CHAPTER 4 : THE ROLE OF JUDICIARY

Having studied the meaning and concept of cyber crime,

various cyber crimes particularly in relation to women and the legal
provisions in relation thereto, this research can now be taken further to
study and understand the role of judiciary in safeguarding the rights of
women from offences committed in cyberspace. Judiciary is that branch of
the government which interprets the law and delivers justice. From times
immemorial, it has been playing a vital role not just by delivering justice
but also aiding the development of laws.
The judiciary is the branch of government which administers justice
according to law. The term is used to refer broadly to the courts, the judges, magistrates,
adjudicators and other support personnel who run the system. The courts apply the law, and
settle disputes and punish law-breakers according to the law. Our judicial system is a key
aspect of our democratic way of life. It upholds peace, order and good government. Citizens
look to the judiciary to uphold their rights and governments look to the courts to interpret
laws. The judiciary must act without fear of powerful interests, and without favouring
individual parties.

Administration of justice is the primary function of the

judiciary. However, the judiciary performs certain other function too.
These functions may be judicial in character but some of these functions
are non-judicial in nature. Broadly speaking, following are some of the
judicial and non-judicial functions performed by the judiciary: -

(1) Judicial Functions: Firstly, when a dispute is brought before a court,

it is the responsibility of the court to 'determine the facts' involved.
The usual manner in which the courts determine the facts is through
evidence given by the contestants. Once the facts have been
established, the court proceeds to decide what law is applicable to a
particular

controversy

or

circumstance.

Herein

the

judiciary

becomes the interpreter of laws, which is the prime function of the

judiciary. So the major task of the judiciary is to 'determine' the facts
of laws and to apply them to particular circumstance.

(2) Law-making Functions: Secondly, the judiciary while interpreting

the existing laws also performs the role of lawmaker. It may sound
surprising, but 'judge-made' laws are common to all systems of
jurisprudence. Such occasions arise when the provisions of the
existing laws may be ambiguous, or sometimes two or more laws of
a particular government appear to be in conflict under a given
circumstance.
Herein

the

judiciary

plays

an

important

role

in

determining what the law is and when two laws apparently conflict, which
shall prevail. For instance, the enunciation of the 'Doctrine of Implied
Powers' by the U.S. Judiciary proved conducive to the growth of the
federal government's power. However, the phraseology of the original U.S.
Constitution did not provide such enormous power of the Federal
Government. In this context, we fully realize the prime importance of the
judiciary.

(3) Guardianship of the Constitution: Thirdly, in federal States like

India, the U.S.A. and Switzerland, the judiciary is the guardian of the
Constitution. Chief Justice Hughes of America once said, "We are
under a union but the Constitution is what the judges say it is". In
federal States conflict in jurisdiction and authority frequently occurs,
as there are several law making and executive authorities, each
showing its power to the Constitution. In the circumstances, the
judiciary becomes the umpire and regulates the legal actions of the
States and Central governments.
In case the laws made by any of these law-making
bodies conflict with the constitutional provisions, the judiciary in the
above mentioned States is empowered to declare the relevant legislation
illegal. Indian courts on several occasions have declared laws of the Union
as well as the State laws illegal.

(4) Advisory Jurisdiction: Fourthly, some national judiciaries possess

advisory jurisdiction. For instance, the President of India may seek
the advice of the Supreme Court of India on any proposed
legislation. However, there is no such provision in the U.S.A. The
Canadian Supreme Court is also obliged under constitutional
provisions to tender advice to the Governor General.

(5) Protector of the Fundamental Rights: Fifthly, the judiciaries also

act as the defenders of the individual's right. Such role of the

judiciary is important as it prevents the individual's rights from

being violated. An individual need not wait until harm is done to
him. If he had, sufficient reasons to believe that attempts would be
made to violate his 'rights' he could approach the courts for
protection.
Then the courts would issue orders prohibiting such
attempts until the rights of the parties were determined. Judiciary is the
watchdog of rights and liberties of the people. In India, the Supreme Court
is empowered to protect the Fundamental Rights of the citizens.

