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Dec 14, 2021

An analysis of controversy around the offences, under POCSO, IPC and IT Act, made out in ‘Bois Locker Room’ incident.

‘Bois Locker Room’, an Instagram group which shook everyone’s conscience to their cores, the group which held up a mirror to our faces and made us face the sad reality we live have built for ourselves, the group which was just a tiny droplet in the vast ocean of misogyny. While we were all struggling to cope up with our lives in the lockdown, the news which was covered by almost every media channel of the country and became a topic of the prime time debate, slowly faded away back into the confines of normalcy and hid behind the slow process of our Legal and Judicial System. We still live in the world of misogyny and casual sexism and hence have to rely on our Judicial System to play the role of an old but strong saviour. If the aforementioned statement wasn’t true, why would there be countless legislations which aim to protect the women at every scenario and setting our life, be it the workplace, the household or even online, and then prosecute the offenders who do that? In a socialist country, the government will always try to uplift a certain group of people who face issues in living in the society because of their very nature of existence and historical and societal and cultural baggage such as the people with Disabilities, persecuted minorities and women and children. This can further be warranted by the presence of Article 15[1] and Especially Article 15(3) where the state must not discriminate the people mentioned in that Article and even protect them as the case may be.

No one can deny the fact that what happened with those victims, in this case, was not wrong and such type of Incidents on the Internet are increasingly becoming common, but what came afterwards of this incident was also highly unjustified. The findings of this paper reveal the actions of people on Social Media and Delhi Commission of Women where they essentially revealed the alleged offenders’ identities and resorted to a “Media Trial” and “Prosecution on Social Media” were also highly questionable and could potentially attract certain other offences as well. These actions can be seen as some exaggerated, unnecessary outrage to an Incident which highlights a wrong and incapacity of an Entire Society. While we do require a fundamental change in the society by fixing our institutions, education system and the general outlook of dealing with casual sexism, the Lack of Empathy and basic human decency and failing to recognize the right of every individual is also an issue which everyone needs to recognize and talk about.

The present paper aims to bring out the entire story were a side of every stakeholder is highlighted and explained and a balanced view of the facts is presented before the reader, for them understand the whole situation objectively. To do this the help of following primary and secondary sources has been taken.

Press releases by Law Enforcement Agencies
Newspaper reports
Articles by Online Media Houses
News Updates Posted on Twitter by Independent and Verified Journalists.
TV interviews
Video and Text-based Statements and call of actions by various Governmental Institutions
To analyze the findings and support the arguments presented through these findings a reliance will be placed on Various Judgments and Statutory provisions of various Legislations such as:

The Indian Penal Code
The Information Technology Act,2000
The Protection of Children from Sexual Offences Act,2012, etc
Since the matter is under investigation and awaiting a judicial order, the analysis will be based on the prudence acquired from the research and facts present in the public domain.

The advent of Controversy
Virality on Social Media
The story begins when on 3rd and 4th May 2020 a lot of Instagram profiles shared the posts[1] and stories of conversations of certain Instagram profiles in a group named ‘Bois Locker room’. At the outset, these conversations in the group were disgusting and lewd. In these screenshots which were shared, certain ‘censored’ images of certain people were also present and these images were said to be of certain minor girls. Some of these images were also said to be morphed. Furthermore, these screenshots also presented the names and display pictures the Instagram profiles which belonged to the group members. These group members were said to be in standard 11th -12th and of 15-16 years of age.

Then the story broke out in almost every online and TV news channels and started the debates on prime time television as well. The first report was covered by the Digital News channel ‘The lallantop’[2] on 4th of May itself. The lallantop news report gave out the details of the incident and the identified the women in the images as minors. However, it didn’t give out any description of the Instagram users involved in the conversations. It also gave out a brief by the police and the cyber cell.

Intervention of DCW
The same news report was retweeted by Ms Swati Maliwal[3], the chairperson of Delhi Commission for Women(DCW). She further commented that these screenshots show a “gruesome Criminal and rapist mindset”. She went on to state that “each member boy of these group should be arrested and a there is a need to send a clear message.” She also mentioned about a notice which is about to be issued to the Instagram and police relating to the matter. The tweet had a fair reach with 618 retweets and 1.8k likes and the official and verified Twitter Handle of DCW also retweeted the same.

