A Single Judge Bench of Hon’ble Justice Saurabh Lavania of the Allahabad High Court has observed in the case of Guruvinder Singh v. State of UP And Anr. 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 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.
Factual Background
The present bail application was filed by the applicant under Sections- 354Ka, 354Kha, 354Ga, and 354Gha, 376, 509, 323, 452, 504, 506 I.P.C. The Learned Counsel for the applicant submitted that as per the FIR, the informant/victim is posted as Naib Tehsildar at District Pratapgarh. As per the allegations made in the FIR, the applicant committed a 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 the 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 crimes 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 the crime with informant/victim and took obscene photographs. In the FIR, further allegations have been leveled, which are to the effect that the account of the informant/victim was operated by the applicant. The informant/victim was also threatened on phone and messages, as indicated in the FIR.
Reasoning and Decision of the Court
Before coming to the conclusion, considering the facts of the case, the Court looked into the terms “Dignity” and “Privacy”. The Court observed that,
"Dignity is the quality of being honorable, 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 society nor can it be legitimately granted by 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.”
The Bench further pointed 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.”
“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 behavioral 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 make crucial decisions that 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 conditions 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."
More significantly, the Bench then observed 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 cyberspace 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 held 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 the factual aspect of the case, which relates to living in relationship, which has been disputed by the informant/victim and statements of the 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 the sister of informant/victim as indicated in a supplementary affidavit dated 01.10.2021, to which, no reply has been filed despite 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.”
Case Details
Case Name: Guruvinder Singh v. State of UP And Another
Case Number: Bail No. 3669 of 2021
Date of Decision: October 4, 2021
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