Photographing woman while she is out in public not voyeurism: Kerala High Court

The Kerala High Court recently observed that if a woman is in a public or open area where she would not normally expect complete privacy, and someone sees or takes her picture without exposing any of her private parts, it would not amount to the offence of voyeurism [Ajith Pillai v State of Kerala].

Justice A Badharudeen made it clear that only watching or capturing images of a woman involved in a private act, in a setting where she expects privacy, is punishable.

"Indubitably, watching or capturing the image of a woman, engaged in a private act in circumstances where she would usually have the expectation of not being observed either by the perpetrator or by any other person at the behest of the perpetrator or disseminates such image alone is punishable. If a woman normally appears in a public place or private place not in circumstances where she would usually expect, any other person if either see or captures her image, the same, in no way, affect her privacy by exposing the genitals, posterior or breasts are exposed or covered only in underwear etc., no offence under Section 354C of the IPC, would attract," the Court stated.

The Court made these observations while hearing the plea by one, Ajith Pillai,  who had sought to quash charges under Sections 354C (voyeurism) and 509 (word, gesture or act intended to insult woman's modesty) of the Indian Penal Code (IPC).

The complainant had alleged two men (the petitioner and another accused) took photographs of her outside her house and made sexual gestures to insult her modesty in May 2022.

The Court explained that a "private act" under Section 345C of the IPC (which deals with voyeurism) is one where a person would reasonably expect privacy - such as when their private parts are exposed, they are using a bathroom, or engaged in a private sexual act.

In this case, however, the incident took place in front of the complainant’s house. Therefore, it cannot be considered voyeurism, the Court opined.

“Even though explanation 1 to Section 354C provides that 'private act' includes an act of watching carried out in a place which, in the circumstances, would reasonably be expected to provide privacy and where the victim's genitals, posterior or breasts are exposed or covered only in underwear; or the victim is using a lavatory; or the victim is doing a sexual act that is not of a kind ordinarily done in public, the occurrence is in front of the house of the de facto complainant. Therefore, it could not be held that the said offence is made out,” the Court said

Accordingly, the Court quashed the voyeurism charge under Section 354C against the petitioner. However, the Court allowed prosecution to continue against the petitioner under Section 509, IPC which concerns acts that to insulting a woman's modesty.

The Court added that based on the facts of this case, the alleged actions of the petitioner could also fall under Section 354A (sexual harassment) of the IPC.

The Court noted trial court should still review whether there is enough evidence to proceed with charges under Section 354A during the charge-framing stage.

Advocates Sreekanth KM, TP Rashmy, and Arjun T Pradeep represented the petitioner, while Public Prosecutor MP Prasanth appeared for the State.

[Read order]