Sologamy and Online Harassment of Women: What India needs to learn?
The first case of sologamy of Kshama Bindoo in India has sparked debate across the region.[1] Sologamy unlike monogamy or bigamy is an unknown marriage practice in Indian legal system. Indian laws recognise monogamy and prohibits bigamy (unless permitted by customary laws). But sologamy or marrying oneself has taken hold in other places, but regional laws including that of India, have not recognized it. As such, this case would not have attracted the attention of public including women’s rights activists and speech right advocates if not there were unwanted consequences of privacy infringements and trolling targeting Kshama after her marriage.[2] As the news reports suggest, Kshama decided to marry herself in order to avoid being a wife of someone, but to be a bride.[3] She publicised her plan of sologamy on her own social media platforms and also in the mainstream media. While this was just a normal exercise of freedom of speech and expression, some members of the society did not accept the same: for instance, her priest backed out and the temple where she planned to get married, also denied her permission to use the premises. The main reason for the societal rejection of Kshama’s plan lies in the core concept of the purpose of marriage: customary laws all across the globe emphasise the fact that marriages are essentially made for reproduction and expanding the family tree. It was one of the significant grounds for prohibition of same sex marriages as well.
But this author is more concerned about the online harassment of the woman concerned.
. Her right to expression and her privacy has been severely attacked, making her the target of misogynist and hate speech, trolling and bullying. The essential question is, can a woman express self-love, desire to marry herself and express her desire to stay married to herself forever in this male dominated world? The answer is obviously YES. But this positive answer goes on to affect the public morality in an extremely negative way because India has never seen such action from women. Internet trolls have raised questions about Kshama’s sexual identity, her psychological state of mind and above all, her family values.
The Constitution of India gives everyone irrespective of gender and age right to speech and expression and this has been extended to internet speech. But Kshama’s marriage to herself and the consequential online hatred puts a question mark to the safety of women at large. Her marriage has attracted many mainstream media channels as well as private bloggers and newsletter editors. She has now become a centre point of misogynist speech and ugly trolling that suggest that she has severe psychological problems and is seeking attention and publicity. This creates an extremely vulnerable situation: her decision for sologamy may directly affect her reputation in the job market as she has been branded as having psychological problems. This also jeopardizes her personal safety as moral polices are up to teach her a lesson for breaking the social custom of marriage. Kshama had requested all to respect her privacy. But that was hardly considered by internet trolls.
Kshama is not alone to be the target of trolls and haters for expressing her opinion and doing what she felt would be best for her. Khusboo Sundar, a prominent female actor of south India also faced a similar situation when her statement on virginity (before marriage got published in the mainstream printed public media in 2010.[4] The Supreme Court, while considering whether Khusboo’s comments may affect the public at large, decided that individuals have the right to express their opinion and cannot be targeted for speech that are unconventional to one’s gender. But in spite of the judicial decision, Khusboo was not spared from attacks to her reputation. Kshama or in that case, millions of women who take to internet to share their personal opinions, are regularly targeted by perpetrators including the trolls. Finding a perfect legal answer to online harassment such as this has become a never ending saga. The term ‘online harassment for women’ is a broad term which includes several patterns of criminal activities.[5] Majority of these are internet speech crimes and India does not have any dedicated laws to address misogynist bullying and trolling. Such ‘attacks’ are however addressed through different laws meant to address criminal intimidation under S.503 Indian Penal Code, defamation under S.499 and 500 Indian Penal Code, cyber stalking under S.354D Indian Penal Code sexual harassment by way of conveying sexually coloured remarks etc through cyber space under S.354A of the Indian Penal Code read with 67A Information Technology Act and making words, gesture etc intended to harm the modesty of women under.s509 Indian Penal code etc. Most of these offences are bailable and cognizable. But in spite of being cognizable, most of the victims do not get proper justice. Two prominent reasons exist here: (i) women victims’ reluctance to take the matter to the court and lack of awareness regarding the available complaint filing processes and (ii) availability of bail in the matters concerned. While there are many discussions on the first issue by several stakeholders, the latter issue concerns me more.
