedom and accommodation it extends.”

In K.A. Abbas v. Union of India, 36 the Chief Justice of Supreme Court M. Hidayatullah held
regarding film censorship that “our freedom of speech and expression is not absolute rather limited
by reasonable restrictions under Art. 19 (2) in the interest of general public to maintain public
decency and morality. Therefore, film censorship has full jurisdiction in the field of cinematograph
film to prevent and control obscenity and pornography.”
In Raj Kapoor and Others v State and Others37, The Supreme court while deciding whether the
movie, “Satyam Shivam Sundaram,” was obscene and indecent or not has said that “While a
certificate issued by the Censor Board is of relevance, it does not preclude the court from deciding
if a film is obscene or not.”

Justice Krishna Iyer further stated that “An act of recognition of moral worthiness by a statutory
agency is not opinion evidence but an instance or transaction where the fact in issue has been
asserted, recognized or affirmed. The Court will examine the film and judge whether its public
policy, in the given time and clime, so breaches public morals or depraves basic decency as to
offend the penal provisions. Yet, especially when a special statute (the Cinematograph Act) has
set special standards for films for public consumption and created a special Board to screen and
censor from the angle of public morals and the like, with its verdicts being subject to higher review,
inexpert criminal courts must be cautious to “rush in” and must indeed “fear to tread” lest the
judicial process become a public footpath for any highwayman wearing a moral mask holding up
a film-maker who has traveled the expensive and perilous journey to the exhibition of his
“certificated” picture. Iyer went on to state, “Art, morals and laws, aesthetics are sensitive subjects
where jurisprudence meets other social sciences and never goes alone to bark and bite because
state-made strait-jacket is inhibitive prescription for a free country unless enlightened society
actively participates in the administration of justice to aesthetics.” He observed, “The world’s
greatest paintings, sculptures, songs, and dances, India’s lustrous heritage, the Konarks and
Khajurahos, lofty epics, luscious in patches, may be asphyxiated by law, if prudes and prigs and
state moralists prescribe paradigms and prescribe heterodoxies.”

Therefore, as the clause clearly says, a restriction can be imposed on the individual’s right to
freedom of speech on the grounds of public interest morality and decency. Pornography can be
covered under this provision of the constitution.
At the outset it is worth mentioning here that the term, 'Pornography' is not used in S.292 of IPC
or S.67 of the IT Act. However, The IT Act 2000 does not depart for the definition of "obscenity"
in the Indian Penal Code 1860
Section 292 of Indian Penal Code 1860 Section 292 of IPC deals with Sale, etc of obscene books,
etc.:
Its says - ".for the purpose of sub-section 2, book, pamphlet, paper, writing, drawing, painting,
representation, figure or any other object shall be deemed to be obscene, if it is lascivious or
appeals to the prurient interest or if its effect are such as to tend to deprave and corrupt persons
who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained
or embodied in it.
Whereas Section 67 of Information Technology Act, 2000; deal with obscenity and pornographic
content on internet.
Section 67 of the IT Act provides:
“Whoever publishes or transmits or causes to be published in the electronic form, any material
which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave
and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear
the matter contained or embodied in it, shall be punished on first conviction with imprisonment of
either description for a term which may extend to two three years and with fine which may extend
to five lakh rupees and in the event of a second or subsequent conviction with imprisonment of
either description for a term which may extend to five years and also with fine which may extend
to ten lakh rupees.
After going through both the definitions, we can see, that the concept of obscenity is same in
section 292 of the IPC and section 67 of the IT Act. The only difference is that it is discussed under
different enactments. Section 292 of IPC speaks of any "book, pamphlet, paper, writing, drawing,
painting...or any other object", whereas section 67 of the IT Act covers- "electronic form" only.
Moreover the punishment prescribed u/s67 is more severe then u/s 292 of IPC
The Section 67 of IT Act 2000 is comparable to Section 292 of Indian Penal Code, 1860.
In Ranjit D. Udeshi v. State of Maharashtra27 held that unlike other provision which have words
like “knowingly” or “negligently” and thus make mens rea a condition precedent to establish the
guilt. Section 292 does not make knowledge of obscenity an ingredient of the offence. The
prosecution does not prove something which the law does not burden it with. The difficulty of
obtaining legal evidence of the offender’s knowledge of the obscenity of the book, etc. has made
the liability strict. The absence of such knowledge may be taken in mitigation but does not take
the case out of the provision. If we apply the Ranjit D. Udeshi case judgment (supra) to Section
67 of IT Act, 2000, it can be concluded that mere publication and transmission of obscene material
is an offence notwithstanding the mental state of offender.

