CAN’T MISUSE SEXUALLY EXPLICIT IMAGE OR VIDEO EVEN IF CAPTURED WITH CONSENT OF WOMEN: ALLAHABAD HC

While displaying zero tolerance for cases of crime against women and denying bail to a rape accused, the Allahabad High Court has as recently as on October 4, 2021 in a learned, laudable, landmark and latest judgment titled Guruvinder Singh v State Of UP And Anr. in Bail No. 3669 of 2021 has observed explicitly that even if sexually explicit images and videos are captured with the consent of a woman, the misuse of the same can’t be justified once the relationship between the victim and the accused gets strained. It must be mentioned here that the single Judge Bench of Hon’ble Justice Saurabh Lavania of Allahabad High Court also stressed that in such matters, being parens patriae and protector of fundamental rights, the court will come forward to protect the rights, dignity of the affected victims, who, the Court highlighted, are mostly women. I don’t have enough words and it is beyond the capacity of my pen to express in words how much happy and proud I feel when I read such judgments as this one written by the Bench of Hon’ble Justice Saurabh Lavania wherein it is made clear that a man can under no circumstances hold the woman’s rights, dignity and honour to ransom as per his own whims and fancies! If courts will not speak up for women in such cases then who else will?

To start with, this brief, brilliant, bold and balanced judgment authored by a single Judge Bench of Hon’ble Justice Saurabh Lavania sets the ball rolling by first and foremost observing that, “Present bail application has been filed by the applicant in Case Crime No.6 of 2021, under Sections- 354Ka, 354Kha, 354Ga and 354Gha, 376, 509, 323, 452, 504, 506 I.P.C., P.S.- Lalganj, District Pratapgarh. Learned Counsel for the applicant submitted that as per the FIR, the informant/victim is posted as Naib Tehsildar at District Pratapgarh. The FIR in issue was lodged on 02.01.2021 at about 07:26 hours. As per the allegations made in the FIR, the applicant committed crime i.e. rape with the informant/victim for the first time in the year 2012 in the premises situated at GTB Nagar, New Delhi. It is further stated that in the FIR that the applicant also has made obscene video clips of informant/victim. He further stated that it appears from the FIR that on the basis of obscene video clips and photographs, the applicant continued to commit crime with the informant/victim. It is also apparent from the FIR that in 2017, the informant/victim was appointed as Naib Tehsildar at district Pratapgarh. It further transpires therefrom that in Pratapgarh also, the applicant committed crime with informant/victim and took obscene photographs. In the FIR, further allegations have been levelled, which are to the effect that account of informant/victim was operated by the applicant. The informant/victim was also threatened on phone and messages, as indicated in the FIR.”

Needless to say, the Bench observed that, “Learned AGA as also learned counsel for the complainant opposed the prayer for bail. It is submitted that the story of prosecution as narrated in the FIR is intact. The informant/victim in her statement made under Sections 161 and 164 Cr.P.C. supported the story of prosecution. There is no variation in the same.”

Furthermore, the Bench then states that, “It is further stated that as per Section 114-A of Evidence Act, the presumption is against the applicant. In this regard, further reliance has been placed on Section 53 of Evidence Act. It is also stated from the side opposite that the applicant, on the basis of video clips and photographs, created pressure on the informant/victim and the victim was under duress and he is the person alone who was operating the account of informant/victim. All the transactions of Bank account were made by the applicant. The pressure was upto the extent that the phone number(s) of the applicant were mentioned in the record of Bank. The messages of all transactions made from account of informant/victim could only be seen by the applicant alone. The informant/victim even after being selected as Naib Tehsildar is not in a position to operate her own Bank account as per her own way.”

What’s more, the Bench then further states that, “Learned counsel for the side opposite further stated that this is not a case of consent rather it is a case of submission/surrender. The informant/victim submitted herself before the applicant under the mental pressure created by him as also the threat of reputation. The informant/victim has supported the story of prosecution, as such, at this stage, it cannot be presumed that the offence has not been committed by the applicant. It is also stated that in the FIR, specific allegations against the applicant is to the effect that obscene photographs were sent by him on the mobile phones of sister and mother of informant/victim, however, neither the statements of these witnesses were recorded nor the photographs sent by the applicant on mobile phones of these persons were taken into account by the Investigating Officer during investigation.”

Truth be told, the Bench then observed that, “On a query being put about the photographs annexed with supplementary affidavit at page No. 5, which as appears were taken at 2.39-2.44 PM, learned counsel for the applicant submitted that they are not visible. Moreover, the photographs annexed at page Nos. 6, 7, 8 and 9 are also not visible. However, learned counsel for the applicant could not reply the query of Court regarding timings of photographs.”

