Humans, who claim to the sole intelligent creature on the planet, believe they have humanity among them, but the truth is that humans in the twenty-first century are the ones who lack a humanistic perspective; they are self-centred.They are entirely concerned with themselves and will go to any length to achieve their goals, including injuring others.
The term "crime against the person" refers to a wide range of criminal offences, particularly those involving bodily injury or harm. The Indian Penal Code, 1860 is the nation's criminal law, defining the various and varied offences as well as their punishments under the Indian legal system. In particular, “Chapter XVI, Of Offences Affecting the Human Body” of the Indian Penal Code, 1860, encompasses offences such as bodily injury or threat to life or harm.
Offences affecting Life
Criminal acts that include substantial bodily harm and have the potential to endanger a person's life, and such offences are the most heinous and brutal in character. The following are a few examples of life-threatening offences.
S.299 Culpable Homicide
Culpable homicide is defined in Section 299 of the IPC. In layman's words, it is an offence to cause death with the intent or knowledge that his act will positively cause death.
Ingredients of Culpable Homicide:
Death of a person, whether caused by the offender's act or any expression of his. Mens Rea presence or intent to conduct the crime.Knowing that causing such bodily harm will result in the cause of death.
In Palani Goundan v. Emperori, it was held that “Death caused without requisite intention or knowledge is not culpable homicide. In the absence of intention or knowledge, the offence committed may be hurt or grievous hurt.”
S. 300 Murder
Murder is defined in Section 300 of the IPC. In a nutshell, it states that "allmurders are culpable homicide but not vice versa." In plain terms, a man is said to commit murder when his act to cause death is aided with the desire to kill or with the knowledge that causing such bodily injury is likely to cause death in ordinary prudence.
Mens Rea is undeniably present. Intention to commit such bodily harm, which may result in death Committing such an act with the understanding (ordinary prudence) that such an act is of such a kind that it must, in all likelihood, result in death. Most significantly, there is no lawful reason.
In Emperor v. Dhirajiaii, it was concluded that “An act done with the knowledge of its consequences is not prima facie murder. It becomes murder only if it can be positively affirmed that there was no excuse”.
Sec. 302: Punishment for Murder
Whoever commits murder shall be punished with death or imprisonment for life, and shall also be liable to fine. It is to be noted that the death sentence is awarded only in rarest of rare' cases e.g. assassination of Prime Minister Indira Gandhi.
Sec. 304: Punishment for Culpable Homicide Not Amounting to Murder
Part I of this section provides punishment of imprisonment for life or imprisonment for 10 years and fine.
Part II provides imprisonment for 10 years, or with fine, or both.
Part III applies if the offence comes under clause 2 of Sec. 299 (i.e. with intention).
Part IV applies if offence comes under clause 3 of Sec. 299 (only knowledge).
If the offence falls within clauses 1, 2 and 3 of Sec. 300 but is covered by any of the five exceptions, it will be punishable under Part I. If the offence comes under clause 4 of Sec. 300 but is covered by any of the exceptions, it will be punishable under Part II
S. 304A Causing Death By Negligence
Section 304A of the Indian Penal Code, inserted into the penal code by the 27th Act of 1980, defines causing death by negligence as “Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”
In Munile Sao v. State of Bihariii, it was held that in order to impose criminal accountability on the offender under section 304A, it must be proven and found that the incident occurred primarily owing to rashness or negligence, or else the crime will be culpable homicide, not murder.
S. 306 Abetment to Suicide
Suicide abetting is a punishable offence under sections 306 and 107 of the Indian Penal Code, 1860. When a person instigates someone to commit suicide (or) is part of a scheme to force someone to commit suicide, he is guilty of abetment. (or) He knowingly assists the victim in committing suicide by performing an act or failing to perform an act that he was obligated to perform.
Offences related to kind of Hurt
Hurt is defined in Section 319 of the IPC as “Whoever causes bodily pain, disease, or infirmity to any person is said to cause hurt.” That is, the hurt should be of such a character that, if administered, it is likely to produce pain in the body, some sort of disease or infirmity of any organ of the body, as non-functioning of a body organ. The crime of causing harm is non-cognizable and bailable. The penalty is one year in prison or a fine of a thousand rupees, or both.
S.320 Grievous Hurt
Section 320 of the IPC defines grievous hurt and categorises various types of hurts that may be characterised as ‘grievous.' Only if a person's life is in jeopardy is an injury considered grievous. A simple damage cannot be considered grievous because it occurs on a vital portion of the body unless the kind and dimensions of the injury or its effect, in the opinion of a medical expert, endangers the victim's life.
S. 323 talks about punishment for voluntarily causing hurt, which is either imprisonment for duration of up to 1 year or fine not exceeding Rs. 1000 or both.
The punishment for voluntarily causing harm with dangerous means or weapons is described in Section 324 of the IPC. This offence is punishable by up to three years in prison, a fine, or both under Section 324. Section 326 allows for a ten-year extension. Section 326 primarily depicts a vexing form of unfortunate hurt. Under this offence, the grievous hurt must be caused by firing tools (weapons), wounding, or cutting (blades). It can also come from various weapons that are likely to bring demise or death. Indeed, this clause applies to explosives, damages, destructive substances, or flames that cause great bodily injury.
Offences Against Wrongful Restraint and Confinement
S. 339 Wrongful Restraint
The offence is defined in Section 339 of the Indian Penal Code as “Whoever willingly obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed is said wrongfully to restrain that person.” The only exemption is barrier from entering private land that is enforced in good faith, will not constitute restraint or detention.