(6) Supervisory Function: Sixthly, higher courts are often assigned the
task of supervision over the lower courts. The Indian High Conn
responsible for the supervision of their respective state judicial
systems.

(7) Non-Judicial Function: Lastly, the judiciary in some countries may

perform a number of non-judicial functions. Courts may undertake
the administration of property in cases where the ownership of
property in question is in dispute. Courts also assume responsibility
for handling the affairs of minor children or lunatics. Courts may be
authorized to issue and cancel certain licenses. Courts also may be
authorized to grant citizenship to aliens.

Having discussed the basic functions of the judicial

branch of a government it can be gathered that Judiciary is a part of

the democratic process. Judiciary not only administers justice, it

protects the rights of the citizens and it acts as the interpreter and
guardian of the constitution. In many states the judiciary enjoys the
power of judicial review by virtue of which the judiciary decides the
constitutional validity of the laws enacted or of the decree issued. It
can invalidate such laws and decrees which are not constitutional. It
is now imperative to study the role of this branch of the government
particularly in respect of safeguarding the rights of women from
offences committed in cyberspace.

In the earlier chapters it has been discussed elaborately

that in cyber crimes, it could be hackers vandalizing your site,
viewing

confidential

information,

stealing

trade

secrets

or

intellectual property with the use of internet. It can also include

denial of services and viruses attacks preventing regular traffic
from reaching your site. Cyber crimes are not limited to outsiders
except in case of viruses and with respect to security related cyber
crimes that usually done by the employees of particular company
who can easily access the password and data storage of the
company for their benefits. Cyber crimes also includes criminal
activities done with the use of computers which further perpetuates
crimes i.e. financial crimes, sale of illegal articles, pornography,
online gambling, intellectual property crime, e-mail, spoofing,
forgery, cyber defamation, cyber stalking, unauthorized access to
Computer system, theft of information contained in the electronic

form, e-mail bombing, physically damaging the computer system

etc. Cyber crime is a global phenomenon. With the advent of
technology, cyber crime and victimization of women are on the high
and it poses as a major threat to the security of a person as a whole.
Even though India is one of the very few countries to enact IT Act
2000 to combat cyber crimes, issues regarding women still remain
untouched in this Act. The said Act has termed certain offences as
hacking, publishing of obscene materials in the net, tampering the
data as punishable offences. But the grave threat to the security of
women in general is not covered fully by this Act.

Amongst the various cyber crimes committed against

individuals and society at large the crimes which can be mentioned as
specially targeting women have been discussed in detail earlier. Now, a
discussion on the role that the judiciary has played in dealing with these
crimes in particular needs to be undertaken at this stage of the research.
Harassment via e-mails is a cyber crime classified as a cyber crime
against persons and is very similar to harassing through letters.
Harassment includes

blackmailing,

threatening,

bullying,

and even

cheating via email. E-harassments are similar to the letter harassment but
creates problem quite often when posted from fake ids. The Indian Penal
Code, Criminal Procedure Code and select sections of IT Act deal with the
protection from cyber-crime. In general they are used to book the
perpetrators along with Section 292A of the IPC for printing or publishing
grossly indecent or scurrilous matter or matter intended to blackmail and

under Section 509 of the IPC for uttering any word or making any gesture
intended to insult the modesty of a woman. The judicial branch of the
governments in most of the countries has been playing its role of
interpreting these provisions and keeping the criminality of the act under
check.

The judiciary has had the opportunity to play its role

very effectively specifically in the crime of cyber stalking. As discussed
earlier, cyber stalking

involves invading the privacy by following a

person's movements across the internet by posting messages on the

bulletin boards, entering the chat-rooms. While Cyber Stalking affects both
men and women, women are disproportionately its targets. The Indian
Judiciary has been successful in setting examples of intoleration of this
crime through various case laws. The landmark judgment in this area is
the Ritu Kohli Case which is discussed as follows.

