Envisaging Feminist Lawyering in the Indian Context APRIL 23, 2024 IMPRI INSIGHTS

 Much is being written about feminist lawyering in the West; however, this work examines this idea in the Indian context, its elements, dimensions, challenges one may face, and the way it is being practiced. While reflecting on case laws and activism, this work suggests that

1. Feminist lawyering in a profoundly hierarchical society is a much broader concept than that of traditional lawyering, where a lawyer works not to win the case’ but aims at the larger goals of eliminating inequalities, contesting patriarchy, challenging sexist stereotypes, and addressing structural and systemic conditions that perpetuate male-domination.
2. Feminist lawyering demands affirmative actions besides survivor-centric or victim-centric justice, which entails understanding the situation using the intersectionality paradigm.
3. The purpose of feminist lawyering is to negotiate and contest women’s rights at various levels, where the lawyers strive to transform the androcentric systems to enforce the constitutional provisions of equality, liberty, and social justice.
4. Feminist lawyering questions the unjust norms within and outside the courtrooms, asking the legal system, courts, and society to be sensitive about gender concerns. It passionately demands the enforcement of the citizenship rights of half of humanity.

What is feminist lawyering and why is it required?

Feminist lawyering sees law as an instrument to challenges deeply embedded inequalities, including patriarchy, elitism, class-based discrimination, communalism, exclusion, misogyny, and sexism. It is a practice that supports the disadvantaged and demands for enacting such laws and policies that promote the representation of feminist voices in public and political space. Feminist lawyering is about examining the problem through the lens ofmultiple consciousness’2 and scrutinizing the lived experiences of women through the lens of racism, casteism, and religious biases. As legal theorists and activists, feminist lawyers evoke intersectional theory to reshape the idea of justice sifted through people’s anger, pain, their daily lives, and histories. It rethinks justice as concrete reality filtered through the substantive mesh to address oppression.

Cahn3 noted that “engaging in feminist litigation involves feminist lawyering on feminist issues.” In a patriarchal society, feminist litigation involves dealing with the larger interconnected issues which are essential to meet broader feminist visions. Feminist lawyers, as reformers, are not only concerned about the outcomes of the litigation, but they seek to alter the unfair systems. They question the unjust norms within and outside the courtrooms, asking the law, courts, and society to be humane and gender sensitive. Feminist lawyering is based on a collaborative, multi-disciplinary approach that searches for creative ways to challenge intensely entrenched structural discrimination. It broadly sifts the concrete realities of women’s lives through the framework of substantive justice to address oppression.

The purpose of feminist lawyering is to dismantle social hierarchies and eliminate inequalities by critically examining the way domination works. Moreover, the law as a space to challenge domination has been occupied by privileged men for ages. A few men occupy the position of authority and make laws and policies for women, implement rules, and execute the law without creating space for women to decide for themselves4 . To overcome these discrepancies, women, as citizens, lawyers, judges, activists, and women’s organizations, are demanding justice and equality. For decades, feminist lawyering has challenged this male-dominated, elite paradigm to create a space that facilitates access to justice for all by deploying a feminist understanding.

In the West, several theories have been propounded by feminist theorists to draw linkages
between feminist law-making, legal theory, and the profession to show how these are interrelated and the way these are making an impact on how law is practiced5. Four major schools of legal theory have evolved over the years. These include the formal equality theory, which argues that women should be treated equal to and the same as men; cultural feminist theory, which insists that law needs to take into account the differences’, between men and women; the dominance theory, which emphasizes the embedded structures of power and privileges; and the anti- essentialism approach, which points out thatfemale’ is not a single category but is a result of the intersection of race, class, ethnicity, or caste6. Most of the debates are shaped taking into account the unique experiences of women in terms of pregnancy and motherhood, as well as the harms women face, such as violence in the forms of domestic abuse, rape, sexual assaults, that occur due to patriarchal structures of power. These critical insights are shaping legal practice.

Scholars have deduced the relationship between the ways the law is practiced and how it asserts male-defined norms. For instance, Catharine Mackinnon7 opined that legal norms are defined by the male standards at the workplace against which the performance of all persons is measured, while women see legal situations through their feminist consciousness. She argued that feminist lawyers utilize the approach that `believe in women’s accounts of their lives’. Abrams8 distinguished between legal and feminist methods to describe that feminist lawyering has transformed ideas about gender justice and lawyering and has altered the legal system. West9 argued that the ethic of care is rooted in the female experiences of connection, emotions, and empathy that provide a distinct moral stance, which is necessary for the ethic of justice. Therefore, the feminist methods deploy women’s lived experiences and realities that are different from male-designed legal categories to address women’s subordination.

Dimensions of Feminist Lawyering

Many lawyers, activists, and organizations in India shy away from using the term feminist10. One of the common arguments raised is that it is a Western concept and unsuitable for the Indian context. However, this belief is outdated because, firstly, feminism is not a monolithic term. Even in the West, it has evolved over the decades where black, migrant natives, and other multiple groups of women have contributed to shades of feminism. Spivak11 argued that unlike Marxism, feminism is not defined by a single book’ but is based on the lived experiences of women. Moreover, in India, through their resistance, the feminists have mediated the culture to shape the broad understanding12.

Secondly, neither oppression nor lawyering function in isolation. Rather, feminist lawyering has developed as a response to patriarchal oppression. Thirdly, people in India are following global philosophies such as Marxism, socialism, capitalism, and so on. Many Western ideologies and terminologies are borrowed by scholars. Fourth, in the neoliberal, digitalized world, the line between thelocal’, national’, and theinternational’ is getting blurred over the years with the economic and structural transformations happening due to the increasing digital connectivity, cross-border migration, global trade, and many other factors. For instance, the #MeToo movement which started in the Western hemisphere and spread in India, shows how debates travel globally. Fifth, international human rights practices too have been making a mark in influencing the practices around the world and are being woven into the constitutions and legal systems of different countries. This language of rights is evoked by the feminist movements to demand entitlements for underprivileged groups. The international provisions dealing with the rights of women, such as the CEDAW, the Beijing Platform, the Millennium Development Goals, and the Sustainable Development Goals, have further opened a window where experts from different countries collaborate to refine the debates on women’s rights.

Sixth, in the legal field itself, due to decades of colonialism, several jurisprudence theories that originated in the West have found a place in Indian jurisprudence. Moreover, the Indian legalsystem is based on the enactments and interpretation of local customs and practices by the colonial rulers, while the Indian legal system was developed based on the Victorian morality that prevailed then13. Also, debates and discussions around the making of laws against Sati, widow remarriage, child marriage, the Age of Consent Bill, and many others were initiated during the colonial era, when the imperial rulers shaped the laws and policies.

Lastly, Indian feminist lawyers, since ages, have practiced feminism in their own ways. Even before independence, the unsurmountable struggle of women lawyers to enter the bar in colonial India has been documented. For instance, women lawyers such as Regina Guha14 , Sudhanshubala Hazra15 and Cornelia Sorabji during the early 1900s pushed the boundaries to claim their rightful place in the legal system and fought for women’s right to practice in the courts until April 1923, when the rules that barred women from practicing law were changed16. Further, during the making of the Constitution, fifteen women contributed during the debates in the Constituent Assembly17. In the post-independent nation, Dr. BR Ambedkar, MK Gandhi, and other lawyers have raised issues such as the Hindu Code Bill and various other laws18.

In independent India, various cases utilizing the constitutional provisions of equality, liberty, and social justice have been filed that challenge the discriminatory legal provisions and policies. Over the years, women confronted the embedded patriarchy, as evident from various cases from CB Muthamma v. Union of India19 to Nargesh Mirza’s case20 , Mary Roy21, Vishakha’s case22, Sabrimala matter23 and ABC v. State (NCT of Delhi)24, where they challenged centuries of subordination to demand substantive equality.

Therefore, feminist lawyering in India has shattered the sexist stereotypes and discriminatory attitudes that have existed and been propagated for generations. In fact, the years of advocacy by the feminist movement have compelled the Supreme Court to acknowledge the existence of gender stereotypes in courtrooms25. Feminist lawyering, while drawing a connection between different rights, has played a crucial role in achieving the goals of social justice by expanding the constitutional provisions26. Chief Justice Chandrachud, in a roundtable on Feminism in Practice: Feminist Lawyering and Feminist Judging in 2018, noted that the constitution itself is feminist and “to be really a feminist is to do what the constitution requires you to do27.”

