Authored by: Vaishnavi Bansal and Saurav Thampan
The onset of COVID-19 pandemic in the world and the changes brought along with it have overturned the world of humans, with social distancing and virtual activities being the new norm. The education sector too, has experienced this with the emergence of virtual classrooms. These have the ease and comfort of taking place from within the safe spaces of home, but they bring with it their share of hardships for both students and teachers. Statistics published by the recent Reuters report showed that after the lockdown the cases of cybercrimes have soared by 86% in India. Needless to say, cyberbullying has its own high share of proportion in this. It is to be noted that a neglected but unignorable aspect of cyberbullying is the cyberbullying faced by teachers on online platforms.
Cyberbullying against Teachers
Cyberbullying against teachers takes varied forms during online classes ranging from harassment, flaming, impersonation, outing, trolling and catfishing. Everyday there are instances of teachers being harassed by students, parents and even random strangers. Often teachers find themselves in embarrassing situations as lewd and obscene messages and videos are posted on group chats of online classes, sometimes by fake ids, impersonation by students or by cases of unauthorised access.
The problem is not limited to the vanishing decency in the public sphere, but it aggravates further as it also touches the cornerstone of privacy. This not only connotes the problem of unauthorised access by miscreants into class, but there are also instances of parents and guardians interfering into the manner in which the classes are conducted.
The issue of intellectual property right violation also arises as there are, at times, unauthorised recording of lectures and videos which are prepared exclusively for the students. It is difficult to keep a check on this in the virtual system. This poses a greater threat when they are circulated online for nefarious purposes. An example is the recent case of an English teacher in Kerala whose lectures went viral and there were heavy trolling and memes made on her, some of which even had sexual undertones.
There is no specific law in India which deals with cyberbullying. However, there are certain provisions in the Information and Technology Act 2000 (IT Act) and the Indian Penal Code 1860 (IPC) which are made applicable by widening their scope. The provisions of IT Act which are applicable are, Section 67 dealing with the transmission of obscene material in electronic form, Section 66C dealing with identity theft, Section 66D dealing with cheating by impersonation, Section 66E dealing with violation of privacy and Section 72 dealing with breach of confidentiality and privacy. Similarly, under IPC, Section 507 which provides for criminal intimidation by an anonymous communication and Section 500 concerning defamation, could be invoked too as cyberbullying involves nothing but the commission of these offences on an online platform. All of these provisions provide punishment of imprisonment or fine or both. University Grant Commissions (UGC) anti ragging guideline also provides comprehensive regulations for bullying behaviour by college students and its scope can be extended to include bullying behaviour through online mediums and against teachers as well.
Another point to note is that incidents of cyberbullying of female teachers generally seem far greater in number when compared to that of male teachers. Since cyberbullying of teachers include acts such as harassment and posting of lewd comments, Section 509 of the IPC can be used which intends to protect the modesty of women from words, gesture or acts. The section gives a very wide ambit to the word ‘modesty’ and any insult to the modesty of a woman and not a mere insult to a woman attracts the liability under the provision. It has also been held by the Supreme Court in Rupan Deol Bajaj vs Kanwar Pal Singh Gill that if a word uttered or gesture made, results or has a potential to bring down the decency of a woman, such an act falls under the ambit of insult to the modesty of a woman. Many times, cyberbullying can result in tarnishing the reputation and showing female teachers in an indecent light. Therefore, female teachers can also make use of this Section as a recourse.
Reliance can also be made on Section 354 of the IPC. This Section deals with an assault or criminal force done with an intent to outrage the modesty of a woman. Criminal force includes actions which will induce fear or annoyance on the person on whom the force is used. Assault includes gestures which will cause the person to apprehend criminal force.
All these regulations even in its entirety, cannot be said to fill the lacuna in the law and provide a defensible solution because of the unique nature of the issue and the general nature of these provisions. Another complication that may arise is that if the offender is a college student or a miscreant from outside, they could be tried under the Criminal and Procedure Act, 1973 (CrPC) but the same approach cannot be taken for school students as a majority of them come under the juvenile category and hence Juvenile Justice (Care and Protection of Children) Act 2015 would be made applicable on them which envisages that juvenile in conflict with law should not be punished rather reformed. No punitive or deterrence measures are available in such a scenario. Also, there is a tendency to consider bullying of teachers as minor misdemeanour than the graver issue it actually is.
Not just the dearth of law or Parliamentary legislation, also the blindsight of institutions like NCERT, UGC etc. regarding the plight of teachers has created this hurdle. While various institutions have done commendable work in introducing protocols and guidelines for protection of students in this virtual set up but no protocol exists for safeguarding the teachers. For example, UNICEF has issued an advisory for the Protection of children online. NCERT and UNESCO have also issued Guidelines for students in online classes for protection against cyberbullying but the scenario of cyberbullying of teachers by students have so far been completely overlooked.
