Introduction
It is said that society prepares the crime; the criminal commits. It is a deep-rooted habit of society to prejudice the already prejudiced section of them, and one of them is women. They, worldwide, have been a long victim of various offences, and the common crimes against them are rape, molestation, female infanticide, dowry death, etc. However, there are offences which go unnoticed, one of them is voyeurism. Voyeurism means the activity of getting pleasure from secretly watching other people in sexual situations or, more generally, from watching other people’s private lives. In India, for a long time, no law dealt with it.
There have been offences covered in the Information Technology Amendment Act of 2008, which dealt with cybercrimes, but there is no explicit mention of the term ‘Voyeurism’. It was in 2013, when the JS Verma Committee after the horrific incident of the Nirbhaya Rape Case recommended a report which brought The Criminal Law (Amendment) Act, 2013. The law has not evolved in the legal fraternity and is inconsistent. Although the statutes provide penalties, they are inadequate in addressing the issue effectively.
Sections 66E and 67A of the Information Technology (Amendment) Act, 2008, governed the penalties for publishing or transmitting material containing sexually explicit acts, etc., in an electronic format, as well as for any other act that violated the privacy of women. This penalty or compensation can never be proportional to the distress or trauma suffered by the victims, hence, penalisation of such offences is a necessity.
The legislatures tried to do the same by incorporating Section 354C in the Indian Penal Code of 1860 (Section 77 of Bharatiya Nyaya Sanhita, 2023). This provided additional definitions for offences such as voyeurism and stalking. Even though the penalisation of the said offence was done, it is not fit for the purpose, leaving behind a lot of ambiguities. The lawmakers did not pay heed to the growing technology of Artificial Intelligence and deepfakes, and the increased sophistication of the criminals in our society.
Even the Prime Minister warned of the admonition to exercise caution in light of the increasing prevalence of AI and deepfakes, which was overlooked by our statute maker. The Bhartiya Nyaya Sanhita, recently passed by the parliament, to redefine the criminal law system of the country, failed to include any significant modifications related to the offence of Voyeurism. The legislation introduced modifications to the regulations about voyeurism, which are codified in Section 77 of the Bharatiya Nyaya Sanhita Act, 2023.
The new legislation establishes a gender-neutral offence by substituting “whoever” for “any man,” which is a progressive step towards protecting citizens from the wrath of AI abuse. However, much work remains to be done to assure public safety, as the new legislation neither expanded the section’s scope nor made any fundamental modifications. This segment examines several vulnerabilities, including the insufficient emphasis on intent, in addition to concerns regarding deepfakes and morphing images. Additionally, the said section imposes more lenient sentences on offenders, which fail to deter and dissuade them from perpetrating further offences.
The Legal Lacuna: Where Voyeurism Laws Fall Short
The statutes of voyeurism, formed for the protection of society, were not inclusive. It excluded a wide ambit and has created a scope for the perpetrator to harass a victim through advanced technological means. Section 77 of BNS leaves out online and digital voyeurism, and does not mention any liability on the digital platforms. In furtherance to it, the said section excludes AI generated images, deepfakes, sextortion, revenge porn and is gender specific, which rules out male and non-binary victims.
In contemporary times, AI has become a necessity for citizens, where this intelligence creates morphed pictures, videos and other media which are then publicly shared by the perpetrator to harass the victim, or as a form of revenge to torment them. Furthermore, a lot of miscreants sextort them by threatening to reveal their sexual evidence, which might or might not be real.
Furthermore, with the advent of AI-based technology, Deepfake, which is a machine learning algorithm, has emerged. It uses generative adversarial networks (GANs) to generate synthetic media such as images, videos, and audio. This technology aims to create highly realistic synthetic media that resembles real people with manipulated content. The perpetrator uses publicly accessible internet photographs to create deepfake images, often of pornographic content and distributes them on online platforms.
This practice violates victims’ privacy by allowing them to see their preferred pornographic performers’ nude appearances. Furthermore, it should be noted that profoundly fake images do not exclusively target women. Consequently, legislation must be gender-neutral and protect individuals of all genders, not just women. The contemporary period is witnessing a flourishing of AI picture generation with technical progress.
