Malavika Rajkumar and Rohit Ghosh

The heads have started rolling. The #MeToo movement has taken the country by storm the second time around, courtesy the shockwaves of the Kavanaugh developments in the United States.

Common experiences are being brought onto the public domain and social media is playing a big role and shared accounts of harassment is finding resonance among all women who have faced sexual harassment over the years.

In the groundswell of support for victimized women, perhaps one common experience most women have undergone has been that of stalking. Before the advent of the internet age, the offence was not even recognized in the statute. Social media platforms like Facebook, Twitter etc. have given stalkers a new weapon to victimize women and harass them online. The recognition of stalking as an offence, was a slow and gradual process which finally got introduced in the statute after the 2013 Criminal Law Amendment.

Legal History and Developments

The Indian Penal Code, 1860 (“IPC”) being a colonial law, did not contemplate stalking as an offence at all. The only protection to women was under Section 354 for sexual harassment and Section 509 IPC for using words or gestures to insult the modesty of a woman.

Under Section 354 of the IPC, whoever assaults a woman knowing that it would outrage her modesty is liable to be punished under the law. The essence of a woman’s modesty is her sex. The ultimate test to be seen if a woman’s modesty is outraged is to see if the act or assault would amount to shocking the sense of decency of a woman. The law makes it punishable only if three ingredients are met – that is, the assault must be on a woman, the accused must have used criminal force and that it should outrage her modesty.

In fact, the Magistrates did not always take cognizance of cases under sexual harassment until in Rupan Deol Bajaj v. Kanwar Pal Singh Gill (1995) the Supreme Court unambiguously directed the Magistrate to take cognizance of the complaint under Section 354 read with Section 509.

The landmark judgement Vishaka v State of Rajasthan (1997) discussing Sexual Harassment at the Workplace law, was also a big step to recognize women being targets of sexual harassment in various forms. Another important judgment expanding the jurisprudence of the subject in service law was that of Apparel Export Promotion Council v. A.K. Chopra (1999) which ruled that each act of sexual harassment resulted in violation of fundamental right to equality and right to life and personal liberty of women employees.

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. However, cyber stalking as a standalone concept was not directly addressed under this Act. What the IT Act sought to do was to address the consequences of online stalking. For example, in a scenario, where multiple accounts are created to stalk a person online, the IT Act tackles this provision and terms it to be an offence of Impersonation under Section 66D. Here a person is assuming a fake identity with an intention to deceive another or cheats by using a computer or a communication device.

In another scenario where a person is stalking a person online and sexually harasses someone by sending obscene pictures, like in the case of Utsav Chakraborty, then, it becomes an offence under Section 67, for transmitting material which is obscene in nature and in a scenario where the content is sexually explicit material then it is an offence under Section 67 A for transmitting material containing sexually explicit acts.

One of the major offences associated with stalking is that of ‘eve teasing’. In 2012, the Supreme Court laid down 8 guidelines to curtail eve teasing in its judgment of Inspector General of Police v. S. Samuthiram (2013). The Court addressed the importance to take up complaints by victims and bystanders, for eve teasing in public places such as public transport, educational institutions, cinema theatres etc.

Stalking and the Law

After the multitude of offences against women and the increasing violence, in 2013, the Criminal Law Amendment Act was introduced through the Justice Verma Committee. Stalking, both online and offline, was recognized as an offence under Section 354D.  The Amendment Act of 2013 also brought changes including the offences of Sexual harassment, voyeurism, Trafficking etc. bringing in stringent punishments for these offences.

Stalking is a form of harassment comprising of repeated and persistent following with the intention of harming or causing fear to the person being followed. It can be in various forms- physical or online and under the law only a man can stalk a woman. This means that, the law is not gender neutral and the recourse is only for the woman.

If a man follows a woman to contact her or contacts her to foster any interaction, then this amounts to stalking. A woman may or may not know she is being stalked and if a clear indication of disinterest is shown by the women and the act of stalking continues, it is a crime under the law.

Stalking may also take the form of harassing telephone calls, computer communications, writing letters etc. or it can also happen on an online platform when a man monitors and harasses a woman on the internet, email or any other form of electronic communication. The act of stalking as of today, is a cognizable and bailable offence with a punishment up to three years and fine for the first conviction and five years and fine for the second conviction.

Understanding the offence of Stalking

The crime of stalking is not a standalone crime and is of a nature where many other offences in the law are interlinked. A woman who is stalked, is not only being mentally harassed, she may be sexually harassed, eve teased and her modesty may also be outraged.

In 2016, the Bombay High Court in Shri Deu Baju Bodake v The State of Maharashtra, looked into a case of suicide by a woman who claimed that the reason for her suicide was the constant harassment and stalking done by the accused. The accused would always stalk her during work and insist upon getting married to her. The High Court held that the charges under Section 354D ought to have been recorded in addition to the charge for abetment to suicide.

This points to the state of investigation of cases by the Police, where lack of understanding of the law prevents successful prosecution at the future stage, where evidence may exist. Perhaps Bollywood has a role to play here, making stalking seem as harmless fun which, in the film Ranjhanaa, eventually developed into love between the stalker and the victim. This toxic culture now pervades our society and inevitably affects our perception of the offence itself.

Online and Offline Harassment

Usually when cases are filed, the offence of online stalking has to be introduced with Section 354-D IPC read with provisions of IT Act, like in the judgment of the Orissa High Court in Kalandi Charan Lenka v State of Orissa (2017).

In that case, the accused had proposed to marry the victim and when the marriage could not be finalized, he had transmitted obscene letters and scandalous mail and even published pamphlets denigrating the character of the victim. Through the obscene and vulgar mails and creation of the fake Facebook Account in the name of the victim girl, the accused exhibited his intention to intimidate her with the purpose of exploiting her sexually. Even when the girl had changed her place of study because of the sexual harassment, the accused had followed her, only to harass her, both online and offline.

The Cyber Cell of the Crime Branch had investigated the same and the High Court held that the accused was prima facie liable for offences under Section 354A, for sexual harassment, 354D for online stalking under the Indian Penal Code, 1860, Section 66-C for identity theft, Section 66-D for Impersonation and Section 67 and 67 for transmitting obscene and sexually explicit material online.

So far however, successful prosecutions under the provisions have not been seen in appellate forums. The beginning of a successful prosecution is by first framing charges under the relevant sections. Omission to do so, points to a lack of understanding of the law and must be prevented at the very outset.

The way forward

In what is surely a welcome development, a resolution was passed in March 2018 by the Delhi Assembly due to the large instances of violence against women, to amend the law and make stalking a non-bailable offence and this is set to be tabled in the Winter Session.

The fallout of the #MeToo movement promises to initiate an open dialogue on all forms of sexual harassment being faced by women in India. The narrative must also consider seriously, the problem of online stalking to safeguard the right of women to be free from harassment in the cyberspace. The law enforcement authorities must also gain a better understanding of the issue and investigative techniques must also evolve to keep pace with changing times. Social media can be a potent weapon to call out elements lurking in the dark and preying on the innocent.  We must effect changes in law and policy with persistent effort, undaunted courage and clarity of thought.

Malavika Rajkumar is a Legal Researcher at Nyaaya, an initiative of Vidhi Centre for Legal Policy. Rohit Ghosh is an Advocate practicing in the Supreme Court of India.