In Madala Perayya vs. Varugunti Chendrayyaiv, the complainant and defendant owned a well from which they both extracted water for agricultural purposes in their own fields. After some time, the accused restrained the complainant from extracting the water and claimed the ownership of the well. The Madras High Court held that “since the well is owned by both the parties and the accused had made a false claim of ownership on it, he has committed the offence of wrongful restraint under sec. 339 of IPC
S. 340 Wrongful Confinement
The crime of wrongful confinement is defined under Section 340 of the IPC as “Whoever wrongfully restrains any person in such a manner as to prevent that person from advancing beyond certain circumscribing boundaries is said “wrongfully to confine” that person.”
In State vs. Balakrishnanv, the victim was detained in the police station. The accused claimed that complainant was free and at liberty to leave the premises.The court held that authority of a police officer prevails in the police station and if he acts in a rude and tyrant manner, he just committed the offence under sec. 340 of IPC.
The punishments pertaining to wrongful restraint and confinement are prescribed in Sections 341 and 342 of the Indian Penal Code, 1860. Both the offences are bailable and non-cognizable offences.
Offences of Criminal Force and Assault
S.350 Criminal Force
A person is said to use criminal force on another person when he or she intentionally uses force on another person without that person's consent in order to commit an offence and with the prior intention of causing harm to that person in the form of injury, fear, or annoyance to whom the force is used. It come under Section 350 of the Indian Penal Code.
Assault occurs when a gesture is made to a person with the knowledge that the person will apprehend it as the perpetrator intends to use unlawful force on that person. An assault does not consist of just words. However, certain gestures, expressions, and preparations may be used by a person, and such gestures, emotions, and preparations may amount to assault. It comes under section 351 of Indian Penal Code. When someone assaults or uses criminal force against another person in response to a sudden and grave provocation by another person, he may be punished to prison imprisonment for a term of three months or a fine of up to INR 500, or both. Section 352 of the Indian Penal Code defines it.
S. 353 Assault or criminal force on another person to discharge him from duty
This comes under Section 353 of the Indian Penal Code. Whoever assaults a public servant while he or she is performing his or her duties, or with the goal of discouraging the person from performing his or her duties, shall be imprisoned for a time that may be extended for up to two years, fined, or both.
S. 354 Assault or Criminal Force to Woman to Outrage her Modesty
A person who assaults another lady with the intent to offend her and thus likely to offend her modesty is punished under Section 354 of the Indian Penal Code.It includes of assault or the use of illegal force; nonetheless, mere knowing without any conscious intent is also sufficient.
S.354A Sexual Harassment
A male who engages in any of the following behaviours: Unwanted physical contact and advances; and specific sexual overtures. A request or demand for sexual favours. Displaying porn against a woman's wish. Making sexually charged statements is a sexual harassment offence.
Any man who commits the offence specified in clause (i), clause (ii), or clause (iii) of sub-section (1) shall face harsh imprisonment for a term of up to three years, a fine, or both.
Any man who commits the offence specified in clause (iv) of sub-section (1) must be punished by imprisonment of any type for a term not exceeding one year, a fine, or both. This comes under Section 354A of the Indian Penal Code.
The principal offence in this section is rape, which is described as ‘non-consensual intercourse with a person either by threatening, force, or persuasion.' The crime of rape is one of these. Rape is regarded a serious crime against the human body, particularly against females. Victims of rape are subjected to a great deal of psychological torture or disease, which can lead to suicide ideation. Rape is specified in Section 375 of the Indian Penal Code, 1860.
Hon'ble Mr Justice Krishna Iyer stated in State of Maharashtra v. Madhukar Narainvi, “A murderer destroys the body, but a rapist kills the soul.”
The punishment for rape has been provided under Section 376 of the IPC. According to this section, the punishment for rape will be imprisonment for a term of not less than 7 years, which may extend up to life imprisonment – depending on the facts and circumstances of the case.
Section 377 states that whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine’.
It punishes unnatural offences like sodomy, bestiality (sexual intercourse with an animal), and buggery. Consent is immaterial under this section. In the case of Suresh Kumar Koushal v. Naz Foundationvii, it was held by the Section 377 IPC is constitutional and made anal sex a punishable offence. However, in the case of Navtej Singh Johar & Ors. v. Union of Indiaviii, a five-judge bench of the Supreme Court headed by Chief Justice Dipak Mishra partly struck down Section 377 holding it violative of the fundamental right to privacy. The Court also said that Section 377 would continue to be in force in cases of unnatural sex with animals and children. The Supreme Court held that Section 377 was a weapon to harass members of the LGBTQ+ community resulting in discrimination against them.
The Indian Penal Code, 1860, specifies reckless driving or riding on a public route as well as causing death by negligence. Rash driving or riding on a public way is defined under Section 279 of the Indian Penal Code, while causing death by negligence is defined in Section 304A of the Indian Penal Code (IPC).
One of the most frequently misunderstood traffic offenses is that commonly referred to as “reckless driving.” And this reckless driving only deals with great damage of life and prospects in the society. In many states judicial definitions of reckless driving are found in cases where in the courts have construed homicide statutes in which reckless driving (culpable or criminal negligence or the like) is the specific element of the crime. Many of these legislation simply combine reckless driving with the additional element of causing a death as a result of it.
Section 279 is a new type of offence committed because driving implies it is a vehicular offense. And vehicles were only recently introduced in India during the British period, but Section 304A can be said to have existed for a long time as an offence. It does not limit itself to negligent driving, but it can be any negligent act or omission.
It is not mandatory that the person committing offence under sections 279 and 304A should be of guilty mind to commit such offence, mere negligence on part of the offender without exercising due care which a prudent man might reasonably be expected to exercise is enough to constitute the person guilty under these sections.
