This article is penned down by Pranjali Aggarwal of the University Institute of Legal Studies, Panjab University, Chandigarh. This article deals with voyeurism, its origin and provisions in Indian law, and how to combat it.
The newspapers nowadays are filled with excerpts revealing the reality of growing crime against women in India. Despite being provided the same fundamental rights as men and even some special provisions that allow positive discrimination for the upliftment of their status and to protect prejudices against them, still, women fall prey to such felonies. Voyeurism is one such offense against women that sometimes lays the basis for other major offenses. In India, the cases of voyeurism are rising every year. According to the NCRB report of 2019, the cases recorded were 2419 whereas it was 1393 in the year 2018. In Maharashtra, maximum cases were recorded followed by Delhi. In the year 2020, 144 complaints of voyeurism were filed with the National Commission for Women.
What is voyeurism
The word voyeur is derived from the French word ‘voir’, which comes from the Latin word ‘videre’ and both mean ‘to see’. Voyeurism is defined as a practice under which one gains sexual pleasure by secretly observing or watching others, either naked or engaged in any intimate or sexual activity like bathing, disrobing, etc or engaging in any activity that would be usually considered as ‘private’. The victims of voyeurism are not aware that they are being watched, recorded, or photographed as they believe themselves to be in a situation of complete privacy and another important factor is that they have not given any consent to such actions. The person committing voyeurism is generally called ‘voyeur’ or ‘peeping tom’.
Types of voyeurism
Initially, the term voyeurism was limited only to physically peeping into homes, bathrooms, or other private places through windows, doors, or peepholes to gaze at the person indulged in some intimate activity. But with the advent of technology, voyeurism is now committed through the use of electronic devices and electronic voyeurism has become the practice among the voyeurs. It has become easier and more convenient for the person to capture the intimate moments of the person without being physically present there. The hidden camera can be placed in changing rooms, bathrooms, or other such places to capture the victim in nude or obscene conditions. The voyeuristic content is being used as revenge porn as these recordings or photos are leaked and are used to blackmail the victim which harasses the victim mentally as well as physically.
Development of law on voyeurism in India
Before the year 2013, Indian law did not have stringent provisions to combat the growing offenses against women like rapes, stalking, acid attacks. But the Nirbhaya gang rape in December 2012 brought up the inadequacy and incompetency of Indian law to curb such violent incidents in India and punish the offenders and the government faced a lot of agitation and backlash after this unfortunate incident because the safety of women in India was at stake. Thus, some amendments were needed in Indian law regarding sexual offenses so that it is in consonance with the present-day circumstances. For this purpose a committee was set up under the chairmanship of former Chief Justice of India, J S Verma, which submitted its report on January 23, 2013, and the Criminal law (Amendment) Act, 2013 was passed based on these recommendations that introduced voyeurism as an offense in India under Section 354C of Indian Penal Code,1860 along with other amendments in the act. The concept of voyeurism is based on the doctrine of reasonable expectation of privacy.
The doctrine of reasonable expectation of privacy
Reasonable expectation of privacy refers to the circumstances in which a person has the right to privacy. In other words, the right to be left alone. Thus, if a person expects privacy but it is intruded unlawfully then the intruder can be held liable.
This doctrine was laid down in the case of Amerian Court in Katz v. United States (1967). The Court framed a two-prong test to ascertain whether this act can be considered private or not. The first test is that whether the person has an actual (subjective) expectation of privacy in that space. Secondly, whether the person’s expectation of privacy is (objectively) reasonable or not? If the answer to both the questions is affirmative then the person is considered to be in a private space and the privacy of such person could not be invaded.
In the case of R v. Jarvis (2019), this doctrine was applied in the case of voyeurism. In this case, the school teacher was charged with voyeurism as he was found guilty of recording photographs of the female students’ breasts and upper bodies while they were indulged in ordinary school-related activities, through the use of a camera pen. The question that arose, in this case, was whether the circumstances were such that the victims expected privacy or not. The Court in this case laid down circumstances that need to be adhered to while determining the question of reasonable expectation of privacy or not that are as follows:-
- The location of the person when she is being recorded or observed.