This issue is not limited to the common people; even celebrities, as well as powerful people, have been the victims of it.The celebrities who have fallen prey to profound fakes are Rashmika Mandanna, Alia Bhatt, Sara Tendulkar, and Katrina Kaif. Nevertheless, the increasing capabilities of deepfakes indicate that it may not be long before the faces of celebrities or common people are used in pornographic content without their consent.
It is the worst nightmare of any person to be recorded without their consent and the widespread dissemination of their non-consensual media, especially the morphed one. The lack of legislation adds to their worries, making them unsafe even in their safe households. This is a gross violation of Article 21 and the victim’s sexual autonomy. Hence, the government needs to act swiftly to protect the people of the country.
Suggestions/Way Forward
The law on voyeurism contains various loopholes that are in dire need of being addressed. There are certain suggestions or rather a way forward which can be done.
Legal Aid and Awareness – Apart from loopholes in the law itself, the government should also try to spread awareness of voyeurism since it is a less explored topic. Awareness campaigns through social media, community programs to educate people about such crimes by specially targeting the youth who are more likely to get trapped by such misuse of the technology. With that, free legal aid camps should be provided, and pro bono lawyers’ access should be provided to the underprivileged victims. Apart from all these 24×7 helpline number should be maintained and promoted by the government for providing assistance to the victims.
Platform Accountability – Stricter and harsh punishment should be imposed on the digital platforms where such content is being surfed, and no action has been taken by the platform for the removal of that content and report the user who had shared or uploaded such content on the platform.
Rehabilitation Centres for the Victims – Rehabilitation centres should be established by the government or by government-funded NGOS for the victims to provide free psychological support and counselling assistance.
Online Portals – Government should create an online portal where victims of such offence and directly lodge their complaint, and can easily tract the progress of their case. Further such portal can be used to provided the necessary legal assistance.
Gender Neutral Provision and Stricter Laws – The laws should include gender-neutral provisions on voyeurism related to victims of such offences. Section 77 of the Bharatiya Nyaya Sanhita Act, 2023 should increase its ambit and include morphed images, deep fakes, and AI-generated images. It would be discriminatory to consider only women as victims. The punishment for such offences should be enhanced for such kinds of crimes in order to create deterrence.
AI Detection and Recognition Technology – Artificial Technology can use victims face to detect the morphed images or deep fakes, and can trace the source of it.
Conclusion
Sex-related crimes have had a significant impact on the population of India, necessitating the implementation of rigorous legislation and regulations to address such offences. The recently introduced Bhartiya Nyaya Sanhita Act, 2023, incorporates provisions regarding voyeurism, only with the modification of making the offender’s gender classification neutral. The remaining content of this section remains unchanged from the previous iteration.
The IT Act has several parts that, although potentially offering some degree of relief, ultimately prove inadequate in upholding the principles of the rule of law. The aforementioned parts administered penalties to individuals who had committed offences, while the severity of the punishments was very mild. Furthermore, numerous discrepancies were observed between the legal statutes and the corresponding procedural guidelines.
Nevertheless, the inclusion of section 77 in the Bhartiya Nyaya Sanhita Act, 202,3 can be deemed incongruous. The section is deemed insufficient as it possesses a limited scope. The legislature should prioritise the enhancement of legislation, particularly regarding voyeurism, a phenomenon that frequently evades public attention. The scope of the aforementioned should be expanded to encompass a broader range of visual manipulations, such as altered photos, deep fakes, and artificially generated images using artificial intelligence (AI). In conclusion, it is imperative to strengthen legislation about voyeurism to effectively deter individuals from engaging in such acts and circumventing the established legal framework.
Author Name: Ananya Singh is a Fourth Year, B.A. LL.B. (Hons.) Student at the Institute of Law, Nirma University
Ruchit Yadav is a Fourth Year B.Com. LL.B. (Hons.) Student at the Institute of Law, Nirma University