The accused must have committed such an act or omission, and such act or omission must have been reckless and negligent, according to both sections 279 and 304A of the IPC. The distinction is that under Sec. 279, the conduct must be hasty and negligent driving, but in Sec. 304A, any rash and negligent act is acceptable.
Ingredients of S. 279 & S.304A IPC
• • Rash Driving or Riding – This section addresses rash or negligent driving of any vehicle or riding in a public place in a rash and negligent manner with the intent to risk human life or cause harm or injury to any person. If a person operates a motor vehicle on a road without appropriate care and attention, he is guilty of an offence under this section and faces a maximum penalty of six months in jail or a fine of rupees 500, or both. Any Magistrate has jurisdiction over the offence, which is cognizable, bailable, and triable.
• Public way – A public way is any path that is shared by all subjects, whether it leads directly to a town or extends beyond a town as a highway to other towns or from town to town.i
• Rash or negligent driving — A rash act is one that is impulsive and hence must be contrasted with a deliberate one, but it also includes an act that, while it may be claimed to be purposeful, is done without deliberation and prudence. It is not required that the reckless and irresponsible behaviour result in bodily harm or property damage.ii Speed alone does not determine rashness or recklessness on the part of the driver. The connection between speed and rashness or carelessness is location and time dependent. On a straight, broad road with no other cars or pedestrians in the way, it is impossible to say that driving at a high speed or failing to blow the horn constitutes rashness or carelessness. A motor vehicle is designed to be driven quickly.iii
So the ingredients of this section includes: there should be driving or riding which can be through any vehicle moving or having tendency to move. Then the driving or riding must be on Public way and such driving or riding must be rash or negligent.
To file a homicide case under this section, the following elements must be met:
• the person in question must be dead or can be referred to as the victim.
• The accused must have been responsible for such a death.
• That the accused's actions were impulsive and negligent, and that they did not amount to culpable homicide.
To impose criminal culpability under this clause, the death must have been the direct result of the accused's hasty and negligent act, and that act must have been the proximate and efficient cause without the interference of another's fault. It must be the causa causans (the current or operative cause); it is insufficient to be the causa sine qua non. (a necessary or inevitable cause).
The section is defined as “whoever causes the death of any person by doing rash or negligent act not amounting to culpable homicide”
Now here the word ‘Any Person’ has to be explained as ‘Person’ includes a human being of any age, whether born or unborn. In a case where the accused kicked a woman in an advanced stage of pregnancy with the result that the child died in the womb, the accused was held guilty under this section.
Major Difference between S.279 and S. 304A
SECTION 279 IPC
SECTION 304A IPC
Under this section rash driving or riding should be the act.
Under this section it need not be rash or negligent driving. It can be any rash or negligent act.
The rash or negligent driving must be on a public way.
The rash or negligent act can be done anywhere it need not be any public way.
The rash act or negligent act can be while driving or riding only.
Driving or riding is not necessary to commit such offence.
It is a minor offence punishable with imprisonment extending upto six months or fine upto Rs. 1000 or both.
It is a grave offence punishable with imprisonment extending upto two years or with fine or with both.
The other distinction is that under Section 304A, death must be caused and it must be caused as a direct result of the accused's negligent act.
However, death does not have to be inflicted in order for Section 279 to apply. If the accused's reckless and careless driving results in death as a result of his actions, he may be prosecuted under other sections of the IPC, such as Section 304A. It may then be considered a crime under Section 279 read in conjunction with Section 304A.
Section 304A deals with a broader range of cases than Section 279 because it includes any rash and negligent act resulting in death by the accused, whereas Section 279 focuses solely on rash and negligent driving, which means that it cannot be any negligent act but must be a specific negligent act, i.e. Rash and Negligent Driving or Riding, and this specific act must also take place on a public way.
Section 304A of the IPC contains more wording and requires more interpretation than Section 279 of the IPC. Section 279 only applies to situations involving driving on a public road endangering human life, but Section 304A applies to any hasty or careless act that falls short of culpable homicide.
Thus, Sec. 279 focuses on the crimes of rashness and negligent driving on public roads, which are limited to the act of driving or riding anything movable, in order to prevent crimes that instil fear in the minds of the public of people who drink and drive, drive at high speeds on a busy road, drive in crazy ways, hit people, or cause general fear. And if this rash or irresponsible driving on a public road results in death, it is Section 304A read with Section 279 that is causing death by carelessness. Though the scope of 304A is quite broad and expansive, as it includes any form of irresponsible act resulting in death, it is not required for charging Sec. 279 as it requires that there was negligent driving as a specific act
Certain offences do not cause bodily harm to anyone, but they are nevertheless criminal. Criminal intimidation, insult, and annoyance are examples of such offences under Chapter 22 of the IPC. Although these offences appear straightforward, there are various methods to commit them. Depending on the nature of the offence, the sentence may include up to 7 years in prison.
S. 503 Criminal Intimidation
Section 503 of the Indian Penal Code, 1860, defines criminal intimidation as an offence. According to the clause, anyone who threatens another person on the following grounds is guilty of criminal intimidation.
1. Endangers his person;
2. Endangers his reputation;
3. Endangers his property;
4. Endangers the person or reputation of anyone in whom the person is interested.
Furthermore, the goal should be to create panic to that person, or to force them to execute an act they are not legally required to perform, or to omit an act they are lawfully authorised to perform. If they are forced to perform all of these things in order to escape the execution of such a threat, this is criminal intimidation.
According to the section's explanation, a threat to harm the reputation of a deceased person in whom the person threatened is interested is likewise covered by this clause.
In Amitabh Adhar vs. NCT of Delhi (2000)i, it was held that a mere threat does not amount to criminal intimidation. There must be an intention to cause alarm to the person threatened.