The Ritu Kohli Case : The perfectly normal married life of Ritu Kohli,
New Delhi turned upside down, when she started receiving a number of
emails from an unknown source.
Initially she ignored the mails. Stalker used obscene and obnoxious
language, and post her residence telephone number and other personal
details on various websites, inviting people to chat with her on the phone.
As a result, she started receiving numerous obscene calls at odd hours
from everywhere, then she got alarmed.

Being distraught, Kohli lodged a police complaint.

Fortunately Delhi police immediately sprang into action. They traced down
the IP address (Internet Protocol address) of the hacker to a cybercafe.
The cyber stalker- Manish Kathuria, later got arrested by the Delhi police
and was booked under sec 509 of the IPC for outraging the modesty of a
woman and also under the IT Act of 2000. The case highlighted here is the
first case of cyber stalking to be reported in India. Through this case, the
Indian Judiciary highlighted the ingredients of this offence and identified
the various parameters required to be considered while judging this
offence.
In another case of Cyber Stalking, a 28 year old woman,
Neha Ghai was shocked after she received objectionable calls and text
messages on her mobile phones and even vulgar e-mails in her inbox.
When she approached the cyber cell and lodged a complaint against the
accused, she came to know that she has become a victim of cyber
stalking and the stalker had collected all her personal details posted on
objectionable portals.
The Obscenity Tests: - The Courts have also dealt with the issue of
obscenity in an elaborate sense. It became necessary for the Judiciary to
define the term obscenity. The courts were faced with the dilemma of
determining the parameters of obscenity as what might have been
obscene at one point of time would not be considered as obscene at a
later period. The test of obscenity was thus required to be established.
The Indian Courts came to observe in the year 1965 that : -

. The world, is now able to tolerate much more than formerly, having
coming indurate by literature of different sorts. The attitude is not yet
settled..
Again in the year 1969, in Chandrakant Kalyandas
Kakodar, the Court reiterated the principle as follows:The standards of contemporary society in India are also fast changing.
The Hicklin Test: - This observation was confirmed by the Courts in the
matter of Samaresh Bose v. Amal Mitra

by laying emphasis on the

contemporary social values and general attitude of an ordinary reader.

The court upheld the same in the matter of S. Khushboo v. Kanniammal 2.
It was in the matter of Aveek Sarkar v. State of West Bengal and another
that the Court appreciated the Hicklin Test laid down by the Court of
United Kingdom way back in the year 1868. The court held that all
material tending "to deprave and corrupt those whose minds are open to
such immoral influences" was obscene, regardless of its artistic or literary
merit. This test was laid down by the Court in the landmark judgment of
Regina v. Hicklin3 wherein the Court noted as follows : The test of obscenity is whether the tendency of the matter charged as
obscenity is to deprave and corrupt those whose minds are open to such
immoral influences and into whose hands a publication of this sort may
fall.
1

(1985) 4 SCC 289

(2010) 5 SCC 600

1868 L.R. 2 Q.B. 360

Adopting the observations of the Court of United

Kingdom, the Supreme Court of India in Aveek Sarkars case remarked
that : Hicklin test postulated that a publication has to be
judged for obscenity based on isolated passages of a work considered out
of context and judged by their apparent influence on most susceptible
readers, such as children or weak-minded adults. United States, however,
made a marked departure. Of late, it felt that the Hicklin test is not
correct test to apply to judge what is obscenity. In Roth v. United States
354 U.S. 476 (1957), the Supreme Court of United States directly dealt
with the issue of obscenity as an exception to freedom of speech and
expression. The Court held that the rejection of obscenity was implicit in
the First Amendment. Noticing that sex and obscenity were held not to be
synonymous with each other, the Court held that only those sex-related
materials which had the tendency of exciting lustful thoughts were
found to be obscene and the same has to be judged from the point of
view of an average person by applying contemporary community
standards.
The Miller Test: - The Apex Court however, deemed fit to apply the
Community Standard Test rather than the Hicklin Test to determine what
obscenity is. Coming to the position of the obscenity test in the United
States of America, its Supreme Court has laid down the Miller Test which
is also known as the Three Prong Obscenity Test for determining

whether speech or expression can be labelled as obscene. This test came

to be established by the Supreme Court of USA in the matter of Miller v.
California. This test consists of three parts viz.,

Whether

"the

average

person,

applying

contemporary community standards", would find that the work,

taken as a whole, appeals to the prurient interest,

Whether

the

work

offensive way,

depicts

sexual

or

describes,

conduct

in

a patently

or

excretory

functions specifically defined by applicable state law,

Whether

the

work,

taken

as

whole,

lacks

serious literary, artistic, political, or scientific value.

