What's Sex Got to Do with It? Mapping the Impact of Questions of Gender and Sexuality on the Evolution of the Digital Rights Landscape in India

Abstract

Issues relating to gender and sexuality have a considerable, but as yet undocumented, importance in digital rights related law in India, in some cases expanding such rights, but often reducing avenues of free speech, privacy, and anonymity for women online. However, so far, this intersection has not been systematically documented or analysed in any way. In this paper, we examine in detail how gender and sexuality issues have driven the development of digital rights related law in India. We interrogate intersection of gender, sexuality, and digital rights both in cases where where litigants have viewed women as objects of state control to be protected for their own safety, to safeguard public morality, and to uphold values of “Indian culture”; and where women's conduct online represents a deviation from stereotypical conceptions of an “ideal” daughter, wife, mother, and victim, and has made them the subject of social and legal control. Through an analysis of cases concerning regulation of OTT platforms, banning of pornography, intermediary liability, sexual harassment and #MeToo, the right to anonymity, and right to be forgotten, the right to internet access, ban on TikTok, and non-consensual sharing of sexual images online, we find that all too often, anxieties surrounding women’s sexuality continue to justify court cases and jurisprudence that are geared towards protecting middle class morality and a very narrow vision of “Indian culture” rather than gender and sexuality rights.