It is not necessary that the threat is direct in nature. In Re A.K. Gopalan vs. The State of Madras, Union of India: Intervener (1950)ii, the Court held that if a speaker at a public meeting threatened police officers stationed at Malabar, with injury to their person, property or reputation, then he was liable for committing the offence of criminal intimidation.
The punishment for the offence of criminal intimidation is laid down under Section 506 of the Indian Penal Code, 1860.
The provision is broken down into two parts:
1. In simple situations of criminal intimidation, whomever commits criminal intimidation is punishable by imprisonment for a period of up to two years, a fine, or both.
This is a non-cognizable, bailable, and compoundable offence that can be tried by any magistrate.
2. If the threat is to result in:
• Death or serious injury;
• Fire destruction of any property;
• To commit an offence punishable by imprisonment for a term of up to seven years, life imprisonment, or death;
• To accuse a woman of unchastity.
The specified punishment in the aforementioned situations is simple or rigorous imprisonment for a term of up to seven years, or a fine, or both.
In comparison to the first portion of the section, the second portion deals with prescribing punishment for more serious kinds of criminal intimidation.
This section is a non-cognizable, bailable, and non-compoundable offence that can only be tried by a magistrate of the first class.
It is vital to remember that in order to attract the second portion of this provision, there must be a threat of death or serious bodily harm.
S. 504 Intentional insult with intent to provoke breach of the peace
Section 504 of the Indian Penal Code, 1860 deals with intentional insult. The provision provides that any person who willfully insults and so provokes another person, intending or knowing that such provocation would lead the person to disturb the public peace or commit some other offence, shall be punished with imprisonment for up to two years, a fine, or both.
The offence is non-cognizable, bailable, and compoundable by the person insulted, and it can be tried before any magistrate.
In the case of Fiona Shrikhande vs. State of Maharashtra (2013)iii, it was held that the intended insult must be of such a nature that it provokes a person to either disturb the public peace or commit any other violation. Simply abusing someone does not satisfy the elements of the offence.
S. 509 Word, gesture or act intended to insult the modesty of a woman
Section 509 of the Indian Penal Code, 1860 lays down the offence of insulting the modesty of a woman through word, gestures or acts.
According to the provision, any person who has the intent to insult the modesty of any woman and utters any word; or makes any sound or gesture; or exhibits any object, with the intention that such sound or word shall be heard; or such object or gesture is seen by such woman, or if the offender intrudes on such woman's privacy, then such person is liable to be punished with simple imprisonment for a term which may extend to the duration of one year or is liable to be fined; or both.
The offender's intent should be examined. Even if the precise words are not recorded, if the Court determines that the accused possessed the necessary intent, the offender can be penalised.
The offence is bailable, cognizable, and compoundable by the lady who was insulted or whose privacy was invaded, and can be tried by any magistrate.
In the case of State of Punjab vs. Major Singh (1966)iv, Justice Mudholkar stated that the reaction of the woman is not the sole criteria to see whether an act amounts to outraging the modesty of a woman.
The Ministry of Electronics and Information Technology (hereinafter MEITY) notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 in February 2021. The Rules give social media intermediaries three months to comply with the New IT Rules, making all social media platforms conform with the new Rules by May 26, 2021.
The Rules outline the due diligence that an intermediary (including a social media intermediary) must exercise when performing its duties, as well as a Grievance Redressal Mechanism and a Digital Media Code of Ethics.
Trends in Intermediary Liability in India
Since the passage of the Information Technology Act of 2000 (“the IT Act”) in 2000, the treatment of intermediary liability1 has been ambiguous. The latest Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“2021 Rules”) introduce the most important modifications for intermediaries in terms of increased due diligence responsibilities and liability in cases of noncompliance.
To understand the 2021 Rules, we must first trace the development of intermediary liability since the IT Act exempted only network service providers from liability. The need to broaden the scope of the safe harbour provision was highlighted in 2008, when the CEO of an e-auction website baazee.com was charged under the Indian Penal Code and the IT Act for an obscene video posted on the website.2 The IT Act was subsequently modified to exclude intermediaries who only served as platforms for the transfer of information from responsibility for crimes committed without their knowledge. The definition of an intermediary was broadened to include online payment sites, search engines, and internet service providers, among other things,3 and intermediaries were granted immunity from liability arising under ‘any law,' as opposed to the previous limited immunity from offences under the IT Act.
Following the 2008 amendment, an intermediary's ability to claim safe harbour was mainly determined by two factors: actual knowledge of the unlawful act and compliance with required due diligence duties. An intermediary was obligated to delete unlawful information from its platform under the previous Information Technology (Intermediaries Guidelines) Rules, 2011 (“2011 Rules”), if it obtained knowledge of such content either directly or through an aggrieved individual. Notably, in Shreya Singh v. Union of India,4 the Supreme Court read down ‘actual knowledge' to state that actual knowledge can be attributed to an intermediary only when there is a court order or notification from an appropriate government authority informing the intermediary of unlawful content on its platform.
The role of intermediaries has grown substantially in recent years, as huge segments of society have begun to adopt social media platforms as their primary means of communication. Digital media, on the other hand, has gained widespread significance, drawing the attention of the government to regulate such platforms. As a result, the 2021 Rules can be viewed as a first step toward such regulation.
Due Diligence under rules 2021
To be eligible for safe harbour under the IT Act, intermediaries must5 undertake and comply with a number of requirements. At one end of the scale, the 2021 Rules require intermediaries to prominently disclose rules and regulations on their website alerting their users about the type of information that must not be maintained or communicated on the intermediary's computer resource ("prohibited information"). This now includes content released for financial gain that is plainly false and incorrect, as well as information directed at gender-based harassment, which is a step up from the 2011 Rules.