As it turned out, the Bench then enunciates that, “In response to the aforesaid argument of learned counsel for the applicant which is to the effect that none of the photographs are visible and clear, learned counsel for the side opposite submitted that these photographs are obscene photographs and same were sent by the applicant to sister of informant/victim.”

To put things in perspective, the Bench then envisages that, “Before coming to conclusion, considering the facts of the case, it would be appropriate to take note of expression(s) “Dignity” and “Privacy”. Dignity is the quality of being honourable, noble, excellent or worthy. With a human regarded as the most supreme living creature, dignity, in its appealing sense, is better referred to as human dignity. It is the conceptual basis for the formulation and execution of human rights and is neither granted by the society nor can it be legitimately granted by the society. An imperative implication of human dignity is that every human being should be regarded as a very invaluable member of the community with a uniquely free expression of their right to life, integrated bodily attributes and their spiritual nature.”

Be it noted, the Bench then rightly points out that, “Human dignity is a sense of self-worth. Therefore, dignity is a sense of pride in oneself that a human being has with them. This conscious sense makes them feel that they deserve respect and honour from other human beings. Many scholars argue that if a human being is in a humiliating or compromising situation then this is a major threat to their dignity.”

It is worth noting that the Bench then points out that, “Regarding “human dignity”, the Hon’ble Apex Court in the case of M. Nagraj v. Union of India, (2006) 8 SCC 2012 expressed that human dignity is a right covered under Article 21. The expression “life” in Article 21 does not connote merely physical or animal existence. The right to life includes right to live with human dignity. It is the duty of State not only to protect human dignity but to facilitate it by taking positive steps in that direction. No exact definition of human dignity exists. It refers to the intrinsic value of every human being, which is to be respected. It cannot be taken away. It cannot be given. It simply is. Every human being has dignity by virtue of his existence.”

It is worth noting that the Bench then hastens to add that, “In regard to “Privacy”, the 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, held that it is a right covered under Article 21 of the constitution of India. The relevant paras are as under:-

“297. What, then, does privacy postulate? Privacy postulates the reservation of a private space for the individual, described as the right to be let alone. The concept is founded on the autonomy of the individual. The ability of an individual to make choices lies at the core of the human personality. The notion of privacy enables the individual to assert and control the human element which is inseparable from the personality of the individual. The inviolable nature of the human personality is manifested in the ability to make decisions on matters intimate to human life. The autonomy of the individual is associated over matters which can be kept private. These are concerns over which there is a legitimate expectation of privacy. The body and the mind are inseparable elements of the human personality. 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. Recognizing a zone of privacy is but an acknowledgment that each individual must be entitled to chart and pursue the course of development of personality. Hence privacy is a postulate of human dignity itself. Thoughts and behavioural patterns which are intimate to an individual are entitled to a zone of privacy where one is free of social expectations. In that zone of privacy, an individual is not judged by others. Privacy enables each individual to take crucial decisions which find expression in the human personality. It enables individuals to preserve their beliefs, thoughts, expressions, ideas, ideologies, preferences and choices against societal demands of homogeneity. Privacy is an intrinsic recognition of heterogeneity, of the right of the individual to be different and to stand against the tide of conformity in creating a zone of solitude. Privacy protects the individual from the searching glare of publicity in matters which are personal to his or her life. Privacy attaches to the person and not to the place where it is associated. Privacy constitutes the foundation of all liberty because it is in privacy that the individual can decide how liberty is best exercised. Individual dignity and privacy are inextricably linked in a pattern woven out of a thread of diversity into the fabric of a plural culture.

402. “Privacy” is “[t]he condition or state of being free from public attention to intrusion into or interference with one’s acts or decisions” [Black’s Law Dictionary (Bryan Garner Edition) 3783 (2004)]. The right to be in this condition has been described as “the right to be let alone” [Samuel D. Warren and Louis D. Brandeis, “The Right To Privacy”, 4 Harv L Rev 193 (1890)]. What seems to be essential to privacy is the power to seclude oneself and keep others from intruding it in any way. These intrusions may be physical or visual, and may take any of several forms including peeping over one’s shoulder to eavesdropping directly or through instruments, devices or technological aids.

479. Both the learned Attorney General and Shri Sundaram next argued that the right to privacy is so vague and amorphous a concept that it cannot be held to be a fundamental right. This again need not detain us. Mere absence of a definition which would encompass the many contours of the right to privacy need not deter us from recognising privacy interests when we see them. As this judgment will presently show, these interests are broadly classified into interests pertaining to the physical realm and interests pertaining to the mind. As case law, both in the US and India show, this concept has travelled far from the mere right to be let alone to recognition of a large number of privacy interests, which apart from privacy of one’s home and protection from unreasonable searches and seizures have been extended to protecting an individual’s interests in making vital personal choices such as the right to abort a foetus; rights of same sex couples-including the right to marry; rights as to procreation, contraception, general family relationships, child-bearing, education, data protection, etc. This argument again need not detain us any further and is rejected.