Significant elements of feminist lawyering

Feminist lawyering requires a proper mix of enthusiasm from a fiery and passionate lawyer to battle for the cause of the oppressed, indignation at gross injustice, a strong sense of commitment with a dose of courage and conviction, the skills of pleading from a humane perspective, the abilities to link individual cases of derogation of rights with the larger structural oppression, besides interrogation and reinterpretation of the constitutional and legal provisions from the perspective of the oppressed. It entails methodological innovations to revise laws based on the lived realities of women. More importantly, sensitivity and empathy for disadvantaged are the key ingredients required to make a feminist lawyer. Aside from using academic jargon or asserting legal privileges, the role of a feminist lawyer is to enable the marginalized to speak for themselves, to preserve integrity and clients’ wellbeing, and to hold the androcentric state accountable. Feminist lawyering deploys a combination of legal theory, practice, action, and interventions, or praxis that requires professional as well as personal commitment.

Moreover, in situations of violence against women, as a feminist lawyer, one identifies the
client’s problem not as a personal but as a larger political issue, as `personal is political’28. This is because inequalities at a larger level affect a person within a family or a community. Though legal education asserts that a professional lawyer should not get emotionally involved in a client’s personal problem because it may cloud one’s neutral judgement29, in cases relating to violence, professional goals and personal commitments may get integrated because one needs to safeguard the interests of the client30. Also, a feminist lawyer seeks to address multi-dimensional issues such as helping the client with decision-making, counseling, assisting in criminal cases, seeking protection orders, custody orders, maintenance, and other related issues, and also, at times, may have to coordinate with NGOs assisting women with community development programs or women’s commissions. Several cases may require a comprehensive approach to empower women, challenge gender injustice, and break the cycle of continuous violence. The focus, therefore, is on survivor-centric justice and a victim-centered system.

Feminist versus traditional lawyering in the Indian context

The common law deals with the rights of parties involved in litigation where a lawyer appears for the injured party. By redressing the individual grievances or by expanding the scope of law to apply it to the given facts, a civil or criminal lawyer may be setting new models of legal analysis. Yet, the traditional lawyers work to protect the private interests of the parties; their goal is not public welfare, but in traditional litigation, the client’s interest is of paramount importance31. This form of lawyering is client-centered, reactive, and limited.

In contrast, feminist lawyering is based on a pro-active approach. Rather, it moves beyond
traditional litigation to critically analyze the law to connect it to everyday realities of women’s lives. It is not restricted to a traditional client-lawyer relationship or convincing the court of one side of the case, but it involves working for the cause of gender justice and finding an imagined alternative’32 with the vision of equality, inclusion, participation, and democracy. It is not only about demystifying the laws but also challenges common stereotypes and notions, and therefore, in its scope, it is beyond typical lawyering. As a reformer, a feminist lawyer utilizes legal tools to shape social institutions to ensure that they are sensitive and empathetic. Feminist lawyering, therefore, is reformulating the conventional methodologies of traditional lawyering.

Feminist lawyering entails monitoring and analyzing cases to address gender wrongs and ensuring that the laws are implemented with a framework to empower women. For instance, while discussing several cases such as that of Olga Tellis33, Hawker’s case34, Nandita Haksar explained that feminist lawyering implies shifting from a focus on charity to legal reform with the ultimate goal of legal transformation while putting an alternate version of development. It is therefore different from a reductionist approach to the legal system that reduces the facts to techno-legal questions. Away from focusing on a competitive approach that preferswinning a case’, feminist lawyering combines professional commitments to collaborative goals from a gender perspective. The parameters of success in such lawyering are not measured in terms of income or earnings, the size of the legal firm, or the number of cases a lawyer has won, but rather in terms of subtle measures such as achieving social change, effectiveness in terms of the impact on individual clients, peace, contentment, job satisfaction, contribution to the larger cause, impact on gender justice norms, enhanced feminist consciousness, increased social awareness, and more importantly, progressive transformations.

Using feminist tools, feminist lawyering examines and addresses the multiple dimensions of the problems to make constitutional and legal rights real and meaningful. For this purpose, it takes up strategic activities such as community organization, legal reforms35, providing legal aid, paralegal training, legal literacy, awareness building, educating and sensitizing citizens as well as policymakers and law enforcers36, raising critical consciousness37, influencing and shaping public opinion, strategizing for media outreach, fact-finding, research, reporting, mobilizing, negotiating policies, documentation, reporting abuse, monitoring the enforcement of laws and policies, class action or public interest litigation, designing social campaigns, and a range of similar activities depending upon the context. This includes working with the judiciary, police, and communities, as well as addressing policy and planning issues to respond to the ground level concerns. These strategies are applied using key features such as empathy, transparency, non- discrimination, equality, diversity, participation of those affected, and most importantly, respect for human dignity while providing services38. In other words, feminist lawyering counters the patriarchal version with an alternative or democratic model of development while preserving the voices and dignity of the client39. Feminist lawyering does not believe in compromising the larger politics for a short-term alternative of winning the case’40.

Feminist consciousness is being deployed to draw a connection between violence against women, curtail offensive practices, and reinforce feminist-inspired advocacy to positively transform society. For instance, Agnes41 portrayed how the demands made by the women’s movement regarding the making and implementation of laws pertaining to violence remained ineffective and have failed women while empowering the state because solutions were sought within the patriarchal framework rather than addressing the power imbalance. While drawing a distinction between the high-profile rape cases and the ordinary ones, she argued that a nuanced analysis is needed to understand the emerging trends in the judgments42.

In cases where one side is being victimized by those who are powerful, the lawyer needs to strategize and structure her lawyering based on evidence. Frequently, men in power file SLAPP suits against women to silence their voices43. In such anextremely adversarial atmosphere’, a feminist lawyer is supposed to be prepared to counter the backlash. For instance, in Rupen Deol Bajaj’s matter44, Bajaj was demonized by the media for raising the issue that is too `trivial against a man who was considered a national hero’ explained Indira Jaising, who stood with her in a long fight for justice 45 . Sixteen years later, in Priya Ramani’s case 46 , her lawyer, Rebecca John, explained how she has worked throughout to defend her client’s interest while also connecting it to the larger oppression of women at the workplace that has implications for the MeToo movement in India 47 . In 2022, Teesta Setalvad, who supported victims during Gujarat riots in 2002, faced charges and was arrested the day after the Supreme Court dismissed the petition filed by Zakia Jafari48. Recently, Bilkis Bano’s matter shows how feminist solidarities, at various levels and in different forms, become essential in the struggles for justice49.

Thus, feminist lawyering uses the gender lens to bring feminist analysis into courtrooms. It deals with a comprehensive framework of socioeconomic as well as civil and political rights, rather than reducing a problem to merely a litigation issue. A feminist lawyer interprets the realities of women’s lives to develops a political-legal program with the feminist methods, the legal methods and also that can be eclectic to empower the oppressed. The roles and demands of a feminist lawyer are neither fixed nor rigid, but these are derived from the desire to shape abstract rights into concrete realities and are envisioned by one’s commitments to empower the subjugated. Frequently, feminist lawyers have devised multiple methods in the realm of substantive law to expose the dynamics of power and to provide a comprehensive solution to the client’s problem.

Feminist lawyering demands affirmative actions

Theoretically, the law is premised on neutrality and objectivity. Practically, the legal system does not exist in a vacuum; it is not perfect, but it mirrors the patriarchal biases that exist in society. This contradiction affects its ability to provide justice in an unequal society. Justice, therefore,remained elusive because the social arrangement in which the courts and clients are situated are not neutral. Legal powers frequently serve the interests of powerful, and therefore, a lawyer has to question the neutrality of the law and the system50. Technically, to ensure justice, the survivors’ interests should remain central to the legal discourse, yet the legal system is so designed that in the courts, legal technicalities occupy the central place. Therefore, to rectify such odds, feminist lawyering strives to maintain legal objectivity from the perspective of the oppressed. Lawyering, therefore, is not about maintaining a neutral position in the face of injustice; it is about standing with the truth.

In situations where one side is being dominated and subjugated, feminist lawyering focuses on the survivor-centered approach instead of the court-centered or technical approach. While having an in-depth analysis of power dynamics, a feminist lawyer raises the voices of the marginalized, or, in other words, it tells the story from below. A feminist lawyer supports the cause of the oppressed by exposing how discriminatory laws and policies negatively impact marginalized groups. It involves experiential learning, which requires continuous interaction of theory and practice to seek social change. In other words, it is a form of legal realism where the law is used as a means to an end rather than an end in itself51. Being aware of the historical abuse of power to sustain conditions of domination, feminist lawyers embrace legalism as a tool of necessity to address injustice. Moreover, issues such as hunger, unemployment, illiteracy, and a lack of basic health and education facilities, are all caused by power imbalances that result in inadequate distribution and not by a dearth of resources. Assessing the context of reality of oppression and proposing non-neutral principles that demand affirmative actions becomes a compulsion in situations where power, resources, and decision-making abilities rest with a few.