On the other end of the diligence spectrum, intermediaries must remove or disable access to certain information hosted by them within 36 hours of receiving actual knowledge in the form of a court order or notification from an appropriate government authority that such information is prohibited information. Notably, when a person complains about sexual imagery, no such order is necessary, and the intermediary must remove the information within 24 hours of receiving the complaint.6 Intermediaries are also obligated to give any information within their control or custody to a government agency for the investigation, detection, or prevention of cyber security incidents or offences under any legislation within 72 hours after receiving an order in this regard.
Another significant change is the necessity to select a grievance officer (also mandated by the 2011 Rules) and prominently display his/her name and contact information on the organization's website. The 2021 Rules, which build on the 2011 Rules, require the grievance officer to acknowledge any order, notice, or instruction given by a court or a government body, as well as any complaint received from an individual user or victim. Furthermore, a complaint must be resolved within 15 days of its receipt (as opposed to one month under the 2011 Rules). In addition to the other due diligence requirements prescribed for all intermediaries, an SSMI is required to comply with additional obligations, which include, inter alia7 the appointment of a chief compliance officer who will be liable for an intermediary's failure to observe due diligence and a nodal contact person (available 24 hours a day, seven days a week) to ensure compliance with court orders and to coordinate investigations. It is also required to establish a physical contact address in India.
While the IT Act did not initially intend for digital media to be regulated, the 2021 Rules put a variety of requirements on digital media firms that conduct a systematic business of making material available within India. These digital media firms would essentially encompass publishers of news and current affairs as well as publishers of online curated content (“publishers”), who would be required to follow a Code of Ethics (“Code”) outlined in Part III of the 2021 Rules. Surprisingly, this Code will apply to international news publishers with an internet presence in India.
The 2021 Rules also provide a three-tier grievance resolution system to address any allegations of Code violations. A grievance officer must be designated by the publisher himself at Level I.8 If a dispute is not resolved by the Grievance Officer after 15 days, it is automatically referred to Level II, the self-regulatory body for one or more publishers or their associations.9 The 2021 Rules create an Inter-Departmental Committee10 at Level III, which will consider grievances from self-regulatory body decisions as well as other complaints concerning Code violations.
When taken as a whole, the 2021 Rules will impose a variety of duties on intermediaries, putting them closer to regulation than more traditional forms of media. A law was in the works, given the direct influence intermediaries may now have on society and polity. However, the lack of a thorough consultation process during the formulation of the 2021 Rules has sparked considerable worry and criticism, with numerous challenges made against them11 that are currently being reviewed by the courts. In the meanwhile, it's only natural for intermediaries to adjust to a future with more regulation and monitoring.
Consequences of non-compliance of the 2021 Rules:
Failure to comply with the due diligence obligations under Part II of the 2021 Rules may disqualify intermediaries from claiming safe harbour under Section 79 of the Information Technology Act, 2000. As a result, the intermediary may be held accountable for offences under numerous laws, including the IT Act and the Indian Penal Code, 1860 (“IPC”), depending on the circumstances.
For example, if an intermediary fails to provide information requested by a law enforcement agency, or fails to prevent public access to information when instructed, the IT Act makes such offences punishable by imprisonment for a term of up to seven years, as well as a fine.12. Additionally, as seen in cases involving intermediaries, provisions of the IPC ranging from criminal conspiracy13, sale of obscene books, etc., deliberate and malicious acts intended to outrage religious feelings14 to criminal defamation15 and, in some cases, criminal breach of trust16 and cheating17, may be attracted.
Given the broad nature and scope of the 2021 Rules, which impose a higher level of scrutiny on intermediaries, particularly Significant Social Media Intermediaries (“SSMIs”), an immediate result could be an increase in instances of non-compliance with the 2021 Rules. This could deprive intermediaries of the safe harbour provided by the IT Act, perhaps exposing them to a greater number of criminal allegations.
Given the broad nature and scope of the 2021 Rules, which impose a higher level of scrutiny on intermediaries, particularly Significant Social Media Intermediaries (“SSMIs”), an immediate result could be an increase in instances of non-compliance with the 2021 Rules. This could deprive intermediaries of the safe harbour provided by the IT Act, perhaps exposing them to a greater number of criminal allegations.18 This is especially important in light of the recent cases of complaints or FIRs filed against content housed on video-sharing and OTT platforms, indicating that the risk of attracting criminal allegations by digital media platforms has grown significantly.19
Surprisingly, the 2021 Rules do not identify any penalties for noncompliance by digital media firms. Rather, the 2021 Rules empower the self-regulating body or the Ministry of Information and Broadcasting (based on the Inter-Departmental Committee's recommendations) to, among other things, warn, censure, or admonish a publisher, require an apology, delete or modify content to prevent incitement to a cognizable offence, and issue orders for content blocking under Section 69A of the Act.20
Taking notice of the same, the Supreme Court in a recent order observed that “a perusal of the Rules indicate that the Rules are more and more in the form of guidelines and have no effective mechanism for either screening or taking appropriate action for those who violates the guidelines”.21
Compliance with takedown orders:
Another critical aspect of complying with takedown orders22 is the obligation to not store or host any unlawful information (which is defined broadly) upon receiving actual knowledge in the form of a court order or being notified by the government or its agency, and to further ‘remove or disable access’ within 36 hours of receipt of such a court order or notification b. While issuing a takedown order, the court may direct an intermediary to worldwide disable or de-index illegal content.23 Furthermore, if an intermediary fails to comply with a court's takedown orders, the officials in control of its business may face criminal charges.24 However, the 2021 Rules do not specifically state that the government or its agency must notify the takedown in writing, implying that there is a risk of misuse if the communication is not in writing.