560. The most popular meaning of “right to privacy” is-“the right to be let alone”. In Gobind v. State of M.P. [Gobind v. State of M.P., (1975) 2 SCC 148 : 1975 SCC (Cri) 468], K.K. Mathew, J. noticed multiple facets of this right (paras 21-25) and then gave a rule of caution while examining the contours of such right on case-to-case basis.

636. Thus, the European Union Regulation of 2016 [Regulation No. (EU) 2016/679 of the European Parliament and of the Council of 27-4-2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive No. 95/46/EC (General Data Protection Regulation).] has recognised what has been termed as “the right to be forgotten”. This does not mean that all aspects of earlier existence are to be obliterated, as some may have a social ramification. If we were to recognise a similar right, it would only mean that an individual who is no longer desirous of his personal data to be processed or stored, should be able to remove it from the system where the personal data/information is no longer necessary, relevant, or is incorrect and serves no legitimate interest. Such a right cannot be exercised where the information/data is necessary, for exercising the right of freedom of expression and information, for compliance with legal obligations, for the performance of a task carried out in public interest, on the grounds of public interest in the area of public health, for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes, or for the establishment, exercise or defence of legal claims. Such justifications would be valid in all cases of breach of privacy, including breaches of data privacy.”

The Hon’ble Apex court while considering the issue of a conflict between the right to privacy of one person and the right to a healthy life of another person has held that, in such situations, the right that would advance public interest would take precedence.””

More significantly, the Bench then minces no words to observe that, “No person much less a woman would want to create and display gray shades of her character. In most of the cases, like the present one, the women are the victims. Capturing the images and videos with consent of the woman cannot justify the misuse of such content once the relation between the victim and accused gets strained as it happened in the present case. In matters like the present one, any accused will surreptitiously outrage the modesty of the woman and misuse the same in the cyber space unhindered. Undoubtedly, such an act will be contrary to the larger interest of the protection of the woman against exploitation and blackmailing, as has, prima facie, happened in the present case.”

To top it all, the Bench then most significantly holds that, “It would be appropriate to observe that the sexually explicit images or videos may be made by a partner of an intimate relationship with the knowledge and consent of the subject, or it may be made without his or her knowledge, however, the same if used as a form of revenge or harassment would definitely distort/damage the dignity of concerned and the Court in such type of cases cannot close its eyes and being parens patriae and protector of fundamental rights, the Court should come forward to protect the right of the subject and similarly the Court should stringently deal with the person concerned. Moreover, the possession of the material may be used by the perpetrators to blackmail the subjects into performing other sex acts or to coerce them into continuing the relationship, or to punish them for ending the relationship.”

Finally, the Bench then concludes by holding that, “This Court after considering the entire aspects of the case as indicated hereinabove, including factual aspect of the case, which relates to live in relationship, which has been disputed by the informant/victim and statements of victim recorded under Sections 161 & 164 Cr.P.C. in the light of above referred provision(s) of Evidence Act, wherein, she has supported the version of FIR as also the conduct of the applicant, which relates to sending obscure photographs and messages to sister of informant/victim as indicated in supplementary affidavit dated 01.10.2021, to which, no reply has been filed despite of asking in this regard to learned counsel for the applicant, is not inclined to enlarge the applicant on bail. The instant bail application is thus rejected.”

In conclusion, the single Judge Bench comprising of Hon’ble Justice Saurabh Lavania of Allahabad Court has in his refreshing, realistic, robust and rational judgment made it absolutely clear that no person can misuse sexually explicit images/videos even if captured with the consent of women. The Allahabad High Court thus gives convincing, cogent and compelling reasons also as to why the rape accused bail application is rejected. It certainly merits no reiteration that crime against women has to be taken always most seriously and what the Hon’ble Justice Saurabh Lavania has stated in this case is most laudable and has to be followed always in similar such cases! All said and done, it has to be acknowledged by one and all that the honour, dignity and respect of women is non-negotiable and has to be always accorded the supreme importance in all spheres of life and even Judges cannot be an exception. No doubt, this most commendable, courageous and composed judgment by Allahabad High Court firmly, fully and finally vindicates that no man can ever be allowed to take the honour, dignity and reputation of any woman for granted under any circumstances and has to be definitely sent behind bars if he still dares to do so! All the courts must always unflinchingly abide by it!

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