15/07/2020
Advocate Manasi Chaudhari
Recently, there has been an uproar all over the internet- a man named Shubham Mishra posted a 2-min video with a very graphic rape threat against female comedian Agrim Joshua. In the disturbing video, Joshua went into details about how he wants to rape Agrim Joshua (and apparently, her mother). Why? All because Joshua had made a joke related to Chhtatrapati Shivaji Maharaj from material available on the website Quora, one year ago.
It seems like this Shubham Mishra suddenly woke up one day, realised he didn’t have any content to post, and decided to get his 2 minutes of fame by issuing rape threats. What he did is not only disgusting and disturbing, but it is also illegal. Latest reports say an FIR has been filed against him by the Vadodara police.
We explain to you which laws make Shubham Mishra’s actions illegal, and how they apply to his video.
The Vadodara police have filed an FIR against Shubham Mishra under the following legal provisions (from information available in news reports). We think it is important for you to know, so you don’t just know that he has been arrested, but also how come he has been arrested:
| Indian Penal Code Section No. | What it says + How it applies in this case | Punishment + Bailable/Non-Bailable |
|---|---|---|
Women related provisions |
||
| 294 - Obscene acts and songs | Makes doing an ‘obscene act’ in a public place a criminal offence. Here, the ‘obscene act’ is posting the video with the rape threats and the ‘public place’ will be the digital space where it was posted publicly. | Maximum imprisonment for 3 months + fine Bailable |
| 354(A) - Sexual harassment | This section defines different types of sexual harassment. One type of sexual harassment is making sexually coloured remarks against a woman. Shubham Mishra’s rape threats will also be considered ‘sexually coloured remarks’ and count as sexual harassment. | Maximum imprisonment for 1 year + fine Bailable |
| 509 - Outraging the modesty of a woman | Makes it criminal for any person to insult the ‘modesty’ of a woman through words, acts, or gestures. Shubham Mishra’s video clearly more than outraged Agrim Joshua’s modesty. | Maximum imprisonment for 3 years + fine |
General provisions- not specific to women |
||
| 504- Intentional insult with intent to provoke breach of peace | Makes it criminal for any person to intentionally insult another person, with the intention of provoking that person and breaking public peace. Although this law is not specifically for sexual harassment, it can be said that Shubham Mishra’s video has ‘insulted’ Agrim Joshua in a way that it could break public peace. This section is not normally used, as it is more relevant to public peace. However, since in this case there was public outroar, the police may have chosen to apply this section also. | Maximum imprisonment for 2 years + fine Bailable |
| 505 - Statements conducing public mischief | One part of this section makes it criminal for any person to publish or circulate statements which can cause fear or alarm to the public. Again, this section seems to have been pulled in because of the public outcry. It may or may not always be used in such cases. | Maximum imprisonment for 3 years + fine Non-bailable |
| 506 - Punishment for criminal intimidation | Criminal intimidation basically means if a person threatens another person with physical injury or damage to his/her reputation or property. This will apply even if you threaten a person to cause injury to his/her family member. Shubham Mishra’s rape threat to Agrim Joshua is obviouly a threat to cause injury to Agrim Joshua as well as her reputation. Reports also say he threatened to assault her mother. This will also fall under the second category- threatening to cause injury to a family member. | Maximum imprisonment for 7 years + fine Bailable |
We do not know whether the police have also included these laws in their FIR. However, these laws can also apply:
| Information Technology Act Section No. | What it says + How it applies in this case | Punishment + Bailable/Non-Bailable |
|---|---|---|
| Section 67 | Makes it illegal to publish or transmit digitally any obscene material which is ‘lascivious’ or appeals to prurient interest - in other words - which is lewd or lecherous in nature. Shubham Mishra’s video falls squarely under this, as it graphically describes a rape threat. | First time offender- Maximum imprisonment of 3 years + Fine upto Rs.5 lakhs Second or more time offender- Maximum imprisonment of 5 years + Fine upto Rs.10 lakhs Bail: First time offender- Bailable Second or more time offender- Non-bailable |
| Section 67A | Makes it illegal to publish or transmit digitally any material containing a sexually explicit act or conduct. Naturally, Shubham Mishra’s video again falls under this provision. Interesting fact: Not just Shubham Mishra, but anyone who shared his video could also be penalised, because they have transmitted the sexually explicit content. | First time offender- Maximum imprisonment of 5 years + Fine upto Rs.10 lakhs Second or more times offender- Maximum imprisonment of 7 years + Fine upto Rs.10 lakhs Bail: Always Non-Bailable |
Again, we don’t know whether the police has used this law in their FIR, but it can apply:
| Section 4, Indecent Representation of Women (Prohibition Act) | Makes it illegal for any person to produce or even distribute any material which represents women in an indecent form. Shubham Mishra’s video obviously represented Agrim Joshua indecently, therefore, this will apply. Also, as explained above, it will also apply to people who further circulated/shared his video. | First time offender- Maximum imprisonment of 2 years + Rs. 2000 fine Second or more times offender- Maximum imprisonment of 5 years + Rs. 10000 fine Bail: Always Bailable |
If you carefully observe the legal provisions of the Indian Penal Code we have listed above, you will notice that the ones related to women have a mild punishment (starting from 3 months upto 3 years) and are bailable. In contrast, the provisions which are focussed on public order, have a much stricter punishment (starting from 2 years upto 7 years). One of them (Section 505) is also non-bailable. If the police had not applied Section 505, which would not normally apply to such a scenario, Shubham Mishra could have easily obtained bail at the police station itself by paying a nominal bail bond. After that, he would be free to roam around and issue further threats to Joshua Agrim or others.
What does this say about the law? It shows a clear differential treatment between crimes against women and crimes which threaten public peace. Crimes against women certainly rank lower than public peace!
The shocking part is that this man, Shubham Mishra, brazenly dared to put up such a video on social media in the first place! However, the good news is, Shubham Mishra has been arrested through proactive action by the Vadodara police. His arrest and the publicity given to his arrest will hopefully serve as a strong reminder to every foolish man in the future who dares to openly threaten a woman with rape or any other sexual assault. So watch out sexual offenders, for the law is watching you, and your threats can put you in jail!
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