Feminist lawyering entails challenging patriarchy

Feminist lawyering is neither about a man-versus-woman issue nor it is about demanding formal equality. In a hierarchical and multi-layered society, it is about raising questions and countering discriminatory patriarchal attitudes to demand justice. Feminist lawyering in a patriarchal society is about shattering the walls of misogyny and sexism that have been built and cemented over generations. It recognizes the fact that the justice system is tilted in the favor of the accused and against the victim, and therefore, it highlights the unequal power dynamics in relationships. Also, though the legal system is a guarantor of rights, justice is not unproblematic52. Rather, scholars have noted that law is a subversive site53. Despite its complications, feminist lawyers utilize the law as a site to challenge the dominance and assert women’s rights.

The challenges of feminist lawyering

Being in the male-dominated profession is not easy for a woman as a judge, a lawyer, or a
litigant to navigate the patriarchal legal system54. Many scholars have noted that courts are a hostile territory for women55. Social barriers prevent women’s entry into the legal profession56. Cases of sexual harassment are reported within the premises of the courts57. Some are simply brushed aside58. Misogyny and sexism are rampant. Systemic discrimination denies women lawyers vertical mobility. Elsewhere, Pierce59 observed that double standards and sexist attitudes exist in law firms to make women invisible. In Indian situations too, female lawyers face similar dilemmas of competing with aggressive male litigators on a daily basis. Some scholars suggested that women’s lawyering style is different because they may not prefer adversarial modes of practice that are competitive but may prefer collaborative lawyering60. The visible and invisible glass ceilings exist at the workplace.

The challenges for feminist lawyering are multiple, where they need to create a space and assert themselves in the male-dominated legal arena. For a feminist lawyer, it is essential to challenge the discriminatory prejudices, and biases that exist in society and operate in everyday lives – within families, communities, and the legal system itself. The stereotypes relating to gender roles explain why women abandon their careers during their prime years61.

Moreover, feminist lawyering involves loads of unspectacular, slow, and steady work, and at times, it remains unpaid or lowly paid, painful legwork involves running around in the trial courts, which may be the exact opposite of the desires of an aspiring professional to earn quick money in neoliberal times. In times when success is shaped by cut-throat competition, feminist lawyering combines personal commitments to professional goals with a feminist vision to represent wider interests. Other issues range from a lack of resources while working with poor clients to the attitudes of court staff and male lawyers toward women62. Despite these complications, feminist lawyering remains an interesting field where lawyers are transforming the law and society around them.

Using legal imagination to create a just and caring society

“The foundation of future feminist struggle must be solidly based on a recognition of the need to eradicate the underlying cultural basis and causes of sexism and other forms of group oppression. Without challenging and changing these philosophical structures, no feminist reform will have a long-range impact”63.

Bell Hooks, 1984, p. 31

Feminist lawyering in patriarchal society imagines an oppression-less world. It involves putting laws, facts, human rights, and social values together to see a violation of rights as a legal problem that requires a just solution. Feminist understanding recognizes the differences between the dominant and the dominated and strive to eliminate the patterns of domination. It is a movement to end marginalization and subjugation by dismantling social hierarchies to transform unequal power structures with tools that involve not only litigation but other strategies at the larger level to make law and society gender sensitive. Feminist lawyering entails a constant mechanism to pursue constitutional objectives and engage with the law in terms of ethics and morality. The aim of feminist lawyering is to end the system of domination and the interrelatedness of sex, race, class, and caste-based oppression. Fired with zeal for justice, feminist lawyering expands the legal imagination to enhance the scope of rights and justice beyond the traditional categories to include not only the schism of civil and political rights but also social and economic rights within the prism of the right to life with dignity for all human beings. Even in dark times, feminist lawyering believes in the power of ordinary people to strive for change. It envisions positive law reforms that enable and facilitate the participation of women in political and legal processes. It imagines an oppression free world, and challenges biased practices to create spaces for alternative views. Feminist lawyering manifests affirmative rightsto positively impact the everyday lives of common citizens. Therefore, feminist lawyering is seen in a broader context beyond litigation to include making, enforcing, and monitoring the law
and policies from a feminist point of view to uphold the values of inclusion, diversity, justice, substantive equality, and liberty as premised in the constitution. It is their spirit of defiance that strengthens the struggle against all forms of tyranny, feminist lawyering provides optimism to emancipate society. Utilizing broader thinking, feminist lawyers mold legal subjectivity to expand the scope of just citizenship and forge new imaginations for a fair and caring world.

Adv Dr. Shalu Nigam is a feminist advocate, researcher and an activist working at the intersection of gender, law, governance, and human rights. Currently, she is a senior visiting fellow at IMPRI.