Bail is a matter of right for accused persons especially when the offences with which they are charged are indicated as bailable by the statutes. Let us now see certain common provisions that are used for charging the accused for misogynist speech, gender specific offensive bullying and trolling etc : in the absence of specific provision prohibiting and punishing offensive speech on internet, generally police may use the above mentioned laws. In cases where the offensive speech includes sexually explicit contents and comments, police may also use 67A of the Information Technology Act. Except the latter, all other provisions mentioned above are bailable. Even while the police may apply S.67A of the Information Technology Act in cases of cybercrimes against women (including speech and expression offences where contents of sexually explicit nature become an inherent part), the accused may get bail at the discretion of the magistrate if the police delays in investigation and/or preparing the charge sheet. Unfortunately this is the reality in most cases: victims may report the matter to the police but evidences may not be sufficient to take the matter to the significant stage of trial. The recent case of Sullideals and Bullibai app case can be a good example.[6] The accused collected images of Muslim women to upload them in an app apparently to ‘auction’ the women. Investigations revealed that the site was basically created to harass and humiliate the women concerned. The trial court granted bail to the prime accused mainly on humanitarian grounds as the court found that he was first time offender and was already in judicial custody.[7] Apparently the court saw the rights of the accused in this case. The court may had also considered the rights of the victim as such bails are granted on conditions of good behaviour and promise not to indulge in such behaviour again.
But this may hardly satisfy the victim/s. I argue that reputation damage of women may escalate even if the prime accused is released on conditional bails. The offensive comments, contents and images may not be completely wiped out and the said contents may help to gratify many others who may continue to victimise the primary victims by further trolling, sharing and humiliating.
Khsama’s sologamy may be the first of its kind in India, but the online humiliation that she had received and may continue to receive and its socio-legal consequences, are no exception.
Be it Kshama or the women whose images were featured in the Bullibai app or any female celebrity who is vigorously trolled and targeted by misogynists for their personal acts, we continue to live in an extremely complex cyberspace where existing laws may continue to fail to protect women. Focussed laws for controlling bad speech must be introduced and the execution of the laws must be done more prudently. The decision in Khusboo’s case showed the maturity of the courts in upholding freedom of speech and expression of women. Our courts need to show finer maturity in deciding about penology for online speech offences. Before using the judicial discretion in deciding about the rights of the accused, courts must hear victim impact statements.[8] This may help the courts in laying down therapeutic restorative justice plans that may be beneficial for both the offenders and the victims. Otherwise the cases of online harassment will continue to grow as the offenders may take the opportunity to show smartness over judicial intelligence and discretions.
[1] ET online(2022). India's first sologamist Kshama Bindu marries herself, urges media to respect her privacy. Published in https://economictimes.indiatimes.com/magazines/panache/indias-first-sologamist-kshama-bindu-marries-herself-urges-media-to-respect-her-privacy/articleshow/92101971.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst on 10/06/22, Accessed on 11.06.2022 [2] ET online(2022) Gujarati girl who wants to marry herself irks BJP leader; politician says will not allow marriage in any temple. Published @https://economictimes.indiatimes.com/magazines/panache/gujarati-girl-who-wants-to-marry-herself-irks-bjp-leader-says-will-not-allow-marriage-in-any-temple/articleshow/91998536.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst on 04.06.22 . Accessed on 12.06.22 [3] ibid [4] See in S.Khusboo vs Kaniammal CRIMINAL APPEAL NO. 913 of 2010 [Arising out of SLP (Crl.) No. 4010 of 2008. Accessed from https://main.sci.gov.in/jonew/judis/36277.pdf on 13.06.22 [5] See for more in Halder D., & Jaishankar, K (2016.) Cyber crimes against women in India. New Delhi: SAGE Publications. ISBN: 9789385985775 [6] See in Mohanty Suchitra(2022) Delhi court grants bail to Bulli Bai, Sulli Deals creators. Published in https://www.bbc.com/news/world-asia-india-60910718 on 29-03-2022. Accessed on 01.08.2022 [7] Ibid [8] See for more in Halder Debarati (2022). “Victim impact statement and its impact on Indian legal education”. Published in https://www.ccvrgnul.com/post/victim-impact-statement-and-its-impact-on-indian-legal-education on 12-01-2022. Accessed on 01.08.2022
*The article has been written by Prof. Dr. Debarati Halder*