The 2021 Rules also require the preservation of information and associated records of information that has been removed for 180 days for the purpose of investigation, or for a longer period if needed by a court or a government body. This criterion also applies when the information was removed based on grievances received through the prescribed grievance redressal process of intermediaries.25
Identification of first originator:
Significantly, an extra requirement is imposed on SSMIs to permit the identification of the first creator of information, if needed by a judicial order issued under Section 69 of the IT Act and the rules thereunder.26 While the 2021 Rules state that such an order may be issued for the prevention, detection, investigation, prosecution, or punishment of "serious" offences punishable by imprisonment for a term of not less than five years, a direct implication of this is the possibility of jeopardising the end-to-end encryption of messages provided by the intermediary.
In this regard, it's worth noting that if the first originator of any information is located outside of India, the first originator of the information within India will be considered the first originator of the information.
Another factor relevant to SSMIs is that the 2021 Rules encourage the use of technology-based measures, such as automated tools or other methods, which appear to be used primarily for detecting sexually explicit content at the moment. However, when put into practise, this element necessitates careful consideration of a variety of legal and ethical difficulties.
Achieving a fine balance:
At first glance, the 2021 Rules cast a wide net over the various intermediaries and digital media platforms and seek to achieve several objectives with an intent to regulate the online space. The significance of intermediaries, and especially SSMIs, in the present day and age cannot be overstated, as online spaces are a ubiquitous and relevant part of society.
In terms of the scope of the present article, it remains to be tested whether all the due diligence obligations imposed on intermediaries are practically achievable, and also whether the penal consequences associated with non-compliance of the 2021 Rules are commensurate with the offences an intermediary may be charged with. Added to this is the aspect that while the 2021 Rules appear to augment the ability of law enforcement agencies to access information from intermediaries, whether sufficient safeguards can be exercised to prevent overreach or abuse.
Separately, it is yet to be seen how the government or its agencies utilise the takedown provisions or how the grievance redressal mechanisms introduced under the 2021 Rules are practically implemented. The discourse on regulation of digital media entities is a separate discussion altogether.
While the 2021 Rules are under challenge before various high courts,27 another important question, that falls for consideration would be the effect they may ultimately have on user engagement and online discourse, especially from free speech and privacy perspective, where a fine balance is necessary to be maintained.
In the case of Avnish Bajaj v. State28, the Managing Director (rather than the company Baazee.com) was charged with violating both the Indian Penal Act and the IT Act for content distributed by a third party on its ecommerce site. However, the Managing Director was not held liable because the corporation was not named as an accused in either the High Court or the Supreme Court. Furthermore, the Delhi High Court stated that firms run the danger of acquiring knowledge if the content posted bypasses the filters designed to prohibit pornographic content.
In this case, it was also discovered that there was a need to broaden the area of protection provided to intermediaries, therefore the IT Act was revised in 2008 to incorporate a safe harbour regime under Section 79 of the IT Act and to change the definition of intermediaries (as it reads presently). The modified Section 79 of the IT Act protects internet intermediaries from "any unlawful conduct," rather than only offences or contraventions, and contains the necessity for due diligence when claiming safe harbour. It is an exemption provision that grants intermediaries conditional immunity as long as they adhere to the section's provisions/conditions.
The Delhi High Court's judgment on Christian Louboutin SAS v Nakul Bajaj and Ors29. was a watershed moment in intermediary liability jurisprudence in India, and it contained a deeper analysis of the conditions for qualifying as an intermediary than any of the earlier judgments. The High Court enumerated 26 possible services that an intermediary could provide and whether any platform providing such services could be considered a mere conduit or as having actively participated in the trading process in what would become a seminal application of the Section 79 exemption to trade mark violations. The court clarified the qualifications and preconditions set out in Sections 79(2) and 79(3) for a company to claim intermediary status and for an intermediary to be exempt from liability. It was decided that a middleman who actively participates in the trade may be denied Section 79 exemptions. The court also considered the breadth of the due diligence obligation for an intermediary to be able to claim safe harbour under Section 79 of the IT Act, stating that this may go beyond the limit provided in the relevant IT Acy guidelines. The Christian Louboutin decision significantly raised the bar that e-commerce-based intermediaries must meet in order to claim exemption from liability from any sale that would violate provisions of the Trade Marks Act, and it has had far-reaching implications for intermediary liability jurisprudence in India.
In Swami Ramdev & Ors. Vs Facebook, Inc. & Ors30, the Delhi High Court looked into the qualities and viability of a global injunction, especially in light of the role of intermediaries under Section 79 of the Information Technology Act of 2000.
In the case of Shreya Singhal v Union of India (2015)31, The Supreme Court acknowledged Indian citizens' free speech rights on the Internet for the first time by knocking down the draconian Section 66A of the IT Act, which provided for penalty for sending inflammatory comments over communication services. Further, regarding intermediary liability, the Court held that “Section 79 is valid subject to Section 79(3)(b) being read down to mean that an intermediary upon receiving actual knowledge from a court order or on being notified by the appropriate government or its agency that unlawful acts relatable to Article 19(2) are going to be committed then fails to expeditiously remove or disable access to such material…. Similarly, the Information Technology "Intermediary Guidelines" Rules, 2011 are valid subject to Rule 3 sub-rule (4) being read down in the same manner as indicated in the judgment.” The Court also observed that “it would be very difficult for intermediaries like Google, Facebook etc. to act when millions of requests are made and the intermediary is then to judge as to which of such requests are legitimate and which are not.”
Subsequently, in the case of Kamlesh Vaswani v Union of India32, the Supreme Court issued directions to intermediaries to disable specific content where website operating child pornography was sought to be restricted.