References

1. This essay is based on the author’s first-hand experiences as an advocate, researcher and activist working at the intersection of gender, law, governance and human rights over decades. This is a revised version of the paper written in 2022; available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4251727
2. Matsuda MJ (1992) When the first quail calls: Multiple consciousness as jurisprudential model, Women’s Rights Law Reporter, 14:213
3. Cahn Naomi R (1991) Defining feminist Litigation, Harvard Law Journal 14(1): 1
4. Nigam S (2021) Domestic Violence Law in India: Myth and Misogyny, Routledge, Delhi
5. Bowman Cynthia Grant and Elizabeth M Schneider (1998) Feminist Legal Theory, Feminist Law Making and the Legal Profession, Fordham Law Review, 67(2) 249-271
6. Becker ME. CG Bowman and M Torrey (1993) Cases and Materials on Feminist Jurisprudence: Taking Women Seriously, West Publishing Company, USA.
7. Mackinnon Catherine (1987) Feminism Unmodified: Discourses on Life and Law, Harvard University Press, Cambridge
8. Abrams Kathryn (1991) Feminist Lawyering and Legal Method, Law and Social Enquiry, 16(2) 373-404
9. West Robin (1997) Caring for justice, New York University Press, New York
10. Kishwar Madhu (1991) Why I Do Not Call Myself a Feminist, Manushi 61:2-8.
11. Spivak GC (2010) A lecture on Situating Feminism at Berkley University
    https://www.youtube.com/watch?v=garPdV7U3fQ
12. Ghosal Sarbani Guha (2005) Major Trends of Feminism in India, The Indian Journal of Political Science, 66(4)793-812
13. Chan Wing-Cheong, Barry Wright and Stanley Yeo (2011) Codification, Macaulay and the Indian Penal Code: The Legacy and Modern Challenges of Criminal Law Reform, Routledge, New York
14. Regina Guha, In re, ILR (1917) 44 Cal 290, 29-08-1916
15. Sudhansu Bala Hazra, ILR (1922) 1 Pat 104, 28-11-1921
16. Sen Jhuma (2019) The Indian Women who Fought their Way into the Legal Profession, The Wire, February 13,
    https://thewire.in/law/women-lawyers-history-india
17. Scaria Mary and Shalu Nigam (2016) The Founding Mothers: 15 Women Architect of the Indian Constitution, Media House, Delhi
18. Kumar Radha (1993) History of Doing: An Illustrated Account of Movement of Women’s Rights and Feminism in India, Kali for Women, Delhi
19. CB Muthamma v Union of India, 1979 AIR 1868
20. Air India v Nargesh Mirza AIR 1981 SC 1829
21. Mary Roy v State of Kerala AIR 1986 SC 1011
22. Vishakha v State of Rajasthan AIR 1997 SC 3011
23. India Young Lawyers Association v The State of Kerala 2018
24. ABC v State (NCT of Delhi) 2015 SCC Online SC 609
25. Nigam Shalu (2023) Combating everyday gender stereotypes in the courtrooms, countercurrents.org, October 5,
    https://countercurrents.org/2023/10/combating-everyday-gender-stereotypes-in-the-courtrooms/
26. Nair A and M Katheria (2020) Senior Advocates Indira Jaising and Nitya Ramakrishnan called upon feminist lawyers to break stereotypes and challenge power structures, TheLeaflet.in, November 8,
    https://www.theleaflet.in/senior-advocates-indira-jaising-and-nitya-ramakrishnan-call-upon-feminist-lawyers-to-break-stereotypes-and-challenge-power-structures/#
27. Jain Mehal (2018) Constitution itself is Feminist, Justice Chandrahud on Transformative Constitution and Feminism, TheLivelaw.com October 7, https://www.livelaw.in/constitution-itself-is-feminist-justice-chandrachud-
    on-transformative-constitution-feminism/
28. Schneider EM (1986) The Dialectic of Rights and Politics: Perspectives for Women’s Movement, New York Law Review, 61, 589.
29. Shalleck Ann (1993) Constructions of the Clients within Legal Education, Stanford Law Review, 45, 1739-52.
30. Mahoney MR (1991) Legal image of battered women: Redefining the issue of separation, Michigan Law Review, 90
31. Abel Richard L (1985) Law without politics: Legal aid under advanced capitalism, UCLA Law Review 32:474-617
32. Lobel Jules (1995) Loser, Fools and Prophet: Justice as a struggle, Cornell Law Review, 80: 1331-33
33. Olga Tellis v Bombay Municipal Corporation, 1986 AIR 180
34. Bombay Hawkers’ Union v Bombay Municipal Corporation, 1985 AIR 1206
35. Rayaprol, A. and S Ray (2010). Understanding Gender Justice: Perceptions of Lawyers in India. Indian Journal of Gender Studies, 17(3), 335-363.
36. Nigam S (2008) Legal Literacy: A Tool for Empowerment, Social Action, 58(2) 216-226
37. Freire Paulo (1970) Pedagogy of the Oppressed, used the term conscientization which refers to “learning to perceive social, political and economic considerations and to take action against oppressive elements of reality”,
38. Aiken Jane Harris (1997) Striving to teach `Justice, Fairness and Morality’, Clinical Law Review, 1(4) 11
39. Chandra A, J Sen and R Chaudhary (2021) Introduction: The Indian Feminist Judgement Project, Indian Law Review 5(3) 261-264
40. Partners for Law in Development (2000) Role of Law in Development: Workshop Report 5-8 April held at Convention Center, Jamia Hamdard organized jointly by PLD and Astha Sansthan, Rajasthan
    //efaidnbmnnnibpcajpcglclefindmkaj/viewer.html?pdfurl=https%3A%2F%2Ffeministlawarchives.pldindia.org%2Fwp-content%2Fuploads%2Fmerged_document_4.pdf
41. Agnes Flavia (1992) Protecting Women Against Violence? Review of a Decade of Legislation, 1980-89, Economic and Political Weekly, 27(17) WS19-33
42. Agnes Flavia (2015) Not by Stricter law alone, The Indian Express, October 27,
    https://indianexpress.com/article/opinion/columns/not-by-a-stricter-law-alone/
43. Nigam Shalu (2021) Strategic Law Suits Against Public Participation in India: Why the neutrality principle of law is not working, countercurrents.org, July 15, https://countercurrents.org/2021/07/strategic-law-suits-against-public-
    participation-in-india-why-the-neutrality-principle-of-law-not-working/
44. Rupen Deol Bajaj v KPS Gill 1996 AIR 309
45. Jaising Indira (2021) Priya Ramani’s Judgement Vindicate the #MeToo Movement, TheLeaflet.in
    https://www.indirajaising.com/post/priya-ramani-judgement-vindicates-the-metoo-movement
46. Complaint case No. 05/2019 District court, Delhi MJ Akbar versus Priya Ramani, decided on 17.02.21
47. Bhandare Namita (2021) Workplace Sexual Harassment Law Needs Overhaul, IndiaSpend.com, February 20,
    https://www.indiaspend.com/indiaspend-interviews/workplace-sexual-harassment-law-needs-overhaul-729277
48. Kar Angshuman (2022) Teesta Setalvad case: Facts sometimes are as strange as fiction, OutlookIndia.com,
    September 24, https://www.outlookindia.com/national/why-charge-sheet-and-allegations-against-teesta-setalvad-remain-sketchy-news-225488
49. Hasan Zoya (2024) Bilkis Bano’s Long Struggle for Justice, The Wire, January 16, https://thewire.in/rights/bilkis-banos-long-struggle-for-justice#:
50. Jaising Indira (2022) Feminist Lawyering: The Other Side of Independent Movement, TheLeaflet.in, March 15,
    https://theleaflet.in/feminist-lawyering-the-other-side-of-the-independence-movement/
51. Barry Margaret Martin et al (2000) Clinical Legal Education for this Millennium: The Third Wave, Clinical Law Review, 7(1) 59-60
52. Nigam Shalu (2019) Women and Domestic Violence Law in India: A Quest for Justice, Routledge, Delhi
53. Kapur R and B Cossman (1996) Subversive Sites: Feminists Engagement with the Law in India, Sage, Delhi
54. Mishra Soni (2016) I was sexually harassed in the corridors of Supreme court, TheWeek.in, November 13,
    https://www.theweek.in/theweek/cover/interview-indira-jaising-senior-lawyer.html?=1342504555784283727
55. Singh Kirti (2013) Separated and Divorced Women in India: Economic Rights and Entitlements. Sage Publications, Delhi
56. Mishra SK (2015) Women in Indian Courts of Law: A Study of Women Legal Professionals in the District Court of Lucknow, Uttar Pradesh, India, Openedition.org, December 18,
    https://journals.openedition.org/eces/1976
57. The Wire (2021) SC closes conspiracy cases initiated after sexual harassment allegation against Justice Gogoi, February 18,
    https://thewire.in/law/supreme-court-conspiracy-case-closed-gogoi-sexual-harassment
58. Hindustan Times (2013) Law intern sexual harassment case: Ex-judge still on Kolkata university rolls, November 30,
    https://www.hindustantimes.com/india/law-intern-sexual-harassment-case-ex-judge-still-on-kolkata-university-rolls/story-OiLOKbFheXfdcHzgWE0PLI.html
59. Pierce JL (1996) Gender Trials: Emotional Lives in contemporary Law Firms, University of California Press, California
60. Carrie Menkel-Meadow (1985) Portia in a different voice: Speculation of women’s lawyering process, Berkley Women’s Law Journal 1: 39-63
61. Blau Francine D. and Lawrence M. Kahn (2016) The Gender Wage Gap: Extent, Trends, and Explanations 12, National Bureau of Economic Research, Working Paper No. 21913 http://www.nber.org/papers/w21913
    [https://perma.cc/R5N9-DK2W
62. Outlook (2020) Women Lawyers are hampered by Systemic discrimination and Gender Barriers: Justice Gita Mittal, November 20, https://www.outlookindia.com/newsscroll/women-lawyers-are-hampered-by-systemic-discrimination-and-gender-barriersjustice-gita-mittal/1983827
63. Bell Hooks (1984) Feminist Theory: From Margins to center, South End Press, USA

Ending Online Violence Against Women in India: Calling for an Inclusive, Comprehensive, and Gender-Sensitive Law and Policy Framework

 The revolution in information and communication technology has provided a digital space that is easy to access, cost-effective, and democratic; however, over the decades, cyberspace has also witnessed the increasing menace of cybercrime. On the one hand, when technology is enhancing life, enabling agency, and facilitating capabilities, at the same time, the inequalities, discrimination, hierarchies, misogyny, sexism, and patriarchy in the physical world are also being replicated, transferred, reshaped, and reconstructed in the virtual world. The available data and everyday experiences show that the digital world is alienating and doubly discriminating against women in major ways. Firstly, through the prevalence of the digital divide, where those on the margins, including women, are denied access to the technology; and secondly, violence against women in the digital world is making a devastating impact in terms of their physical, emotional, mental, and social health. 

Despite these risks, women have found different ways to negotiate online to raise their voices and reclaim their rights. However, the matrix of laws and policies lags behind the pace compared to the expansion of technology and the increasing incidences of cybercrime. The legal and policy framework that exist in India is insufficient to deal with the increasing cyberviolence against women or to end the online culture of misogyny. While reflecting on the available secondary data, this work suggests reconsidering the connection between laws, policies, and cyberspaces from a feminist perspective to prevent and eliminate all forms of online violence against women. It recommends a specific, gender-sensitive, and a comprehensive legal and policy framework to deal with online violence. Inclusive policies to curb the digital divide and steps to create a robust mechanism to prevent and end gender-based violence may go a long way towards creating a safe, digitally equal and democratic world.

