RISHABH
INTRODUCTION OF STALKING INTO INDIAN LEGAL REGIME
RISHABH SACHDEVA 28 Jan 2020

INTRODUCTION OF STALKING INTO INDIAN LEGAL REGIME

INTRODUCTION OF STALKING INTO INDIAN LEGAL REGIME

Have you witnessed the uncomfortable stalking experience? Whether you're a college student, a professional at work, or a housewife, it doesn't matter— many women in India get stalked daily. The criminals are mostly hanging around in the neighborhood, outside workplaces and schools, etc.

WHAT IS THE BASIC DEFINATION OF STALKING?

Stalking is constant communication, which will make you feel frightened or abused. You may be stalked by someone who watches you or often calls you. Stalkers can also use apps to harass you by sending unwelcome emails or messages from social media. About one in six women in her lifetime have witnessed stalking.  Women are twice as likely to be stalked as men are. Stalking is a crime.

HISTORY OF STALKING AND ITS INTRODUCTION IN INDIAN LAW

The Indian Penal Code, which became a colonial law in 1860 ("IPC"), did not mention stalking as an offence. The only protection for women was for sexual harassment under Section 354, and Section 509 IPC for using words or gestures to insult a woman's modesty. Under IPC section 354, anyone who assaults a woman believing it will offend her modesty is liable to be prosecuted by law. Her sex is the essence  of a woman's modesty. The ultimate test to be seen if the modesty of a woman is offended is to see whether the act or attack will amount to disturbing a woman's sense of decency. The law only makes it illegal if three conditions are met–that is,

a)      The attack must be against a woman,

b)      The perpetrator must have used excessive force, and

c)      Their modesty should be offended.

In addition, the Magistrates did not always consider cases of sexual assault until the Supreme Court unambiguously instructed the Magistrate in Rupan Deol Bajaj v. Kanwar Pal Singh Gill (1995) to accept the complaint under Section 354 read with Section 509. Also a big step in acknowledging women as objects of sexual harassment in various forms was the Landmark judgment Vishaka v State of Rajasthan(1997) discussing sexual harassment at workplace. Another important judgment which broadened the subject's jurisprudence in service law was that of the Apparel Export Promotion Council v. A.K. Chopra (1999) ruled that every act of sexual harassment resulted in violation of the fundamental right of women workers to equality and the right to life and personal liberty.  One of the big stalking-related crimes is that of' eve harassment.' In 2012, the Supreme Court in its judgment of Inspector General of Police v. S. Samuthiram (1999) set out eight guidelines to curb eve teasing. The Court discussed the importance of taking up victim and bystander grievances for eve teasing in public places such as public transportation, educational institutions, cinema theaters, etc.

In a leading case, PRIYA MATOO CASE a young law student, her stalker Santosh Singh, the son of a former IPS officer, raped her and murdered her in her Vasant Kunj home. Mattoo pleaded with police, but nothing happened. Multiple complaints lodged with Vasant Kunj and RK Puram police in February and August 1995 forced Singh to give "police undertakings but they were not disincentive. Mattoo was alone at home on January 23, 1996, when she was raped by Singh and then killed. Afterwards the case was transferred to CBI IN 1996. The trial court convicted Singh in December 1999, giving him the benefit of doubt. The high court ruled and awarded him the death penalty. He was later granted life imprisonment by Supreme Court in December 2010.

In 2013, the Criminal Law Amendment Act was passed through the Justice Verma Committee after the multitude of crimes against women and the increasing violence. Online as well as offline, Stalking has been identified as an offense under Section 354D.  The 2013 Amendment Act also introduced reforms to crimes involving sexual harassment, voyeurism, trafficking, etc., resulting in severe penalties for such offenses. Section 354 (D) of Indian Penal Code,1860 defines Stalking as:-

(1)    Any man who—

(i)                 follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman; or

(ii)               monitors the use by a woman of the internet, email or any other form of electronic communication,

Commits the offence of stalking;

 Provided that such conduct shall not amount to stalking if the man who pursued it proves that—

(i)                 it was pursued for the purpose of preventing or detecting crime and the man accused of stalking had been entrusted with the responsibility of prevention and detection of crime by the State; or

(ii)               it was pursued under any law or to comply with any condition or requirement imposed by any person under any law; or

(iii)             in the particular circumstances such conduct was reasonable and justified.