Recent case law

Recent Indian incidents revolving around cyber pornography include the Air Force Balbharati
School case. A student of the Air Force Balbharati School, Delhi, was teased by all his classmates
for having a pockmarked face. Tired of the cruel jokes, he decided to get back at his tormentors.
He scanned photographs of his classmates and teachers, morphed them with nude photographs and
put them up on a website that he uploaded on to a free web hosting service. However, he was
granted bail by a juvenile court. Judges Sanjay Agarwal and Ila Rawat said that bail is a matter of
right and not an exception. The court went on to say that according to Section 12 of The Juvenile
Justice Act 2000, "When a juvenile is brought to a court, he should be released on bail, if there is
no chance of him/her absconding.” The Court further remarked that students in the age group of
the accused had a tendency to scribble graffiti in bathrooms, blackboards etcetera. Court said that
in the cyber era that we live in, the present case was an example of 'tech graffiti', adding that it
should not be taken seriously. The purpose of the law would be served not by detaining the boy
but by rehabilitating him. Showing grave concern for the boy's future, the judges remarked that
keeping in view the purpose of the Juvenile Justice Act and United Nations rules for the care and
protection of children, 'we should not let this childish activity spoil the boy's career'. Noting that
he was in class XII, which is an important milestone in a person's career, they said the school
should not push him into the backwaters

The most recent example is of Delhi Metro CCTV footage leaks , where the CCTV recording couples getting
intimate in metro stations etc. which has been recorded by police security cameras has been leaked on
internet.

In another incident, in Mumbai a Swiss couple would gather slum children and then would force
them to appear for obscene photographs. They would then upload these photographs to websites
specially designed for pedophiles. The Mumbai police arrested the couple for pornography.
In Chandrakant Kalyandas v. The State of Maharashtra , the Supreme Court held that the concept
of obscenity would differ from country to country and from society to society on the standard of
morals. Again it was recognized that the standards of contemporary society in India were also fast
changing and if a reference to sex by itself were considered obscene, no books would be sold
except those, which are religious. The court went on the say, what one has to see is whether a class,
not an isolated case into whose hands the book, article or story falls, suffer in their moral outlook
or become deprave by reading it or might have impure thoughts aroused in their minds.
Again, in case of Samaresh Basu v. Amal Mitra (1985) 4 SCC 289, the court said that the concept
of obscenity is molded to a great extent by the social outlook of the people who are generally
expected to read the book. The court further admitted that even the outlook of a judge might differ
from other judge on the question of obscenity. The court held that in order to constitute an offence
u/s 292 of the IPC, the matter complained of as obscene must be so gross and its obscenity so
pronounced that it is likely to deprave and corrupt those whose minds are open to influence of this
sort. The court went on to say that even the attitude of the judge hearing the matter is likely to
influence, his mind and his decision on the question (at times even unconsciously). In judging the
question of obscenity, the judge should try to place himself in the position of the author from
whose view point the judge should try to understand as to what it is that the author seeks to convey.
The judge should thereafter place himself in the position of reader of every age group in whose
hands the book is likely to fall and should try to appreciate what kind of possible influence the
book is likely to have in the minds of readers. It was however held that though a court may consider
the views of reputed authors, the ultimate duty to make proper assessment regarding obscenity
rests with the court.
The Supreme Court in the famous Bandit Queen case i.e Bobby Art International v. Om Pal Singh
Hoon (1996) held that the film was a serious and sad story of a village-born female child becoming
a dreaded dacoit. The court in this case emphasized on the message that the film intended to
convey. The scenes in question relating to her being humiliated, stripped naked, paraded, made to
draw water from the well, within the circle of a hundred men, were not found to arouse prurient or
lascivious thoughts but revulsion against the perpetrators and pity for the victim. The SC held that
the film shows the consequences of a social evil necessary must show that evil.
In case of Shankar v. St of Tamil Nadu (1994) 4 SCC 478, the Supreme Court come down heavily
on popular Hindi cinema. The court said that the Censor Board must see that the movies convey
the values of life. Scenes of violence, rape, sex etc. would frustrate the avowed objects. The court
went on to say that films should be of educative value and only then can they play an important
role in sub serving the interests of the society.
In Jayesh S. Thakkar v. State of Maharashtra, the petitioners wrote a letter to the Chief Justice of
the Bombay High Court, about pornographic websites on the internet. The letter was treated as suo
motu writ petition. The Bombay High Court passed an order to appoint a committee to suggest and
recommend ways of preventive and controlling measure and means to protect children from access
to pornographic and obscene material on the internet. The Committee upon identifying key issues
made recommendations on cyber cafes that asking Cyber Cafés to maintain proper logs and
registers of persons entering and using their facilities was feasible and desirable. The Cyber Café
operators to keep physical records with addresses, checked against Photo Identity cards, of persons
who use their machines. Regular users can be given free ‘membership’ to obviate the need for re-
entering details on each occasion. That minor ought to be restricted to using machines that are not
behind partitions or in cubicles and, preferably, are loaded with suitable checking software. This,
the Committee felt, would serve both as a check and as a deterrent. The committee placed a special
emphasis on lack of technical knowledge in police and recommends special training of cyber cops.
The reports of the committee were well accepted by the courts and being put into practice by the
police and cyber cafes jointly