The Positive Impact of Technology 

Technology has changed life in many ways. The internet is a powerful medium that has opened up a democratic space. It has interwoven cultures where technology is being used to gain information, acquire knowledge, share experiences, voice opinions, and exercise freedom of speech. The digital world has opened doors to connect, learn, and consolidate businesses, forge relationships, share information and knowledge, and advance justice. The advent of social media platforms such as Facebook, Twitter, and Instagram have revolutionized the human interactions. Digital platforms have provided a space where women, as netizens, can connect with local politics, learn from international debates, and expand their outreach to strengthen feminist activism. Online platforms are utilized by women to access technology to reclaim their rights, express solidarity, disrupt stereotypical gender norms, and strengthen feminist activism. 

However, with the increasing use of digital technology in day-to-day lives, the ease of performing various tasks as well as the risk of cyberviolence are simultaneously expanding.1 Online technology has an empowering potential for expressing opinions and asserting agency, yet there are also dangers lurking in the digital arena. The cyberspace is, in fact, reiterating, amplifying, and magnifying the unequal gender relations. The neoliberal desires that shaped internet technology favor profit and monetization and, therefore, prioritize toxic and harmful contents over values such as safety, public interests, or democratic norms.2 Old patterns of discrimination and violence have filtered through the web of a wireless, well-knitted world and have taken on a new shape, reconstructing and reshaping themselves into newer and harsher forms while highlighting the dark realities amidst the shining streaks of cyberspace. 

The double discrimination against women in cyberspace has manifested in overt and covert forms, ranging from the denial of the benefits of the technologies to the poor and marginalized to the harsh forms of violence and the culture of misogyny exhibited on the online platforms. The existing legal mechanisms and policies have failed to keep pace with the expanding technology. However, at the same time, several women have creatively used the online platforms to voice their concerns and raise significant issues, despite the fact that many face cyberviolence and are victimized in various ways. This paradox is reflected in the #MeToo movement, where social media has been used to raise voices against sexual harassment and to name and shame the perpetrators of violence3. Also, the feminist engagement during the Nirbhaya tragedy depicts the failure of the legal system to ensure safety, yet it has simultaneously deployed digital technology as a tool to develop protest strategies to reform the rape law.4 The need, therefore, is to draw a connection between technology, laws, policies, and women’s rights to imagine a robust comprehensive mechanism that could prevent and eliminate cybercrimes against women to foster a safe and inclusive digital world.  

The Great Digital Divide: Discriminating Against Women 

Data shows that 69.4 percent (5.6 billion) of the world population uses mobile phones, 66 percent (5.35 billion) connected to the internet, and 62.3 percent (5 billion) uses social media at the beginning of 2024.5 However, the transformational potential of internet access is not equally distributed. Of the remaining unconnected people (2.7 billion), the majority are women and girls.6 The digital gender gap continues to expand in developing countries, creating a specific need to support digital gender equality. Another set of data shows that globally, in 2022, 62 percent men used the Internet, compared with 57 percent women7. Only 19 percent of women in the Least Developed Countries remained connected to the internet in 2020, compared to 86 percent in the developed world8.​ 

In India, 680 million people remained offline and unconnected9. The National Family Health Survey 2019-21 (NFHS-5) shows that digital space is male-dominated. Only 33 percent of women use the internet compared to 57 percent of men10. In terms of mobile phone usage, the Mobile Gender Gap Report 2023 by GSMA11 indicates that 19 percent fewer women use mobile phones as compared to men. It stated that a total of 61 percent of women in low- and middle-income countries use mobile internet, and 81 percent own a mobile phone. In India, 40 percent of women are less likely to own a mobile phone as compared to men in 2022. Also, mobile internet awareness is particularly low in India. 

Pre-existing socio-economic inequalities in terms of access to basic resources that exist in the physical world are reiterated in the virtual world to alienate those at the margins. In fact, participation in the digital world is affected by factors such as affordability, income, gendered norms, digital literacy, and geographical location, including rural-urban differentials12. For instance, the Oxfam Report highlights that only 31 percent of the rural population could access the internet as compared to 67 percent of those residing in urban areas. 

Moreover, during the pandemic, digital divide has resulted in the denial of the fundamental right to education to children from economically weaker sections of society13. Also, the right to food is denied in many cases because of the non-linkage of their ration card to Aadhar14. In short, linking technology with basic human rights has resulted in the exclusion  of the marginalized, especially girls and women15. Or, as Foucault stated, neoliberal governmentality has ignored the experiences of subalterns to subjugate individuals and control population16. In other words, gender-based hierarchies, inequalities, discrimination, and violence manifest in various ways in digital spaces in newer, multiple, and harsher forms.

Cyberviolence Against Women 

Cyberviolence is a gendered phenomenon where continued sexism permeates the online space and reflects a larger culture of discrimination that devalues women17. Cyberviolence against women is defined as the online perpetration of gender-based harm and abuse through digital and technological means. Other terms used to describe online harms are cyber abuse, online victimization, cyber aggression, and technology-facilitated violence. On violence encompasses misogynistic speech and efforts to silence and discredit women online, including threats of offline violence. Women are subjected to hateful comments on social media for expressing their thoughts. Hostile cultures of sexism and misogyny in digital spaces are depriving women of the benefits of technology.

Cyber harassment also include trolling women for their opinions and views18, gender-based hate speeches, image-based abuse, blackmailing, threats, fraud, sharing of deep fake images, revenge pornography to shame the victim, harassment, insults, obscene messages, bullying, blackmailing, rape threats, cyberstalking, revenge porn, sextortion, cyber pornography, cybersex trafficking, spreading of hate and misogyny, morphing images, publishing sexually explicit images, publicly humiliating women, negatively portraying them, reiterating conventional stereotypes to devalue women, defamation, moral policing, slut shaming, breach of the right to privacy, identity theft and economic violence, repression by the state and the non-state actors, and other forms of violence19. Targeting women’s bodies and sexuality to control and silence them is a form of abuse that is taking place in the virtual world. The weaponization and politicization of social media are further inciting online communal tension in an organized way to target particular sections of society20. Some of these forms of violence magnified during the pandemic-induced lockdown across the world and inflicted serious damage. 

Digital violence experienced by women forms a continuum of violence that is a manifestation of patriarchy and misogyny and an extension of a larger systemic and structural violence. Experiences of online violence are not separated from the cultural and social context. The boundaries between online and offline violence are often blurred in a deeply patriarchal society. On the one hand, the misogynist society lays much emphasis on the purity and chastity of women; at the same time, the female body is objectified and commodified in media, entertainment, movies, television, and by market forces. A woman’s body becomes a battlefield among the contesting ideologies, myths, and cultural practices. Frequently, women are abused online merely because of their presence in the digital space. Just as the visibility of a woman is not tolerated in the male-dominated public space, similarly, her active existence is threatened in the virtual space and seen as an act of transgression of patriarchal boundaries. 

The Impact of Cyberviolence on Women

Digital violence violates basic human rights guaranteed under national and international provisions, including the CEDAW. Scholars maintain that various forms of cyberviolence have a negative short- and long-term impact on an individual’s psychological state, physical condition, cultural or social engagement including an individual’s economic and social life. A victim of online harassment experiences shame, exclusion, and ostracization21. Continuous cyberviolence may create a system of fear and self-censorship by which male dominance is maintained and perpetuated. Survivors of cyber abuse may withdraw from online spaces due to fear, depression, anxiety, trauma, and self-harm22. The cumulative effects of cyberviolence affect the health and wellbeing of women and girls and pose serious economic, social, and political harm. Digital violence can limit the online participation of women, thus increasing the gender divide and limiting women’s voices. More specifically, in the patriarchal societies in South Asia, with increasing vulnerabilities and lesser available legal remedies, many women are facing higher risks of victimization23.

Legal Protection Across the Globe to Protect Women and Children from Cyberviolence 

Cybercrime is different than an ordinary crime because here the perpetrator is hidden behind the screen when he commits an illegal act. Moreover, any stranger can act anonymously using a range of devices, including phones, laptops, and computers; therefore, identifying the perpetrator may involve a huge challenge. The anonymity and distance in the digital world allow the perpetrators to easily violate ethical and legal norms. Also, the technology being opaque and remote, it poses a daunting challenge to crime prevention and law enforcement. Further, cybercrime is a transnational crime; therefore, territorial jurisdiction raises concerns. The relative ease of the use of the internet, accessibility, affordability, and reach across geographical boundaries have led to an increase in online crimes24. The women are, therefore, facing newer and harsher forms of violence in the digital space. 