Scenario In United States:
In the United States, intermediaries' liability for third-party content is governed by two independent statutes: Section 230 of the Communications Decency Act and Section 512 of the Digital Millennium Copyright Act ("DMCA"). The Communications Decency Act grants extensive protection to any 'interactive computer service' provider or user for any third-party content. 13 It not only states that such providers and users shall not be treated as the publisher/speaker of such content or information, but it also includes a "Good Samaritan" protection, which states that providers/users of interactive computer services shall not be held liable for taking any action to screen or block any content they deem offensive.
Doe v. Myspace33 is a classic illustration of the broad immunity afforded to intermediaries under US law. Myspace was sued for negligence because it failed to put in place sufficient safety measures to prevent children from lying about their age and accessing Myspace pages where they may contact with possible sexual predators. The courts in the United States ruled that Myspace could not be held accountable for any communications published by third parties and rejected Myspace's negligence action. While the Communications Decency Act grants broad protection to intermediaries, the DMCA follows the'safe harbour' method adopted in India to give a conditional safe harbour for intermediaries facing accusations of copyright infringement. Furthermore, the DMCA expressly establishes a "notice and take-down" method via which the owner of a copyrighted work can notify an intermediary of any infringing content in the form and manner specified by the DMCA.
discussed above, the recent decision by the US District and Second Circuit courts in the case of Viacom Int'l Inc. v. YouTube, Inc. is a prime example of the extent of protection afforded to intermediaries under US law. In this case, the courts ruled that in order to hold an intermediary accountable for user-generated content that infringes copyright, the copyright owner must expressly demonstrate that the intermediary was aware of instances of infringement.
In stark contrast to the Super Cassettes Industries Ltd. v. Myspace Inc. and Anr case 34 cited above, the recent decision by the US District and Second Circuit courts in the case of Viacom Int'l Inc. v. YouTube, Inc.35 is a prime example of the extent of protection afforded to intermediaries under US law. In this case, the courts ruled that in order to hold an intermediary accountable for user-generated content that infringes copyright, the copyright owner must expressly demonstrate that the intermediary was aware of instances of infringement. Furthermore, the court noted that the intermediary may be held accountable if it had "significant control" over the infringing acts of users. However, the copyright owner bears the complete burden of proof to demonstrate such knowledge or influence exists. Viacom was unable to prove that YouTube had actual knowledge or understanding of specific illegal activities on its website in this instance, and the courts ruled that YouTube could not be held liable for copyright infringement.
The US Supreme Court had occasion to consider the issue of copyright infringement in the context of software that had potentially infringing use. In MGM Studios Inc v. Grokster, Ltd. 36 the proper test in such cases was laid down:
“We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.”
Sections 141-160 of Chapter VIII of the Indian Penal Code deal with ‘Offenses against Public Tranquillity.' These are primarily collective offences that have resulted in a disturbance of public order and quiet; such offences are deemed to be against the state, person, and property.
These offences can be broadly divided into the following:
1. Unlawful Assembly
4. Promoting enmity between different classes
The primary purpose for criminalising unlawful assembly is to maintain public peace and order. To dissuade persons from committing crimes in groups, the Penal Code includes vicarious liability. According to Section 141, the essence of an unlawful assembly is the collective commission of an offence by five or more people. The main parts of this section are that there was a gathering of five or more people who had a common object, which must be one of the five listed in this section.
When it comes to the word ‘object,' there is frequently a misunderstanding. The term "object" here refers to the purpose or design, not the "same" object. The term "common object" means that the item should be shared and owned by all of the assembly members. A 'community of object' is required.
The ‘object’ in section 141 has been specified as follows:
1. Overawing the Central or a state government or its officers;
2. Resistance to the execution of legal process;
3. Commission of mischief, criminal trespass and any other offence;
4. Forcible possession and dispossession of property;
5. Illegal compulsion
Sections 141 and 149 must be read together in order to grasp the full breadth of Chapter VIII. A combined interpretation of both reveals that if the assembly consists of fewer than five people, it is not an unlawful assembly under section 141 and hence is not a ground under section 149. In the case of Subran Subramanian v. State of Kerala 1, six people were accused of forming an unlawful assembly and murdering the deceased. The first accused was convicted of murder under Section 302 and the second under Section 326 read with Section 149. The Kerala High Court acquitted two people for not being a part of the unlawful assembly. The Supreme Court held that since section 149 could not be proved as there being an unlawful assembly, they were acquitted of charges section 326 read with section 149.
Sections 150, 157, and 158 of the IPC address the culpability of those who assist in various ways in an unlawful assembly. Section 150 makes recruiting people to join an unlawful assembly a crime, whereas Section 157 makes harbouring, receiving, or gathering people who are likely to be involved in an unlawful assembly a crime. If people engage in unlawful acts in circumstances of communal conflict or when groups of people meet, they might be booked under the sections for unlawful assembly.
Section 142 deals with being a member of an unlawful assembly, and it can be charged under this section if a person joins an unlawful assembly with full knowledge that it is against the law. The mere act of being present at an unauthorised assembly does not constitute criminal action.
Sections 146 and 147 go into greater detail about riots. The news always covers many riots that occur across the country; a riot is a procedure by which people express their dissatisfaction with something that is a grievance. Rioting is an offence under the IPC when a group of five or more individuals create a scene of civil unrest, which leads to provocative behaviour and disruption of public order. The catch with these laws is that even if no violent act is undertaken by the assembly, those present might be held accountable for rioting.
The major ingredients of rioting include common intention and object of committing a crime. The punishment for rioting is under section 148 and can lead to imprisonment for a term of 3 years or fine or both.