Taking inspiration from foreign jurisprudence
In the US, the issue of bullying faced by teachers of all levels had been widely debated long before the pandemic acted as a catalyst for the emergence of online classes. They have also included bullying faced by teachers as an important part in the legislations which is completely overlooked in India. To be specific, the State of New Carolina in 2012, passed the School Violence Prevention Act, to prevent students from bullying teachers. As per its Section 115C‐407.5, a pattern of gestures, communication, physical act or threat which is undertaken in the school or at its functions that places a school employee in fear of damage to his person or property constitutes bullying and harassing behaviour. Subclause (b) expressly states that a school employee shall not be subjected to bullying by other school employees or students. Section 14‐458.2, provides penalty for acts of cyberbullying. The law also criminalises the cyberbullying of teachers. The scope of operation of this law can be extended to be made applicable to this shifting of classes to online platforms as well, bearing in mind the recent rise in online classes due to the impact of the pandemic. Various other states of the US such as Florida, Kansas and Nevada have also enacted similar laws which protect school staff members from cyberbullying. Since these problems exist worldwide, Indian lawmakers also could draw a parallel and urgently think of incorporating it into our laws.
The judiciary in the US has also given considerable thought to the bullying of teachers. In the case of Tinker vs Dey Moines (1969), the court held that for an act to constitute bullying, the action of the student must “materially and substantially disrupt the work and discipline of the school.” However, it is to be noted that the case was heard long before the advancement of digital classes and are with respect to physical classes. In cases thereafter, the court has looked into whether the action of the students disrupts the learning environment, to determine whether bullying of teachers have taken place.
It is worth noting that the Indian judiciary has neither adopted the Tinker Test nor adjudicated on any such alike matter with the view of teacher student relationship. It may be prudent for the Indian judiciary to consider adopting this test.
Need for a change in the test in the modern context
When the test of Tinker vs Dey Moines is applied in the modern-day scenario, some changes are needed in its scope of application as one of the important factor i.e. physical classroom is changed into an online classroom. What is seen as disrupting the learning environment in a physical class context may substantially vary from what is seen as disruptive in online classes. In a physical class there is a lot of scope for the teacher to control the situation due to the physical presence of students. However, this is absent for online classes and even a small act of nuisance done from behind the screens can disturb the whole learning environment of the class.
Also, a negative comment or video uploaded on an online platform has a long digital memory. It could stay online and snowball into a matter which has a substantive impact on the learning environment and affect his/her life and future job prospects. Hence, an exhaustive and wide interpretation on what constitutes disruption is required, if the Indian judiciary decides to implement this test in the present context.
Another possible solution might be for the legislature or a competent administrative body to intervene, similar to that done by the State of New Carolina, and come up with a law to prevent cyberbullying of teachers. A concern that may arise might be that such legislation might be redundant in scope. The incidents of cyberbullying of teachers may come down once the pandemic subsides, enabling educational institutions to go back to physical classes. However, it is uncertain as to when that will be and how many educational courses will continue to be taught online. Thus, intervention by appropriate authority is the need of the hour.
Interim way out
Moreover, it is to be noted that educational institutions are also responsible for providing a safe working environment to teachers according to the National Policy on safety, health and environment at workplace. Since the workplace has now transcended to online platforms, it is the duty of the educational institutions to set up safety measures. One possible way to do this may be by undertaking internal disciplinary action against students who engage in such acts.
Another workable alternative available to educational institutions, especially concerning outside miscreants, is to use softwares that are customised institution specific. This will ensure better vigil and give more control of the class to the teacher regarding only the already registered users entry. Strong password protection and training teachers on how to handle cyberbullying and taking legal recourses like using government helpline numbers for cybercrime online complaints or emailing at [email protected] are other options. These online complaint centres maintain complete privacy standards and offer a timely redressal in comparison to physically lodging of the complaint.
The instances of cyberbullying of teachers on the online platforms are increasing which is not only affecting their rights but also their morale and with no legal framework the redressal of their grievances have become nearly impossible. Institutions like NCERT, UGC who could have made an impact, are having an ostrich mentality for such a sensitive issue. The steps taken by the educational institutions can only form interim solutions and not be called panacea to the problem while the government and authorities acknowledge this new domain of rights violation and address the issue by rolling out some guidelines specifically for dealing with cyberbullying of teachers on online platform.
The authors are undergraduate students at National Law University, Jodhpur.