In its recent report, the World Bank observed that only 30 percent of countries provide legal protection against cyber harassment, which implies that only 47 percent of women receive legal protection25. Globally, 53 out of 190 economies have imposed criminal penalties for offences relating to cyber harassment, and 19 have specified a definite procedure to deal with such cases26. The laws enacted by South Africa, Nigeria, and Uganda have elaborately define cyber harassment and provide protection against cyberbullying. Also, several European countries are addressing cybercrimes through general legal provisions while others are enacting new laws and adopting specific provisions, some of which are gender-neutral27. In the USA, the law prohibits child pornography, sexual exploitation and abuse of children28. Hence, it may be said that limited efforts are made to specifically address online violence against women and children across the globe. While developing and expanding technology, no emphasis is laid on assessing its impacts on human lives or to protect the vulnerable from the harms it may cause.

The Legal Matrix Regulating Cybercrimes Against Women in India

Cybercrimes against women have surged alarmingly over the past few years. The report by the National Crime Record Bureau released in December 2023 shows that there has been an 11 percent rise in the number of incidents reported in 2022 as compared to those reported in 2021. During the pandemic, as the increase in incidences of violence against women and children in homes was reported, the nature and scope of cybercrime also expanded29. With the increasing use of mobiles, laptops, computers, smartphones, and other devices for education, leisure, online learning, financial transactions, and work purposes, the rate of cyber violence also grew. 

The legal matrix to deal with cybercrimes in India is contained in the Indian Penal Code (IPC), or the Information Technology Act, (IT Act) 2000. No specific law is enacted to address cyberviolence against women. Section 354A, IPC focuses on sexual harassment and penalizes a man for committing acts such as demanding a sexual favor from a woman, showing pornography against her will, and making sexually colored remarks. Section 354C, IPC, penalizes voyeurism, which involves capturing or disseminating images of a woman engaged in a private act without her consent. Section 354D, IPC, addresses the offense of stalking, including cyberstalking, and penalizes acts such as a person monitoring women’s activities on the internet, email, or other electronic platforms. Other provisions in the IPC, such as those dealing with criminal intimidation, criminal defamation, insulting the modesty of women, cheating, and extortion maybe evoked when required30. 

The IT Act addresses offenses such as hacking, tampering, breach of privacy and confidentiality, publishing false digital signatures, cyber fraud, forgery of electronic records, email spoofing, sending threatening messages by email, among others. The rules made in 2013 establish a Computer Emergency Response Team as an administrative agency responsible for collecting, analyzing, and disseminating data about security incidents. Rules made in 2022 amend the cyber security incident reporting obligations. Further, Section 66C of the IT Act penalizes identity theft. Under this section, using another person’s password or electronic signature is construed as a crime. Section 66E punishes the violation of a person’s privacy. Section 67A prohibits the publication, transmission, and causing transmission of obscene content. Section 72 describes penalties for breaches of confidentiality and privacy. The IT Act, therefore, provides a piecemeal approach and has no specific provisions to address gender-specific crimes.

Further, laws such as the Protection of Sexual Harassment Act, 2013, which recognizes the harassment of women at the workplace, the POCSO Act, 2012, which regulates the sexual offences committed against children, and the Indecent Representation of Women (Prohibition) Act, 1986, which regulates the portrayal of women in advertisements, publications, and other means may be applied in cases relating to online violence. However, there are challenges in terms of the enforcement of these laws. For instance, the Indecent Representation of Women Act predominately emphasizes protecting public morality rather than upholding women’s safety. Moreover, despite the increasing cybercrimes against women, no specific provisions have been enacted to deal with the altering situation.

National Cyber Security Policy 2023 

The National Cyber Security Policy, 2013 was formulated with the vision `to build a secure and resilient cyberspace for citizens, businesses, and government’. Its aim is to protect information and infrastructure and respond to cyber threats. The new policy for 2023 safeguards establishes and strengthens the capabilities to respond to cyber threats, minimize vulnerabilities, and prevent the attacks of malware31. The key objectives of this policy are to facilitate compliance with cyber security mechanisms and monitoring of cybercrimes. However, this policy needs to be interrogated from a feminist perspective to ensure that it eliminates online violence and empowers women users of technology. 

The Cyber Crime Prevention against Women and Children (CCPWC) scheme was launched in 2018 to develop measures to handle cybercrimes against women and children in India32. The CCPWC conducts awareness programs, set up forensic labs, analyze cybercrime report and report criminal acts. However, the National Commission for Women has suggested several additional measures, such as a special online women-specific crime reporting unit, monitoring online crimes, strengthening the investigation, and capacity building. The National Cybercrime Reporting Portal33 enables a person to report crimes against women and children anonymously through an online reporting platform. Also, I4C has been established as a nodal body to curb cybercrime34. With reference to increasing cybercrime against women, the impact of these policies at the ground level is not visible as yet. 

Moreover, in 2015, the NGO Prajwala wrote a letter to the Supreme Court raising concerns about videos depicting rape, gangrape, and pornography being circulated on online platforms35. Based on this letter, notices were issued to Google, Microsoft, Yahoo, Facebook, and WhatsApp. A committee was constituted on the directions of the Court in March 2017 to examine the technological solutions to protect the identity and reputation of victims and prevent the circulation of such videos in the public interest36. The Committee agreed to the need for creating a Central Reporting Mechanism, to strengthen law-enforcement. The onus is laid on companies to provide technical support and assist in capacity building of the law-enforcement agencies37. The Court directed the enforcement of the provisions of the Information Technology (Intermediary Guidelines and Digital Media Ethics Codes) Rules, 202138. These Guidelines provide a mechanism for due diligence to be observed by the social media intermediaries to protect the harm to a child and invasion of privacy39. Also, a grievance mechanism is being put in place to resolve complaints in cases a person is harassed because of her gender40. However, the measures to address the digital divide remained absent. Also, much more needs to be done in terms of policy revision from a feminist perspective to ensure that online cyberviolence against women is completely eliminated. 

Existing Gaps in the Policies and Legislation

The analysis shows that the existing law and policy framework has failed to take into account the ground realities of the situation of women facing violence online. The paternalist approach followed by law-enforcement and law-making agencies focuses on morality and has failed to consider the concerns relating to the safety of women and children online. In fact, the recent socio-legal discourse which emerged after a viral video of women playing Holi inside the metro focuses on morality versus vulgarity while ignoring the online safety aspects and depicts the insensitivity of society towards digital gender-based violence41. Also, the emphasis on gender neutrality has negated the impacts of gender-based harms. Therefore, specific provisions are required to address the unique needs of women survivors and victims of online violence. 

Another loophole exists in the narrow definition of a violation of privacy under the IT Act. It only encompasses the transmission, publication, or capture of an ‘image of a private area of the body’ when more ways to violate one’s online privacy exist. Moreover, the law is centered around the concept of consent. While dealing with cybercrimes against women, the difficulty lies in proving whether victims consent to the publication of unwanted images. The Digital Personal Data Protection Act, 2023 is riddled42 with43 controversies44. The risks emerged with the advent of deepfake and AI breaching personal data, regulations become vital to protect an individual’s rights45. 

Further, the online platforms commodify the personal information of users by data mining. Research on the algorithms used by digital platforms reveals how racism and misogynist stereotypes are perpetuated46. Yet, the law has not addressed this issue. The terms and conditions regarding how these companies operate are frequently opaque, and users often remain unaware of the ways their privacy is compromised. Legally, the mechanism of accountability for the state and non-state actors in cases of cybercrimes against women is not clear. Additionally, the surveillance by the state and non-state actors and similar crimes are not taken into consideration while making the law. For instance, a blatant violation of data security occurred when “Bulli Bai” and “Sulli Deals”, fake online auctions, that took place where women from a particular community were targeted and attacked47. Hence, checks and balances are important to deal with the cases of online harassment. Besides, with increasing digitalization, many apps have emerged to protect women. Most of these are based on a paternalist approach rather than ensuring the online safety of users.  

Furthermore, delay in getting justice, low conviction rates, lack of awareness of the legal procedure, absence of digital and legal literacy, difficulties in accessing justice, dwindling faith in the law, fear of engaging with the system, gender stereotypes in courtrooms48, stigma, fear of defamation, and fear of retaliation all serve as barriers to responding to online violence against women. Several studies show that the police are not trained enough to comprehend and implement the nuances of technical laws49. For instance, Section 66A of the IT Act has been stuck down in Shreya Singhal v Union of India50. However, the police continued to book the cases under this provision. Training and sensitization remain a major challenge. Law-enforcement in the field of cybercrimes needs to be strengthened. 