- Whether the alleged conduct amounted to observation or recording.
- The consent of the victim for recording.
- How was the recording done?
- Content of the recording.
- Any rules, regulations, or policies that governed the observation or recording.
- Relationship between the person being recorded and the person who is recording.
- The purpose behind such recording or observing.
- Personal characteristics of the person who is being observed or recorded.
All these factors are not necessary to be present for considering the expectation of privacy. Moreover, in areas like washrooms, etc, the factors need not be applied as it is ordinarily understood that a person expects privacy in such places. In this case, the teacher was held liable as privacy does not depend on confined walls but consideration of all circumstances and consent of the person being recorded.
In the landmark case of K. Puttuswamy v. UOI (2017), Justice D. Y. Chandarchud has recognized this doctrine. He quoted that “While the legitimate expectation of privacy may vary from the intimate zone to the private zone and from the private to the public arenas, it is important to underscore that privacy is not lost or surrendered merely because the individual is in a public place. Privacy attaches to the person since it is an essential facet of the dignity of the human being.” Thus, the privacy of the person does not depend on the fact that whether it is a public or private area but on the fact that whether the person believes to be in the private space where there is no reasonable apprehension of being seen or not.
Even in the recent pegasus case, the Honorable Supreme Court remarked that besides the fact that the people live in the “information revolution” and their lives are portrayed digitally, still they have a reasonable expectation of privacy.
Provisions involved in the cases of voyeurism under Indian Law
Voyeurism is explicitly mentioned as an offense under Section 354 C of the Indian Penal Code, 1860. According to this Section, voyeurism is committed by a man if he watches or captures the photographs of a woman when she is engaged in a private act and she believes it to be under those circumstances where she can reasonably presume the fact that no one is watching her. The offender can either be the perpetrator himself or any other person who commits the act on the behalf of the perpetrator or the one who is spreading such pictures. In India, keeping the background and social situations in mind, the offense has not been made gender-neutral and can only be committed by a man against a woman. This Section is not against the principle of equality in the country as it comes under the umbrella of Article 15(3) of the Constitution of India and is a special provision for women.
For this Section, the word ‘private act’ has been explained under Explanation 1 of the Section which states that any act that is committed in the areas which are usually considered private or those circumstances in which the victim’s genitals, posterior, or breasts are exposed or covered only in underwear; or the victim is using the washroom or is engaged in a sexual act. Basically, all the acts that the person under normal circumstances will not engage in public.
Explanation 2 clarifies the situation in which though the victim agreed to the capture of the images or any act but she did not consent in the distribution or dissemination of her images to any other person and if such images are disseminated, then this act would be considered an offense under this section.
If anyone is found guilty and is thus convicted under this Section then:-
- He is punishable with imprisonment of either description of a minimum of one year which can extend up to three years and also liable for a fine if he is convicted for the first time.
- But in case of second or subsequent conviction, the person is liable for the imprisonment of either description which can range from three years to seven years, and also for fine.
Electronic voyeurism has been introduced in India under the Information Technology Act, 2000 by the virtue of the IT Amendment Act, 2008 which came into force on 27 October 2009. The amendment is modeled based on Section 1801 of ‘is Video Voyeurism Prevention Act of 2004’, a federal law of the USA, and it strengthened the law against voyeurism in India. The amendment was made because of the advancement in technology and how the use of smartphones and an internet connection can pose a grave threat to the modesty and integrity of the women because the women can be recorded through such covert means (hidden cameras etc.) and she does not realize the fact. The offender even need not be in close proximity to the victim while committing the crime and thus sometimes the offenders easily escape the liability. The circulation of such obscene images worldwide with the help of just a click can also prove to be fatal and such incidents torment women. Moreover as stated in the case of KS Puttaswamy v. Union of India (2017), the right to privacy is one of the fundamental rights as it is enshrined under Article 21 ( right to life) so to protect invasion of privacy of any person through technological means, Section 66-E was incorporated in the IT Act, 2000 which encompasses all the acts like transmitting, recording, capturing, recording of obscenity and capturing a sexually explicit act and criminalizes them.
