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This article is written by Khyati Basant, pursuing BBA LLB from Symbiosis Law School, Noida. This article gives a brief description of the law relating to stalking in India.

Introduction

Stalking cases have grown dramatically in India, with a conviction rate of 26.6%. A total of 7,190 stalking cases have been reported in India according to data from the National Crime Records Bureau ( NCRB). Though Maharashtra reported the largest number of stalking cases with 1,587, Delhi registered 835 of these cases. Quick 7,200 cases of bullying were reported in 2016. And while charges were filed against 7,073 accused persons, only 480 were convicted. Around 6,266 cases were registered in 2015, while 4,699 such cases were observed in 2014. A first-time stalking conviction is, sadly, bailable; repeat convictions are considered non-bailable. While stalking has risen by 50 per cent in the last three years, the rate of prosecution is still small.

Many of the world’s developing countries have seen a major change in perceptions as well as implicit thoughts towards women’s empowerment and emancipation. At any given point in time, women in the West are more safe, free and mindful of combating inequality or injustice. However, women are fighting to achieve equitable rights in developing countries like India. 

No matter if you are a student, a working woman or a housewife, most women in India have experienced stalking. About one in six women in her lifetime has witnessed stalking, be it in physical or electronic ways like by phone calls or by text messages. Stalking is an offence. The bullied victim has no way to overcome the fear and anxiety she experiences. Most incidents reported include male stalkers and female victims.

Stalking is much more widespread than most people think, particularly the social justice experts. These points, combined, underline the fact that stalking is an important policy issue for the criminal justice system, for organizations offering care to victims of abuse, and for activists dealing with violence against women. In reality, Stalking has received tremendous coverage from the news media.

The styles of stalkers mentioned are the “classical” erotomanic stalkers. They typically target public figures. A non-domestic stalker is the one who gets to know the victim through social interaction or a casual encounter in a public location and the domestic stalker is the one who stalks after when a real relationship with the victim has fallen apart.

What is stalking

Stalking is continuous contact which causes the person to feel frightened or abused. You can be stalked by someone watching you, or calling you regularly. Stalkers may also use devices to stalk you, by sending out unwanted emails or social media posts. Stalking means to stalk some single person regularly for a long period. This activity also involves threatening or harassing behaviour. The stalker constantly follows a person everywhere at home, on the street, etc., and the stalker even scares the person by sending the messages repeatedly, making blank calls etc. 

The word ‘stalking’ can be referred to in several ways, many of which have nothing to do with the use of the word in criminal law. The resultant uncertain capacity is barely understood. Many stalking practitioners don’t often differentiate between the word “stalking” in general use and as a word used in criminal law. However, in the sense of criminal law, the word ‘stalking’ refers to malicious conduct that risks a victim’s health, life and social status.

The definition of stalking is harassing or offensive conduct repeatedly perpetrated against a person. Stalking is a violent crime that leaves the victim in terror as they go through their everyday lives afraid for his or her health. Someone committing physical stalking is intentionally engaged in conduct that makes their target afraid of more abuse or potential harm. The victim may be afraid of their life and potentially hurt their intellectual, physical, or emotional health. If the victim fears for a partner or family member’s safety, this is often known to be physical bullying.

Stalking may either be for a short period or a long term. The stalking activity is threatening in nature. Usually, stalking activity involves the victim’s trailing and entering into the victim’s daily life. They persecute their victims through unwelcome advances, repeated phone calls, emails, e-mails, text posts, vandalism, notices and gifts. Severely violent conduct will often result in an attack, robbery, and even assassination of the person.

Stalkers typically suffer from serious personality problems or mental illnesses. Delusional stalkers exhibit primary erotomania, schizophrenia and personality disturbances. Those with extreme personality problems include antisocial, bipolar or authoritarian personality disorder. Many may have associated drug abuse problems. The incidence of bullying is growing among health care workers. Several approaches for avoiding victimization include protecting dignity and confidentiality, enforcing ethical standards, advising peers and interested stakeholders, moving medical treatment to another practitioner and taking legal action. 

Many such stalked victims change their jobs, switch venues, have hidden telephone numbers, invest in house alarms, and carry weapons or pepper sprays for self-defence. After a time of severe pain, they may also experience post-traumatic stress disorders.

What is cyberstalking

While emerging technology makes our lives simpler and helps us exchange things together, it has also had some negative impacts. The Internet is the most powerful new-age networking and information-sharing tool. It has reduced the distance between people, and with a few clicks  any information is accessible. Cyberstalking compromises an individual’s anonymity. Cyberbullying also requires the posting of sensitive information about the victim on public web sites, or the publishing of distorted or inappropriate photographs on online platforms. The stalker behaves in a manner which undermines the victim’s ability to choose his / her own life. Cyber-stalking is also called cyber-crime. Cyber means connected to the internet and stalking involves searching the personal records of someone with the aid of some social network or other websites to learn about that specific person is known as stalking. Cyberbullying includes the use of the Internet or any other electronic media that can be used to connect with that person through emails or SMS.