The things started to get in motion after the intervention of Swati Mailwal as later in the day DCW tweeted that they have taken suo moto cognizance of that matter and have issued notice to Instagram and the Delhi police cyber cell[4], which were signed off by Ms Swati Maliwal. The notice stated that

the DCW is in receipt of the reports and screenshots of the said group which involved hundreds of members.

The notice to the police asked for the FIR in the matter, the status of arrests in the matter and a detailed report of action taken in the matter by 8th May 2020. While, the notice to Instagram, country head asked for the details such as name, username, email id, ip address, location, of admin and each member . The notice also asked for the actions taken by the platform so far.

Both of the notices who is the head of DCW.

To raise awareness on the matter and showcase the active particaption and intervention of DCW, a s a video[1] of Ms. Swati maliwal was released which the following contents as verbatum

“ Instagram pr kuch ladko ne , ek group bnaya , jiska naam hai boys locker room jisme wo choti bachiyo ki photos circulate krrhe ho , unpr abhadr tippdadiya krrhe hai , aur yha tk ki bhi wo iss group me ye bhi plan krrhe hai ki un choti bachiyo ka rape kiya jaye.”

She concluded the video by stating that

“hum ye chahte hai ki ye ladke turant arrest hone chaiye aur inke khilaf kadhi se kadhi karyavahi honi chaiye”

The contents of the video translated to following, “ A few boys on Instagram have created on group named ‘Bois Locker Room’, where they are sharing photographs of some young girls and making lewd comments on them and are also planning to rape these girls. We want that these boys should be arrested at the earliest and the strictest action should be taken on them.”

The video had over 67k views, and more than 200 retweets. The same video but from a different source i.e. from the twitter account of a verified journalist named Sahil Murli Menghani[2] , was also retweeted by Ms. Swati Maliwal on May 4th and has over 70k views on twitter as well.

On the next day i.e. on 5th May, a report was published by the Indian express[3] which stated that an FIR has been lodged by the Delhi Police Cyber Cell in the matter and have apprehended a 15 Year old in the matter. As per the news report the police stated that ‘some of teens allegedly shared photos

of Instagram accounts, and passed sexually explicit comments while some threats of sexual violence were involved’.

Ms Swati Mailwal was also seen giving TV interviews to Times now[1][2], where she stated that these wherever these boys are, they will not be spared and lockdown restrictions will not be an issue in this regard. While she also stated that DCW stands with the gorls and who bought this issue into light and requested the viewers for a support for these women. The videos were also retweeted by Ms. Swati Maliwal and has over 11k and 16k views respectively

Intervention of Police
The news report also stated the DCP (CYBER CELL) Anyesh roy, said that the FIR registered was under 465 (forgery), 471 (using as genuine a forged document or electronic record), 469 (forgery for purpose of harming reputation), 509 (word, gesture or act intended to insult the modesty of a woman) of IPC and Sections 67 (publishing or transmitting obscene material in electronic form) and 67A (publishing or transmitting of material containing sexually explicit act in electronic form) of the IT Act. The same news report was retweeted by Ms. Swati Maliwal as well.

After the prelimnary investigation and action by the Delhi Police as press release[3] was issued by the Delhi Police which gave a clarity to the situation and several updates were provided by the Delhi Police. The press release stated that one of the screenshot alleging the planning of gangrape turned out to be not related to the ‘Bois locker room Incident’ and was between other two minors . The police also stated that they identified one of the juvenile, based on the screenshots available in the public domain.

