BLAPL No. 4592 OF 2020
Justice S.K. Panigrahi
The Information Technology Act, 2000; the Constitution of India, 1950; and the Indian Penal Code, 1860.
The case’s factual matrix is that both the informant and the petitioner were in love with each other and were village mates along with classmates. Once, when the informant was alone at home, the petitioner took the advantage of the situation and went to her home and raped her, and recorded the heinous crime on his phone. After that, the petitioner blackmailed the informant that if she tries to tell to her parents then, he will kill her and would viral all the photos and videos of the petitioner on the social media account. The petitioner took advantage of the informant’s situation and maintained sexual relations with her. When the informant made her parents aware of the gruesome acts of the petitioner, he created a fake account of the victim and uploaded all the videos and photos on the account with the objective of traumatizing her. When the FIR was lodged, the police were unable to take any satisfactory measures on the said complaint which resulted in portraying the unsoundness of the system.
The learned counsel appearing on behalf of the petitioner contended that since the accused and victim are both adults, they are the best people to decide what is right or wrong. He asserts that the petitioner has an ITI diploma and is looking for employment, therefore his imprisonment will harm his career. He added that the petitioner is sincerely interested in getting married to the victim girl.
The learned counsel appearing on behalf of the informant contended that not only had the petitioner coercively engaged in sexual activity with the victim girl, but he had also cunningly recorded the private encounter and posted it to a fake Facebook account he set up in the victim girl’s name. Since the accused/petitioner is specifically accused of engaging in forced sexual activity against the victim’s will, the claim is quite serious. He further asserts that the case’s inquiry is still ongoing. The petitioner committed significant crimes, according to the entirety of the FIR’s allegations, the statement made under Section 161 of the Cr.P.C.1 and other documents found in the records. At last, he contended that the victim has suffered grave mental trauma because of the tactics used by the accused.
Whether the victim’s rights, particularly her right to privacy, which is closely linked to her right to have those unpleasant photos erased, remained unanswered even though the Act stipulates criminal sanctions for those who commit such offences?
The court held that although the impact of crime on the victim may vary significantly for the person(s) and case(s), the Indian criminal justice system is more of a sentence-oriented system with little emphasis on the disgorgement of victim’s loss and suffering. For some, the impact of crime is short and intense, while for others it is long-lasting. However, a lot of victims find the criminal justice system to be daunting, perplexing, and complex. Many people are unsure about how to get assistance. As in the present instance, the victim’s rights to have those submitted photographs and videos removed from Facebook’s servers are still unresolved due to a lack of suitable legislation. The court further added that without a woman’s permission, allowing such offensive images and videos to remain on a social media platform is an outright violation of a woman’s modesty and, more importantly, her right to privacy. In such situations, either the victim or the prosecution may, if so advised, seek the proper orders to safeguard the victim’s fundamental right to privacy by having the offensive posts removed from the public platform, regardless of the current criminal procedure.
The Court relied on cases decided in the European Union to examine the right to be forgotten issue. The General Data Protection Regulation (GDPR), which regulates the collection, use, and disposal of personal data, refers to the right to be forgotten. In accordance with Article-17 of the GDPR, Recitals 65 and 66, and if the controller has exercised due care, the victim has the right to have such information promptly deleted. Additionally, data controllers must make all necessary efforts to ensure that inaccurate data is deleted or updated as quickly as feasible in accordance with Article 5 of the GDPR. The victim cannot be expected to appear in court each time erroneous data or information is found, the Court noted, especially when the data is within the control of data controllers like Facebook, Twitter, or other social networking sites.
1. The Code of Criminal Procedure 1908, sec 161.
This article is written by Prerna Pahwa, a student at Vivekananda Institute of Professional Studies, New Delhi.