In Tamil Nadu v. Suhas Katti, The defendant was charged for annoying, obscene and defamatory
message in the yahoo message group relating to a divorcee woman. E-Mails were also forwarded
to the victim for information by the accused through a false e-mail account opened by him in the
name of the victim. The posting of the message resulted in annoying phone calls to the lady in the
belief that she was soliciting. Based on a complaint made by the victim, the Police traced the
accused to Mumbai and arrested him within the next few days. The accused was a known family
friend of the victim and was reportedly interested in marrying her. She however married another
person. This marriage later ended in divorce and the accused started contacting her once again. On
her reluctance to marry him, the accused took up the harassment through the Internet. The Charge
Sheet was filed u/s 67 of IT Act 2000, 469 and 509 IPC. On the basis of the expert witness the
court held that the crime is conclusively proved and the accused was convicted and sentenced to
undergo rigorous imprisonment for 2 years and to pay Rs. 500 fine u/s 469 of the IPC i.e. forgery
for the purpose of harming reputation; for the offence u/s 509 of the IPC. This is considered as the
first case convicted under section 67 of Information Technology Act 2000 in India.4
Child Pornography a menace in modern world
The children especially adolescents are in modern world want to explore everything on information
highway. The children in today’s generation have access to internet and computer’s at home, the
internet and computer are part of their studies. The access to computer and internet makes them
vulnerable to the potential danger of internet. The children are sometime curious about sexuality
and sexual explicit material. The parents don’t have too much control over the children and the
children are busy exploring the internet and other medium to fulfill their wishes through the on-
line access. Sex–offenders exploit these conditions and fulfil the need of children. The child at this
tender age doesn’t understand and recognise the potential danger of these contacts. The internet is
highly used by the abusers to abuse children sexually worldwide. The children in India become
viable victim to the cybercrime, as internet becomes the household item in India. The children are
becoming victims to the aggression of pedophiles.

In the physical world parents know the dangers, so they warn their children about the danger and
tell me how to avoid or face the problems by facing simple guidelines. But as far as cyber crime
or crime related to internet is concerned the parents themselves doesn’t know about the problems
or danger posed by various service offered over the internet. The pedophiles take advantage of
these things and lure children and win their confidence and then exploit them because parents or
teachers doesn’t tell them about what is wrong or right over the internet.
The Information Technology Act, 2000 doesn’t contain any specific provision related to child
pornography but later a new section 67B29 has been inserted in Information Technology
Amendment Act 2008. This section provides that:
“Whoever,- (a) publishes or transmits or causes to be published or transmitted material in any
electronic form which depicts children engaged in sexually explicit act or conduct or (b) creates
text or digital images, collects, seeks, browses, downloads, advertises, promotes, exchanges or
distributes material in any electronic form depicting children in obscene or indecent or sexually
explicit manner or (c) cultivates, entices or induces children to online relationship with one or
more children for and on sexually explicit act or in a manner that may offend a reasonable adult
on the computer resource or (d) facilitates abusing children online or (e) records in any electronic
form own abuse or that of others pertaining to sexually explicit act with children, shall be punished
on first conviction with imprisonment of either description for a term which may extend to five
years and with a fine which may extend to ten lakh rupees and in the event of second or subsequent
conviction with imprisonment of either description for a term which may extend to seven years
and also with fine which may extend to ten lakh rupees
Provided that the provisions of section 67, section 67A and this section does not extend to any
book, pamphlet, paper, writing, drawing, painting, representation or figure in electronic form- (i)
The publication of which is proved to be justified as being for the public good on the ground that
such book, pamphlet, paper writing, drawing, painting, representation or figure is in the interest of
science, literature, art or learning or other objects of general concern; or (ii) which is kept or used
for bonafide heritage or religious purposes

Recently Lt. Col. Jagmohan Balbir Singh was arrested by the Cyber Cell of the Crime Branch
police on the charge of uploading sexually explicit images and clips of children on child
pornography websites. Lt. Col. Singh was charged under Section 67 B (punishment for publishing
or transmitting of material depicting children in sexually explicit act, etc. in electronic form) of
the Information Technology Act. It was the German police who first spotted the activity from
Mumbai on a server located in the United States. They sent a report to the Interpol, which in turn
forwarded it to the CBI Delhi, and subsequently to the Mumbai Crime Branch. The Cyber Cell
tracked the server activity to the Internet Protocol (IP) address of Lt. Col Singh and subsequently
he was arrested from his residence and charged with section 292 of IPC and 67B of IT Act 2000