An Analysis of the events and the crimes attached therein
Apart from being an eye-opening reflection of society’s condition the series of events which followed the ‘Bois locker room’ incident, is very peculiar and reveal several other things which were wrong as well and hence making the situation even more interesting to study upon. In the above-stated facts and news reports, it becomes clear that the outrage on Social Media was the main driving factor in the course of achieving ‘justice’ in this case. Countless people on Instagram shared those stories, several people and experts including child psychologists, educationalists, law enforcement officials etc., talked about the same on Primetime television, Tv news channel debates and on their private social media handles as well. This explosion of news led to the intervention of the Delhi Commission of Women in this case as well, which escalated the issue even further and the whole incident got even more attention. As per these news reports, the reports of the incidents and the press release by the Delhi Police, there seem to be 2 such elements which are very peculiar and almost instantly stand out but their relevance was spun in such a manner that one of the element was completely forgotten. According to above-stated information, the conversation in the screenshots which shared was about certain subjects who were minors and females, however, at the same time, it was also shared that persons involved in the conversations were also minors and Juveniles. The same was mentioned in the posts which were shared on Instagram, the news reports which explained the incidents as all of it mentioned the conversation were among the group of school students. The same was later confirmed by the Police as well, through their press release, that they identified one of the suspects from the screenshots available in the public domain, and this individual is a Juvenile.

However, one thing which abruptly stands out, in this case, is the actions of Delhi Commission of Women in dealing with this incident and especially the role of Ms Swati Maliwal, who is the Chairperson of DCW. DCW is a body established by the Delhi Government by the DCW act,1994[1], and essentially aims for the facilitation of women in dealing with various kinds of issues which a woman might face or is facing. It is important to note that this body is an agency of the state and hence should not be considered as independent body operating without any or little oversight, like NGOs etc. With this context of what DCW is and what it stands for, the actions of agency and the statements made by their chief at news channels and Social media platforms are problematic and can potentially invite certain legal actions as well

As stated above, these statements made by Ms Swati Maliwal signify a prejudice against the individuals who were the alleged suspects and even minors as well. However, the predetermined notion of already assuming the individuals as real culprits of the crime is wrong on two grounds:

It goes against the principles of Adversarial model of Justice, the system on which our legal and judicial system is based. The system which believes in the collection of Evidence, the assertion of facts and then figuring out the real culprits of the crime.
The same screenshots, which were being relied upon for identification of a crime and people behind it, also revealed and stated the identities and age of the Individuals amongst whom the conversation took place. This further led to the potential identification of various Instagram profiles which were present in the conversations, and the list of members of the Instagram Group. The same was even confirmed by the police in their press release that they identified the suspects through the screenshots present in the public domain.
The crimes which were attracted after the incident
As per the news reports, the police filed the Fir under section 465, 471 and 469 of IPC[1], which talk about forgery of documents as the certain images of individuals were altered and photoshopped, 509 of IPC[2], which talks about the outraging the modesty of a woman and lastly under Section 67 and Section 67A of the IT act,2000[3], which talk about sharing obscene and sexually explicit content respectively. It is important to note that all these penal provisions and are criminally actionable and require Intention as a Key ingredient for their commission.

The said screenshots showed extremely disgusting conversations and the said comments were directed at several minor women. At the same time, these screenshots also showed how allegedly, certain nude images of these young women were shared in these groups, which allegedly could have been edited as well. Therefore, the attraction of Section 465,471 and 469 of IPC is completely correct in these scenarios, as these images were forged. At the same time, the attraction of 509 of IPC is also correct as these comments and images did in fact outrage the modesty of the women in the images. However, the attraction of Section 65B of Information technology act and section 13 and 14 of POCSO would have been more accurate in the present scenario as well as the victims of these alleged crimes were, in fact, minors and are covered by the Jurisdiction of the POCSO. The application of POCSO in the present case would turn out to be helpful in the disposition of the case as the Supreme court issued separate guidelines, in the interest of the children who are the victims of sexual crimes, in the case of Alakh Alok Srivastava vs union of India[4] in 2018. These guidelines stated that :

The High Courts shall monitor and have oversight over the cases filed under the POCSO Act and make sure they are tried and disposed of by the Special Courts and the said courts are sensitized in the matters of child protection and psychological response.
The Special Courts, as conceived, be established, if not already done, and be assigned the responsibility to deal with the cases under the POCSO Act.
The Special Courts can issue separate notices to fast track the cases by not granting unnecessary adjournments and following the procedure laid down in the POCSO Act and thus complete the trial in a time­bound manner.
The Chief Justices of the High Courts are requested to constitute a Committee of three Judges to regulate and monitor the progress of the trials under the POCSO Act. The High Courts where three Judges are not available the Chief Justices of the said courts shall constitute one Judge Committee.
The Director-General of Police or the officer of the equivalent rank of the States shall constitute a Special Task Force which shall ensure that the investigation is properly conducted and witnesses are produced on the dates fixed before the trial courts.
Adequate steps shall be taken by the High Courts to provide a child-friendly atmosphere in the Special Courts keeping in view the provisions of the POCSO Act so that the spirit of the Act is observed.
The above directions have made sure that the victims of such sexual crimes get speedy justice and it doesn’t affect the emotional and mental development of the victim by dragging the cases for too long.