 

(2)     Whoever commits the offence of stalking shall be punished on first conviction with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; and be punished on a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine.

CLASSIFICATION OF OFFENCE

Punishment-Imprisonment upto 3 years and with fine for first conviction-Cognizable-Bailable-Triable by any magistrate. Punishment-Imprisonment upto 5 years and with fine for second or subsequent conviction-Cognizable-Non bailable-Triable by any Magistrate.

Stalking can also take the form of unwanted telephone calls, computer messages, writing letters, etc., or it can also happen on an online platform when a man watches and harasses a woman on the internet, email or any other form of electronic communication.

INFORMATION TECHNOLOGY LAW AND CYBER STALKING

The Information Technology Act, 2000 was the next step to check offences in the cyberspace. Chapter IX of the Act deals with the offences including identity theft, impersonation, sending obscene material etc. Under this Act, though, cyber stalking as a standalone concept was not addressed directly. What the IT Act was trying to do was address the online stalking consequences. For example, in a situation where several identities are produced to harass a person online, the IT Act defines this provision and explains it as an impersonation offense under Section 66D. Here a person assumes a fake identity with the intention of deceiving or misleading another person using a computer or communication device

There are three forms of Cyber Stalking which are as follows:-

1.      The first is email harassment and can take many forms such as unsolicited, whether it is a scene or a threat message.

2.      Then internet stalking takes place. Here the stalker uses the internet to slander and endanger the victim. In such cases cyber stalking takes on a public dimension rather than a private one. What disturbs this type of cyber stalking is that it is likely to spill into the physical space.

3.      The third mode of cyber stalking is computer stalking which exploits the workings of the internet and the Window operating system in order to assume control over the computer of the targeted victim.

In a leading case in 2016, Shri Deu Baju Bodake v The State of Maharashtra's Bombay High Court investigated a suicide case by a woman who claimed that the reason for her suicide was the accused's constant harassment and stalking. At work the accused would always harass her and insist on marrying her. In addition to the charge for abetment to suicide, the High Court held that the charges under Section 354D should have been registered.

JUDICIAL PRONOUNCEMENT

Kalandi Charan Lenka v State of Orissa (2017)

The informant is a student studying at the Women's College Pattamundai in Pattamundai. Among other items, it is alleged that her father has three daughters and that his first daughter is a mentally retarded girl and that the second daughter is the informant. The victim girl came in her mobile alleging her character while researching unknown obscene messages at School. Before this also from unknown mobile number, pornographic messages influencing the informant's character also came across her father's cell phone. Her father after passing the message became sorry and told the informant-victim about the matter. Thus the victim's wife became mentally disturbed to see these disgusting texts. The written letters containing obscene languages imputing the victim girl's character then came to her father during the year 2015-2016. Those letters came with sexual comment and a template that denigrated the victim girl's character. The messages not only influenced the victim girl's character but also linked the other male members to the victim girl for having sex. The Cyber Cell of the Crime Branch had investigated the same issue, and the High Court held that the accused was prima facie liable for sexual harassment offenses under Section 354A, 354D for cyber stalking under the Indian Penal Code, 1860, Section 66-C for identity theft, Section 66-D for impersonation and Section 67 and 67 for electronic transmission of obscene and sexually explicit content. Therefore the application for the bail was also rejected.   

IMPROVEMENTS IN STALKING LAW

Due to the large cases of violence against women, the Delhi Assembly adopted a resolution in March 2018 amending the law and making the stalking a non-detrimentable offence, which is expected to be tabled in the Winter Session. The price had been high for five of India's most famous accusers. A teenage woman of a lawmaker's alleged rape tried to burn herself outside her state chief minister's home, after her father died in police custody. The guy she accused has sued a high profile journalist for defamation. Another reporter says she has trouble finding work. And a Bollywood actress says she feels her accusations have led to real change in India, though the consequences since she first made them over a decade ago have contributed to her exhausted decision to move to the US.

The year 2018 MeToo movement's backlash aims to launch an open dialog about all forms of sexual abuse that women face in India. The policy must also strongly consider the issue of online stalking to safeguard women's right to be free from cyberspace violence. The law enforcement agencies also need to gain a better understanding of the problem and investigative techniques also need to change to keep pace with changing times. 

#METoo

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