Women’s Agency and Empowerment in Digital Spaces 

Digital space is a powerful medium where women are sharing their experiences and concerns. It serves as a counterspace to disclose gender-based violence and provides a political platform to counter misogyny. The technology has provided an alternate space for progressive advancement to a woman where she may disclose her violent experience, seek validation, find empathy, build solidarity, voice opinions, and hold the perpetrator accountable for their wrongs. In the dark ages, when the abusers abuse the social media as a double-edged sword to assault the victims, and then posting the photos and videos online to re-victimize the victims through public shaming and humiliation while adding insults to the injury, the technology is also used innovatively by women to engage in activism. 

Also, women have adopted a combination of both legal and nonformal strategies to negotiate spaces and respond to violence in the cyberworld. The nonformal strategies include disengaging from platforms, using different online names, ignoring, blocking, or directly confronting the abuser, reporting the offensive comments, finding support and developing solidarity online, organizing collectively as happened during the Nirbhaya protests, and naming and shaming the perpetrator as depicted by the #MeToo movement. Also, several initiatives, such as Take Back the Tech, have been launched to draw a connection between online gender-based violence, technology, and to promote digital safety.

Digital space, therefore, is seen as a site to contest marginality and negotiate the dominant patriarchal culture. For instance, Breakthrough India released a feminist remix of a popular Bollywood song that interrogates everyday sexism and biases. Later, the women in the video were targeted for simply being themselves and for asserting their agency51. However, such harassment could not deter women to imagine and organize online protests creatively. This is illustrated, when in response to the demonic invocation of sexism by Sri Ram Sene in Mangalore in 2009, a conservative right-wing gang which declared that the presence of women in public places would not be tolerated, a consortium of `loose, pub-going, and forward women’ was formed on Facebook to discuss the questions relating to violence against women and safety52. This group, by building online solidarity, mobilized people across the country to initiate the Pink Chaddi (underwear) campaign to assert that women’s bodies are not objects that can be owned or controlled by men. Love Sena (or the love brigade) was formed to collect pink underwear to send it to the headquarters of Sri Ram Sene to playfully counter the misogyny53. Many such feminist campaigns have altered the digital landscape and have succeeded in initiating a debate around persisting misogyny. Moreover, despite facing backlash, SLAPP suits54, or defamation charges55, women have persisted to seek justice56. Such actions indicate tremendous possibilities in the cyberspace to advance progressive causes. The need is therefore, to ensure safe online spaces free from fear of violence. 

Calling for a Gender-Sensitive Law and Policy Framework to Deal with Cybercrimes 

Technology occupies a significant role in combating gender violence and achieving the goals of gender justice. However, at the same time, the technology is being weaponized and used as a tool to perpetrate violence against women. Therefore, the role of the law and policies becomes crucial in addressing and responding to cybercrimes against women. The Sustainable Development Goals 2030, specifically focus on preventing and eliminating all forms of violence against women and girls. The Special Rapporteur on Online Violence Against Women57 precisely suggested that the national law dealing with cybercrimes against women is essential. Enacting laws provides avenues for redressing grievances, sends a clear message that cyber harassment is unacceptable, and reduces impunity. 

The General Assembly of the United Nations adopted a resolution on countering the use of information and communications technologies for criminal purposes in 201958. This draft is being critiqued by civil society on the grounds that it threatens freedom of expression, privacy, and other human rights59. It is argued that the provisions could lead to cross-border policing, lack safeguards, and enable state surveillance to target human rights defenders, journalists, researchers, lawyers, and other professionals60. This is not yet finalized. However, the situation depicts that at the global as well as the national level, a significant gap exists in addressing and responding to cybercrimes against women. 

In short, despite the lacunae in law-making and enforcement in cases of gender-bases violence, the legal system has the potential to provide a platform to redress grievances and access justice61. Therefore, enacting a legal and policy framework to address cybercrimes against women is essential. Experiences show that the existing framework relating to cybercrimes in India has failed to address digital violence against women in a holistic manner. Neither any specific law is made to especially deal with gender-based cybercrime or to safeguard women’s rights, nor the policy measures ensure dignity and justice for women online. No measures exist to curb the increasing digital sexism. 

Consequently, to effectively end the online double discrimination against women, a proactive, inclusive, comprehensive, and a gender-sensitive law is required that could encompass not only criminalization and effective prosecution for online abusers but also which could prevent violence, end the online culture of misogyny, empowers the survivors, protect their freedom of expression, and support them62. The need is to ensure an environment where online victims could report crimes easily without fear of re-victimization and get quicker and quality justice. This is in addition to the steps to respond to the deep-rooted structural inequalities. It is important to counter the online misogyny, harmful social norms, and feudal mindsets that contribute to consolidating the culture of cyberviolence against women. A multi-pronged, victim-and survivor-centric approach can go a long way in tackling cybercrimes, ensuring gender justice, ending the online sexism, and creating a safe and digitally inclusive world. 

Adv Dr. Shalu Nigam is a feminist advocate, researcher and an activist working at the intersection of gender, law, governance, and human rights. Currently, she is a senior visiting fellow at IMPRI.