The IPC imposes penalties for perpetrating a riot with a dangerous weapon and for inciting a disturbance. There is a discernible difference between a riot and an unauthorised assembly; both have comparable qualities with the exception that a riot includes violence.
Affray and its punishment are dealt with in Section 159 and 160. This word refers to public combat that disrupts public order and peace. The key elements of this are that there must be two or more people present, and their actions must have an impact on the peace, order, and quiet of the surroundings they are in, as well as creating disturbance in society.
It was stated in the case of Sunil Kumar Mohamed v. The State of Orissa2 that it is not required for an offence to be committed in public for it to be classified as affray; any offence that has the potential to cause disruption should be classified as affray. The Punishment for this could be up to one-month imprisonment or fine or both.
Promoting enmity between classes
Sections 153A and 153B deal with this public offence; these sections create animosity between various groups based on religion, location of birth, race, language, and the following publishable offences. This section's constitutional validity may be observed in Article 19(1)(A) of the Indian Constitution, which grants citizens the right to free speech and expression. As a result, these clauses limit speech and actions that could harm society and cause discontent. Section 153A requires that there be a promotion of hostility between various groups, and that this should disrupt public order and serenity. In such circumstances, proving purpose is critical, and the presence of two opposing communities is also required to invoke this provision. This offence is punishable by up to three years in prison, a fine, or both. If the offence is committed inside a religious building, the penalty could be up to 5 years in prison, as well as a fine or both.
Offences relating to documents
Forgery has been a crime since the invention of writing. The lexxornelia de falsis enacted in Roman Law that a person who falsely writes, seals, publicly reads, or foists in a forged will or other document or makes cuts, moulds, or a superiors seal willfully and maliciously should be punished, exiled if a free man, and murdered if a salve. Such offences are mentioned by Blackstone, particularly the forgery of state seals, which was considered a form of treason. Forgery is defined in modern law as the creation of a fake instrument with the aim to deceive. The forgery Act, 1913, defined forgery, section 1(10) of the Act defines forgery as making a false documentary so that it may be used as genuine. However, this Act stands repealed by the Forgery and Counterfeiting Act, 1981.
Chapter XVIII of the Indian Penal Code deals with the offences relating to documents. Section 463-477A deals with all kinds of falsifications and forgery of documents.
Forgery is discussed in sections 463-465. The definition of forgery in the Code is made up of two primary provisions. Section 463 defines forgery as the creation of a fake document or false electronic record with any of the above intents. Section 464 defines forgery as the creation of a fraudulent document or false electronic record sufficient to bring it within the scope of the law. Fraud is a component that both have in common. To be charged with forgery, the accused must have created a fraudulent document or electronic record, or a portion of a document or electronic record. The essential Ingredients of forgery are
1. The making of a false document or false electronic record or part of it
2. Such making should be with the intent to a.) Cause damage or injury to the public or any person or b.) support any claim or title c.) Cause any person to part with property d.) enter into any express or implied contracts or e.) commit fraud or that fraud may be committed.
In the case of Daniel Hailey Ealcott v. State of Madras1, the court described the main elements of the offence of forgery as
1. The document or part of the document mustbe false in fact
2. It must have been made dishonestly or fraudulently within the meaning of the words used in Section 464 and
3. It must have been made with one of the intentions specified in section 463
Sections 466-471A deal with aggravated forms of forgery. Section 466 deals with forgery of five types of documents. They are:
1. Court records and pleadings
2. Register of birth, death, baptism, marriage or register kept by public servant and such
3. Certificate or document purporting to be made by a public servant in his official capacity
4. An authority to substitute or defend a suit or to take any proceedings therein
5. A power of attorney
Section 467 deals with all of the elements that must be proven to establish forgery before a conviction may be obtained under this section. To prove this offence, the prosecution must prove that there was intent, as inferred by the terms "fraudulent" or "dishonestly" used in sections 463 and 464. Section 468 establishes that the types of forgeries contemplated must necessarily contain the intent to commit fraud. When the cheating is complete, the section will not apply; the subsequent forgery is only designed to cover that offence. This provision does not require the accused to commit the crime. In the case of Dr. S Dutt v. State of Uttar Pradesh2, the accused was examined as an expert in a session trial. When he was asked by the court to produce his degrees and other certificates regarding his qualification, it was found that they were forged and false and that he was using them as genuine, he was charged under Section 465 and 471. The fifth law commission has recommended a couple of substantive changes in the structural law of forgery. Most of the proposals are for reform pertaining to the merging of the sections of forgery into one section, the 1978 Amendment sought to give effect to some of these proposals.
Offences relating to Property Marks
Chapter XVIII deals with property marks, Section 479 defines property marks as denoting a mark made on a movable property which denotes that it belongs to a particular person implying that it differentiates the right of other people to the same property. The object of such a provision is clear it protects one’s goods from fraudulent intimation by others. A gist of the sections on property marks is as follows:
• Section 479- Defines property marks
• Section 481 deals with using a false property mark
• Section 482 Punishment for using a false property mark
• Section 483 Counterfeiting a property mark used by another
• Section 484 Counterfeiting a mark used by a public servant
• Section 485 Making a possession of any instrument for counterfeiting a property mark
• Section 486 Selling goods marked with a counterfeit property mark
• Section 487 Deceiving a public servant by a false mark
• Section 489 Removing defacing or altering any property mark
A mark used for denoting that any moveable property belongs to a particular person is called ‘property mark.’ A person is said to use a false property marks: if the marks any moveable property or good or any case, package, or another receptacle, having any mark thereon. In a manner reasonably calculated to cause it to be believed that the property or goods so marked, or any property or goods contained in any such receptacle so marked, belong to a person to whom they do not belong. In such a context, the offender becomes liable for imprisonment for one year or fine or both.