A cyberstalker depends entirely on the web’s inconspicuousness, which helps them to harass their prey without being identified. Cyberstalking is completely different from spamming the messages.

However, cyberstalking is reported more often than physical harassment – possibly because the internet and social media have made it much harder to commit this crime. But it’s worth noting that it doesn’t mean it’s less risky simply because cyberstalking doesn’t require physical touch. Cyberstalkers can use the Internet to reveal its victim’s data. When the stalker has hacker skills, they can access sensitive details about their target, such as their phone number Email address, social media accounts, home address and the place they live.

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Difference between offline and online stalking

In many ways web stalking and offline harassment are distinct. In both cyber and physical stalking the stalker’s purpose is the same. It is the urge to exert control over the target. With the spread of internet and web-enabled devices, any person can abuse another within the veil of anonymity, and within a matter of seconds, the whole world can see the offensive information. 

Unlike physical stalking the stalker’s time and effort are minimal and the cost is negligent as well. For example, an offline stalker can harass by making repetitive phone calls, but each such phone call requires his time and energy when he can program his machine in cyberstalking to deliver an offensive message to a specific individual at regular intervals without any further effort on his part.

Another fundamental difference between offline and cyberstalking is that innocent third parties may be incited to commit harassment during cyberstalking. For example, after repeatedly being rejected by the victim, a cyberstalker posed as the victim and posted in an online discussion forum that she fantasized as being raped. He released the victim’s name and address along with her telephone number, which led to people appearing at her home on several occasions to satisfy her wishes.

While the victim and the stalker need to be in the same geographic location in physical stalking, the act can be done from thousands of miles away in case of cyberstalking. Because of technological development, easy and cheap access to the internet improves the stalker’s ability to engage his activities behind a veil of anonymity from a faraway place without ever being in the victim’s presence. Cyberstalking from another country also makes investigation, evidence gathering and prosecution harder.

In comparison to the offline world, the stalker can quickly impersonate the target in the cyber realm. The stalker can quickly post offensive or pornographic comments under the name of the victim in an anonymous bulletin board that will result in the victim being on the receiving end of hate mails or inappropriate comments.

Cyberstalking is more terrifying than off-line stalking as it needs only limited effort, low expense, instant access and anonymity, as well as ample possibilities to pose as a third party.

What is the legal framework in India

Information Technology act

Section 66A of the IT Act, 2008 provides any person who sends, via a computer tool or a communication system (a) any information that is grossly offensive or threatening; or (b) any information that he knows to be false, but to cause irritation, nuisance, risk, interference, assault, harm, coercion, enmity, hate or ill will, persistently. Any electronic mail or e-mail address for the intent of causing irritation or distress or deceiving or misleading an addressee or receiver about the content of these communications shall be punished by incarceration for a period of up to three years and a fine.

Section 67 forbids and punishes the printing, dissemination and delivery of indecent material with incarceration extending up to three years and fine for the first conviction and up to five years and fine for the second conviction.

Section 67A has developed a special category of material called ‘sexually explicit act.’ Publishing, distributing or allowing any information to be distributed is punishable by imprisonment for the first conviction up to five years and a sentence of up to seven years and a fine for the second conviction.

Indian Penal Code, 1921

There was no legal definition for harassment or cyberstalking in India before 2013. Stalking has been recognised as a crime in India following the Criminal Law Reform Act of 2013, which adopted Section 354-D.

The Indian Penal Code Section 354D describes stalking as:

Any man who 1) tracks a woman and approaches or tries to contact such a woman to encourage personal engagement regularly given a strong sign of such a woman’s disinterest; or 2) controls the use of the Internet by a woman, email or some other means of electronic communication, commits an offence of stalking: Provided that such conduct does not amount to stalking because the person who pursued it proves that it was done for the intent of stopping or detecting crime and that the man convicted of stalking was charged by the State with the duty of preventing and detecting crime (ii) it was undertaken under any statute or to satisfy any obligation or necessity levied by any person under any statute. Section 354D’s wordings make clear that offline and online stalking can occur together or as separate acts. The section as such does not seek to describe cyberbullying, but it does take the context from Section 354D (2) in particular. 

Section 354D(2) makes the crime punishable by incarceration in the event of the first arrest for a term not exceeding three years with the fin. By this point, it is cognizable and bailable, but in the event of a second arrest, the sentence will come with a fine and an imprisonment for a fixed term of five years. On the second opportunity, the offence will be non-bailable.

