High Court on sharing of sexually explicit images

Allahabad High Court on sharing of sexually explicit images / videos consensually taken

In the matter of Guruvinder Singh vs. State of UP and Ors.,while rejecting the bail application, the Allahabad High Court (“Court”) on 4th October, 2021 observed that sexually explicit images or videos made by a partner in an intimate relationship with the consent of the subject, cannot be used as a form of revenge or harassment and that it would damage the dignity of the concerned.

Facts: A complaint was filed against Guruvinder Singh (“Applicant”) stating that he had raped the survivor for the first time in 2012 and also made obscene video clips. It was also alleged that on the basis of these clips and photographs, the Applicant continued to commit crime with the survivor. The charges levied against the Applicant were, among other things, related to sexual harassment (354A), voyeurism (354C), Stalking (354D) and outraging the modesty of a woman (509) under the Indian Penal Code, 1860. This matter came up before the High Court as Applicant filed a bail application.

Arguments: It was argued on behalf of survivor that the Applicant had taken her obscene photographs and video recordings, which he used to blackmail her and also shared and circulated the same.

Applicant argued that survivor was major and she never raised any alarm or objected to the behaviour. It was argued that Applicant met with survivor in 2012 in a coaching institute and were having an affair and that a physical relationship was established with the consent of the survivor. In 2020, the relationship fell apart. The witnesses examined stated that the parties involved were living together and were very close to each other. It was also submitted that Applicant was supporting the survivor financially. Therefore, the Applicant broadly argued that this is a case of consent.

It was argued that this is not a case of consent but a case of submission / surrender. The survivor submitted herself before the applicant under the mental pressure created by him as also the threat of reputation. It was also stated in the FIR that obscene photographs were sent by him on the mobile phones of sister and mother of the survivor.

Observations: Before coming to a conclusion, the Court observed that it would be appropriate to take note of the expression(s) “Dignity” and “Privacy”.

Regarding “Dignity”, the Court referred to the judgement passed bythe Supreme Court in the case of M. Nagraj v. Union of India, (2006) 8 SCC 2012 wherein the Apex Court has expressed that it is the duty of State not only to protect human dignity but to facilitate it by taking positive steps in that direction. While no exact definition of human dignity exists, it may be construed to refer to the intrinsic value of every human being, which is to be respected.

The concept of a human being’s “Privacy” was also elaborated. The Court referred to the decision of Hon’ble Apex Court in the case of K.S. Puttaswamy and another v. Union of India and others reported in (2017) 10 SCC 1, whereby the Apex Court held that the integrity of the body and the sanctity of the mind can exist on the foundation that each individual possesses an inalienable ability and right to preserve a private space in which the human personality can develop. Without the ability to make choices, the inviolability of the personality would be in doubt.

Decision: In reference of the aforesaid judgements, the Court opined that sexually explicit images or videos made by a partner in an intimate relationship with the knowledge and consent of the subject, cannot be used as a form of revenge or harassment and that it would definitely distort/damage the dignity of the concerned.

It further said that the Court in such type of cases cannot close its eyes and by virtue of being parens patriae and protector of fundamental rights, the Court will come forward to protect the right of the subject and stringently deal with the person concerned.It also said that any act which outrages the modesty of a woman and misuses the same in cyberspace is contrary to the larger interest of the protection of the woman against exploitation and blackmailing.

The Court also considered that the Applicant has not yet filed a reply to the allegation of sharing and circulating the victim’s photographs. Therefore, in view of the above, the Court considered appropriate that the bail application be rejected.

– Adv. Shivangi Prasad – Corporate Lawyer, External Member & Trainer, Head – Legal & Compliance, Partner & Shagnik Bhattacherjee, Legal and Compliance

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