The

work

is

considered

obscene

only

if all

three conditions are satisfied. The first two prongs of the Miller test are
held to the standards of the community, and the last prong is held to what
is reasonable to a person of the United States as a whole. The national
reasonable person standard of the third prong acts as a check on the
community standard of the first two prongs, allowing protection for works
that in a certain community might be considered obscene but on a
national level might have redeeming value.

The Justice Verma Commission in its report on Criminal

Law (Amendment) Act, 2013 in the recommendations and suggestions
part had laid down certain standards and mechanisms to be adopted while

dealing with crimes against women. It involves discussion ranging from

the concerns from the atmosphere of the courts to adoption of scientific
methods of investigations. It has also specifically noted that : Every Judicial Officer has to give up the casual,
technical and traditional approach while working in Courts dealing with
the cases relating to crimes against women. In the matters of remand,
bail, recording of evidence and during trial a Judge should be very
attentive, cautious and innovative. Polite in behaviour but firm in action
policy is required for implementation of amended provisions of criminal
law. We have experienced it that legislature has amended the criminal
laws on number of occasions. But, the amended provisions of criminal law
are not properly implemented by the Courts due to its mechanical and
technical approach. It is seen that in District Courts Judges usually
become harsh in language but polite in action, on the other hand, the
Judges should be very polite in language, but firm in action. Very firmly,
but

politely,

the

amended

provisions

of

criminal

law

should

be

implemented.
The report also emphasizes the need to give priority and
strict implementation to the cases relating to crimes against women.
Dedication

of

the

Judge,

developing

feedback

mechanism

and

disciplining the procedure are few amongst the various measures set out
in the report to improve the situation of crimes against women. The
Judiciary in India well equipped with the weapon of Judicial Review by

which it can keep a check on the actions undertaken by the other organs
of the government too.

Apart from these regulatory measures ventured by the

Judiciary, various preventive measures have also been observed like,

Identification of exposures through education will assist responsible

companies and firms to meet these challenges.

One should avoid disclosing any personal information to strangers

via e-mail or while chatting.

One must avoid sending any photograph to strangers by online as

misusing of photograph incidents increasing day by day.

An update Anti-virus software to guard against virus attacks should

be used by all the netizens and should also keep back up volumes
so that one may not suffer data loss in case of virus contamination.

A person should never send his credit card number to any site that
is not secured, to guard against frauds.

It is always the parents who have to keep a watch on the sites that
your children are accessing, to prevent any kind of harassment or
depravation in children.

Web site owners should watch traffic and check any irregularity on
the site. It is the responsibility of the web site owners to adopt some
policy for preventing cyber crimes as number of internet users are
growing day by day.

Web servers running public sites must be physically separately

protected from internal corporate network.

It is better to use a security programmes by the body corporate to

control information on sites.

Strict statutory laws need to be passed by the Legislatures keeping

in mind the interest of citizens.

IT department should pass certain guidelines and notifications for

the protection of computer system and should also bring out with
some more strict laws to breakdown the criminal activities relating
to cyberspace.

As Cyber Crime is the major threat to all the countries worldwide,

certain steps should be taken at the international level for
preventing the cybercrime against women.

A complete justice must be provided to the victims of cyber crimes

by way of compensatory remedy and offenders to be punished with

highest type of punishment so that it will anticipate the criminals of

cyber crime against women.

Judiciary has, thus, played a crucial role in development

and evolution of the laws. The role of judiciary, particularly in the matters
of

safeguarding

the

rights

of

women

in

cyberspace

has

been

commendable and instrumental in achieving the goal of good governance

in a free society.