IPC Section 354A punishes sexual assault offence with 3 years jail and/or fine.

Section 354C criminalizes the act of Voyeurism, which is defined as the act of capturing, without her permission, the image of a woman engaged in a private act and/or disseminating that image. The provision prescribes 3 years of first conviction imprisonment, and 7 years of second conviction imprisonment along with fine.

Section 503 punishes unlawful harassment as threats against any person harming his or her integrity, either to threaten her or to alter her course of action in respect to what she would otherwise do / not do. Crimes under S. 499 et S. 503 Is punishable by imprisonment of up to two years, and/or the penalty.

Section 507 punishes violent harassment by unauthorized contact through a sentence that can stretch to two years in prison. Under section 228a of the IPC, vengeful sharing of photographs or videos of rape victims is punishable by imprisonment that can amount to two years and the fine.

IPC Section 509 comes to the rescue if you are continually bugged by someone with offensive verbal harassment due to the gender. The section specifies that any person who pronounces any word or makes any sound or gesture, expecting a woman to hear or see any word, sound or gesture and offend her modesty, shall be punishable with one-year imprisonment and/or fine.

This provision addresses only a portion of cyberstalking and we will have to use Provision 67A of the Information Technology Act 2000, or Section 503 of the IPC to tackle the entire problem of cyberstalking based on the details and circumstances in the situation.

Case laws

  • Kalindi charan vs.state of Odisha – In that case, the accused had offered to marry the victim and had distributed lewd letters and scandalous mail when the union could not be concluded and had issued pamphlets denigrating the victim’s integrity. The accused exhibited his intention to intimidate her to exploit her sexually through the obscene and vulgar emails and the creation of the fake Facebook account in the name of the victim girl. Even when, due to sexual harassment, the girl had changed her place of study, the accused had followed her, only to harass her online and offline. The Cyber Cell of the Police Branch had prosecuted the same matter, and the High Court held that the accused was prima facie liable for sexual assault offences under Section 354A, 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 electronic dissemination of indecent and sexually explicit content.
  • Shri Deu Baju Bodke vs. The State of Maharashtra – In 2016, Shri Deu Baju Bodake v The State of Maharashtra’s Bombay High Court investigated a suicide case by a woman who alleged that the reason for her suicide was the accused’s continuous abuse and stalking. During work, the accused would always stalk 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.
  • Besides, the Magistrates did not always take cognizance of cases of sexual assault until the Supreme Court unambiguously ordered the Magistrate in Rupan Deol Bajaj vs. Kanwar Pal Singh Gill (1995) to take cognizance of the petition according to Section 354 read with Section 509.
  • The landmark judgment Vishaka vs. State of Rajasthan (1997), which discussed sexual harassment at workplace law, was also a major step towards recognizing women as targets of sexual harassment in different forms. Another relevant decision which broadened the subject’s jurisprudence in-service law was that of the Apparel Export Promotion Council vs. A.K. Chopra (1999) who ruled that any act of sexual assault resulted in the violation of the universal right of women workers to dignity and the right to life and personal rights.
  • Another of the big stalking-related crimes is that of ‘eve bullying.’ In 2012, the Supreme Court in its judgment of Inspector General of Police vs. S. laid out eight rules to curb eve-teasing. Samuthiram (1999). The Court highlighted the value of taking up victim and bystander grievances for eve bullying in public places such as public transit, educational establishments, movie theatres, etc.

Conclusion 

With its massive access and adequate funding, the Internet offers a convenient forum to commit crimes. Cyberstalking is one such crime which has evolved with the emergence of cheap and fast internet access over the last two decades.

Stalking is not a felony of its own and is of a type with which certain other crimes are interlinked in the legislation. A stalked woman is not only mentally harassed, she may be sexually harassed, teased, and she may also be outraged with her modesty.

The #MeToo movement’s backlash aims to launch an inclusive discussion on all kinds of sexual abuse that women face in India. The policy will also critically address the problem of online stalking to protect women’s freedom to be protected from cyberspace violence. The law enforcement departments do need to develop a deeper understanding of the problem and investigation strategies do need to change and keep up with evolving times.

The 2013 amendment resulting in IPC Section 354 D doesn’t address all aspects of cyberstalking. On the part of the law, there is no effort to describe the term cyberbullying or to clarify what it means to control the use of any electronic communication. The bill tackles only the privacy violation aspect which does not tackle certain issues such as sending threats or sharing threatening posts on social media. It also doesn’t address the issue of harassment by third parties due to Stalker’s actions.

Reference


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