Application of JJ act,2012 for protection of Alleged offenders
However, if these individuals, who were the alleged culprits or suspects, were Juveniles, then it would invoke or attract the Juvenile Justice Act[1]. Furthermore, when this happens and the said statute is applied, Section 3[2] will of the said act will also be attracted, where the said section talks about the general principles of operations of agencies of state and the presumption of innocence of the Juvenile in terms of developing any intention of committing any crime. While nobody is questioning the actions of Delhi police or their conduct, it can be argued that the actions of DCW are questionable as by showing the prejudice against the alleged offenders and supporting the sharing of these screenshots on social media accounts just shows how DCW, which is a state body is a thousand miles away from the guidelines and directions laid down in the Juvenile Justice act, as stated above.

It can be argued that this prejudice can easily be observed through the statements made by Ms Swati Maliwal on news channels and social media where she vehemently demands the prosecution of the alleged suspects of the incident and instead of discouraging the spread of these screenshots any further she supported the individuals who did it and pretended that nothing was wrong about it, and the Twitter handle of DCW retweeting it amounts to the support and agreement of the organization towards their chief.

While the DCW didn’t specifically disclose the identities of the alleged suspects of the incident, they gave the issue a Global spotlight which ultimately led to the disclosure of the identities of the individuals through their social media accounts. Section 74 of the JJ Act. was specifically put in place to prevent this from happening but by sharing and reposting of those posts the exact purpose of this provision was defeated. It can be argued that by not discouraging and rather completely supporting and encouraging these acts of bringing this information on social media, DCW, a state agency, were passively responsible for revealing the identities of the ‘Children in conflict with law’. The DCW not only supported the actions but never even mentioned that the alleged offenders could be minors, but at the same time recognized the women in the screenshots as minors. This is not only an irresponsible online behavior but essentially violates the privacy of the minor as well.

There was a reason why the JJ act was formulated in such a manner. It embodied the principles of restorative justice[1] and aimed to move away from the regressive and old principles of retributive justice theory. By reading almost every provision of the act it becomes abundantly clear that the act aims to work in the positive rehabilitation of the child in conflict with the law, helps them realize that gravity and consequences of their action and tries to build a system around it that works in fulfilling these aims and objectives. The fundamental reason behind the same lies in the principles which are also present in Section 83 of IPC[2] i.e. the ability to comprehend the consequence of once’s actions are not present in minors and hence the fundamental ingredient behind the said crimes i.e. Intention could never have been present in these individuals in the first place. Hence, a selective approach in providing justice by applying those regressive principles of retributive theory where one only focuses on punishing the offender is incorrect in the cases of minors or juveniles because if the contrary was true we would be putting the offender behind bars but these offenders would be minors which itself doesn’t seem justified.

The above arguments and contentions neither defend the actions of what those alleged offenders did nor do they accuse the DCW or any government agency of any illegal activity, however, if reliance is placed on the information that is present in the public domain, the selective outrage of the society was unjustified and the way a state agency operated and fueled the outrage even further was unjustified and wrong as well. The way the society and the said organization reacted completely flies in the face of what the JJ act stands for. Nobody is denying that there shouldn’t be discussions and discourses on the reasons behind such behaviour of an individual but completely forgetting empathy and the law of the land is incorrect. Even if those screenshots were of such a nature that a grave action was required to find the culprits, the possibility of the presence of minors and juveniles should have been considered and the agencies should have appealed to the general public to stop sharing these screenshots and should have informed about the reason for the same as well.

These incidents of cyber-crimes will increasingly become common in the coming years as there will be an increase of people who use technology and at the same time, people will use the same for more tasks as well. Therefore, in such a scenario a little empathy in the approach, a due adherence of law and sensitivity training could go along way in making sure that these incidents don’t happen in the first place.