References

1. Kandpal V and RK Singh (2013) Latest face of cybercrimes in India, International Journal of Basic and Applied Science, 2(4) 150-156
2. Jay Helen (2024) We need public service internet to free us from Big Tech’s grasp, ScientificAmerican.com, March 22, We Need a Public Service Internet to Free Us from Big Tech’s Grasp | Scientific American
3. Nigam Shalu (2018) #MeToo in India is just a tip of an iceberg and it has shaken the patriarchy to its core, countercurrents.org, October 23, https://countercurrents.org/2018/10/metoo-in-india-is-just-a-tip-of-an-iceberg-and-it-has-shaken-the-patriarchy-to-its-core/
4. Nigam Shalu (2014) Violence, Protest and Change: A Socio-Legal Analysis of Extraordinary Mobilization after the 2012 Delhi Gang Rape Case, International Journal of Gender and Women’s Studies, 2(2) 197-221
5. https://datareportal.com/reports/digital-2024-global-overview-report
6. 63.5 percent women use internet as compared to 68.8 percent men https://datareportal.com/reports/digital-2024-global-overview-report
7. ITU.int (2023) Bridging the Gender Divide https://www.itu.int/en/mediacentre/backgrounders/Pages/bridging-the-gender-divide.aspx
8. https://www.itu.int/en/mediacentre/backgrounders/Pages/bridging-the-gender-divide.aspx
9. https://datareportal.com/reports/digital-2024-global-overview-report
10. Times Now (2023) Only 33% women in India use internet, men account for 57%: Study December 18
    https://www.timesnownews.com/india/only-33-of-women-in-india-use-internet men-account-57-article-106087239
11. GSMA (2023) The Mobile Gender Gap Report 2023 https://www.gsma.com/r/gender-gap/utm_source=website&utm_medium=blog&utm_campaign=gender-gap-2023
12. Oxfam (2022) Digital Divide: India Inequality Report 2022,
    https://www.oxfamindia.org/knowledgehub/workingpaper/india-inequality-report-2022-digital-divide
13. Tripathi Ashish (2021) Digital divide produces stark consequences for poor school children from rural to tribal areas: SC, Deccan Herald, October 12, https://www.deccanherald.com/india/digital-divide-produced-stark-consequences-for-poor-school-children-from-rural-and-tribal-areas-sc-1038687.html
14. Sardesai Shreyas (2021) When Aadhar related problems lead to denial of rations and benefits: what the data show, The Indian Express, April 18. https://indianexpress.com/article/explained/explained-when-aadhaar-related-problems-lead-to-denial-of-rations-and-benefits-what-the-data-show-7277092/
15. Nigam Shalu (2017) An ordinary life enslaved by a card: Coercively linking Aadhar with Hunger is no solution, countercurrents.org, October 28 https://countercurrents.org/2017/10/an-ordinary-life-enslaved-by-a-card-coercively-linking-aadhaar-with-hunger-is-no-solution/
16. Foucault M. (1997) The Birth of Biopolitics, in Ethics, Subjectivity, and Truth, edited P. Rainbow and JD. Faubion, New Press. 73-79
17. Halder Debarati and Jaishankar Karuppanan (2009) Cyber Socializing and victimization of women, The Journal of Victimization 12(3) 5-26
18. Kovacs A, RK Padte, SV Shobha (2013) An Exploratory Study of Women and Verbal Online Abuse in India, Internet Democracy project, Delhi, https://cdn.internetdemocracy.in/idp/assets/downloads/reports/women-and-
    verbal-online-abuse-in-india/Internet-Democracy-Project-Women-and-Online-Abuse.pdf
19. Uma Saumya (2017) Outlawing Cyber Crime Against Women, Bharti Law Review 103-116
    https://docs.manupatra.in/newsline/articles/Upload/CE3E0AE8-DE2B-41EA-92A2-8A46035DECEB.pdf
20. Chaturvedi Swati (2017) I am a troll: Inside the secret world of BJP’s digital army, Juggernaut Books, Delhi
21. Citron DK (2014) Hate Crimes in cyberspace, Harvard University Press, Cambridge
22. Balabantaray SR, M Mishra, and U Pani (2023) A Sociological study of cybercrimes against women in India: Deciphering the causes and evaluating the impacts on victims, International Journal of Asia and Pacific Studies, 19(1) 23-49
23. Saha Tanya and Akancha Srivastava (2014) Indian Women at Risk in the Cyber Space: A Conceptual Model of Reasons of Victimization, International Journal of Cyber Criminology 8(1) 57-67
24. Kaur, G. (2022) Internet Crimes Against Minors and Legal Framework in India, Indian Journal of Public Administration, 68(4), 705-718.
25. World Bank (2023) Protecting Women and Girls from Cyber Harassment: A Global Assessment of Existing Laws, June 22,
    https://documents1.worldbank.org/curated/en/099456506262310384/pdf/IDU0c7c3a5a70b56a04b250a31b0b32b8f5cd856.pdf
26. Ibid.
27. European Institute of Gender Equality (2022) Combating cyberviolence against women and girls,
    https://eige.europa.eu/gender-based-violence/cyber-violence-against-women?language_content_entity=en
28. https://www.oas.org/juridico/spanish/us_cyb_laws.pdf
29. UN Women (2020) Online and ICT facilitated violence against women and girls during COVID-19,
    https://www.unwomen.org/en/digital-library/publications/2020/04/brief-online-and-ict-facilitated-violence-against-women-and-girls-during-covid-19
30. Seth Karnika (2018) Cyber Crimes Against Women: An Indian Law Perspective,
    https://www.sethassociates.com/wp-content/uploads/2008/08/Women-and-Cyber-Crime.pdf
31. Das S (2023) Govt prepares new cyber security policy to beat malware attacks, Livemint.com, June 14,
    https://www.livemint.com/technology/govt-prepares-new-cyber-security-policy-to-beat-malware-attacks-11686717816691.html
32. https://www.mha.gov.in/en/division_of_mha/cyber-and-information-security-cis-division/Details-about-CCPWC-CybercrimePrevention-against-Women-and-Children-Scheme
33. https://cybercrime.gov.in/
34. https://i4c.mha.gov.in/
35. Suo moto Writ Petition (Crl.) 3/2015 Supreme Court
36. Ibid. Order dated 23 October 2017
37. WorldPrivacyLaw.com (2021) Prajwala letter case – A step towards intermediary guidelines, 2021, June 23,
    https://worldprivacylaw.com/?p=403
38. SupremeCourtCases.com (2023) In Re Prajwala Letter dated 18.2.2015 Videos of Sexual Violence and Recommendations, August 1, https://www.supremecourtcases.com/in-re-prajwala-letter-dated-18-2-2015-
    videos-of-sexual-violence-and-recommendations-10/
39. Ministry of Electronics and Information Technology (2021) Notification GSR 139(E) dated 25 February 2021 Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021
    https://mib.gov.in/sites/default/files/IT%28Intermediary%20Guidelines%20and%20Digital%20Media%20Ethics%20Code%29%20Rules%2C%202021%20English.pdf
40. Press Information Bureau (2022) Cybercrimes Against Women, Ministry of Electronics and IT, Government of India.
    https://pib.gov.in/Pressreleaseshare.aspx?PRID=1881404
41. Chakraborty Prateek (2024) May be deepfake: Delhi metro on viral video of women playing Holi inside the train, India Today, March 24,
    https://www.indiatoday.in/india/story/delhi-metro-girls-viral-video-social-media-holi-playing-train-coach-2518777-2024-03-24
42. Nitnaware Himanshu (2023) New Data Protection law dilutes RTI, will impact marginalized and poor; Experts, Down to Earth, August 16, https://www.downtoearth.org.in/news/governance/new-data-protection-law-
    dilutes-rti-will-impact-marginalised-and-poor-experts-91183
43. IMPRI (2023) RTI and Privacy: Congruent or Contradictory, November 16,
    https://www.impriindia.com/event/rti-privacy/
44. Brittas John and A Babu (2023) What Lies Beneath the PR blitz on the New Data Protection Act? The Wire, August 27,
    https://thewire.in/government/what-lies-beneath-the-pr-blitz-on-the-new-data-protection-act
45. Rana V, A Gandhi and R Thakur ( 2023) Deepfake and Breach of Personal Data: A Bigger picture, LiveLaw.in, November 24,
    https://www.livelaw.in/law-firms/law-firm-articles-/deepfakes-personal-data-
    artificial-intelligence-machine-learning-ministry-of-electronics-and-information-technology-information-technology-act-242916
46. Weale Sally (2024) Social media algorithms amplifying misogynist content, The Guardian, February 6,
    https://www.theguardian.com/media/2024/feb/06/social-media-algorithms-amplifying-misogynistic-content;
    Also, Noble SU (2018) Algorithms of Oppression, New York University Press, New York
47. The Wire (2021) Act of Intimidation and Harm: Rights Activists on Sulli deals App targeting Muslim Women, July 13,
    https://thewire.in/women/sulli-deals-muslim-women-cyber-harassment-statement
48. Nigam Shalu (2023) Combating everyday gender stereotypes in courtrooms, countercurrents.org, October 5,
    https://countercurrents.org/2023/10/combating-everyday-gender-stereotypes-in-the-courtrooms/
49. Joseph MB, VS Anu Swaraj, Nargees Basheer (2018) Cyber violence – Unpacking Histories from Counselling Centers, The National University of Advance Legal Studies, Kerala,
    https://projects.itforchange.net/e-vaw/wp-content/uploads/2018/01/MeghaBijiJoseph_AnuSwarajV-S_0ANargeesBasheer.pdf
50. AIR 2015 SC 1523
51. Choudhary Archismita (2018) Moving forward: Cyber-Misogyny and creating safe spaces online,
    https://projects.itforchange.net/e-vaw/wp-content/uploads/2018/01/Archismita_Choudhury.pdf
52. Kapur R (2012) Pink Chaddies and Slut Walk Couture: The postcolonial Politics of Feminism, Feminist Legal Studies 20(1) 1-20
53. Dhawan Himanshi (2009) Pink chaddi campaign a hit, draws over 34,000 members, The Times of India, February 14,
    https://timesofindia.indiatimes.com/india/pink-chaddi-campaign-a-hit-draws-over-34000-members/articleshow/4126529.cms
54. Nigam, Shalu (2021) Strategic Law Suits against Public Participation in India: Why the Neutrality Principle of Law not Working? July 15, Available at SSRN: 
    https://ssrn.com/abstract=3887643 or http://dx.doi.org/10.2139/ssrn.3887643
55. MJ Akbar v Priya Ramani Complaint case 05/2019 District Court Delhi
56. The Wire (2021) Priya Raman vs. MJ Akbar: Ahead of verdict, a Recap of the #MeToo case that shook India, February 9,
    https://thewire.in/women/priya-ramani-vs-m-j-akbar-ahead-of-verdict-a-recap-of-the-metoo-case-that-shook-india
57. OHCHR (2018) A/HRC/38/47: Report of the Special Rapporteur on violence against women, its causes and consequences on online violence against women and girls from human rights perspectives, June 18,
    https://www.ohchr.org/en/documents/thematic-reports/ahrc3847-report-special-rapporteur-violence-against-women-its-causes-and
58. United Nations (2019) Resolution 74/247 on Countering the use of information and communications technologies for criminal purpose on 20 January 2020. https://documents.un.org/doc/undoc/gen/n19/440/28/pdf/
59. Brown Deborah (2022) Opening stages in UN cybercrime treaty talks reflect human rights risks, Human Rights Watch, April 28, https://www.hrw.org/news/2022/04/28/opening-stages-un-cybercrime-treaty-talks-reflect-human-rights-risks
60. Human Rights Watch (2021) Abuse of cybercrime measures taints UN Talk, May 5,
    https://www.hrw.org/news/2021/05/05/abuse-cybercrime-measures-taints-un-talks
61. Nigam Shalu (2019) Women and Domestic Violence Law in India: A Quest for Justice, Routledge, Delhi
62. United Nations (2010) Handbook for Legislation on Violence Against Women, Department of Economic and Social Affairs, New York
    https://www.un.org/womenwatch/daw/vaw/handbook/Handbook%20for%20legislation%20on%20violence%20against%20women.pdf