Section 66-E of IT Act, 2000
According to this provision if any person voluntarily i.e. intentionally or knowingly captures, publishes, or transmits the image of private areas of any person and person did not consent to any of the acts. This Act intrudes on the privacy of the victim and the offender is liable for imprisonment which can extend to three years or a fine up to Rs 2 lakh or with both.
In the case of State v. Shailesh (2019), Justice Susheel Bala Dagar held that voyeurism is a ridiculous type of enjoyment for men whereas it causes mental trauma to women. Such acts infringe the Right to privacy of women and she feels unsafe in the places which are generally meant to be safe for women. In this case, the Supreme Court reiterated the judgment of R. Rajgopal v. the State of Tamil Nadu (1995) and stated that the Right to Privacy also employs the ‘right of being left alone’
In the case of Rahul v. State (2020), the appeal was filed by the accused who was convicted by the trial court under Sections 376(2)(n), 354C, 506 of Indian Penal Code,1860 in the High Court. But the High Court upheld the decision of the trial court and the accused was convicted for the offense of rape and video graphing the same while clicking nude images of the victim.
In the case of State v. Unknown, 2017, it was held that to prove the case under Section 354, IPC the video taken by the accused should contain obscene footage.
In the case of Kalandi Charan Lenka v State of Orissa (2017) the accused was charged for the offenses under Sections 354-A / 354-D/ 465/ 469/ 506/ 507/ 509 of the I.P.C. read with Section 66-C/ 66-D/ 67/ 67-A of the Information Technology Act because he threatened the girl, made a fake profile in her name to sexually manipulate her and even published her obscene pictures because she rejected his marriage proposal. The accused was found prima facie guilty in all the cases and thus was convicted.
In the recent case, a male nurse of Sanjay Gandhi Institute of Trauma and Orthopaedics was booked under Section 354C, IPC because he was found recording the videos of fellow nurses while changing clothes in the changing room before going for an operation. The matter is still in consideration.
Issues related to the enforcement of law
Despite the amendments and introduction of laws to criminalize voyeurism, women in India are still subjected to such atrocities and suffer. Some of the reasons behind the lack of effectiveness of the law of voyeurism are:-
- In some cases, the victim herself is not aware of the fact that her pictures are leaked or disseminated so no cases are filed against the offender.
- The victims are often blackmailed regarding the circulation of such images on the internet which forces them to shut their mouths and suffer torture.
- Victims sometimes do not file cases as they are concerned about their image and reputation in society.
- Some victims of voyeurism are not even aware of the law present to deal with such instances.
And as our present law only probes and takes action against the offender when a complaint is filed, most of the cases are not reported so these offenders roam free to prey on another victim.
How to combat voyeurism
Loopholes in law should be justified
The law of voyeurism is still under development and there are major lacunas in it. Firstly, the definition does not include the morphed or photoshopped images or videos of the victim that are curated by the offender by transposing the face of the victim from the non-intimate photo to any obscene image or video. This will impact the victim gravely as any other voyeuristic content but does not fall under the purview of voyeurism. Secondly, the provision is not gender-neutral and does not recognize the fact that males can be victims of voyeurism too. Thus, these two loopholes need to be mended by the legislature so that offenders do not escape liability and cases of voyeurism can be curbed
The imperative step to curb cases of voyeurism is to create awareness among the people. All public, in general, should be apprised regarding laws on voyeurism so that not only the victim knows how to claim her right but also the potential perpetrator knows about the consequences that could be the result of such profane acts.
Periodic scrutiny by the agencies
The government can set up the agencies that will conduct regular inspections to search for any such hidden cameras or other devices used for the purpose of voyeurism.
Proper regulation of the content being uploaded
Cyber cells can be established that can locate such sites that publish voyeuristic content and action can be taken to remove such videos from cyberspace so that voyeurism is not promoted and the image of the victim is not tarnished.
Role of intermediaries
The voyeuristic content is uploaded online and such websites are usually hosted by intermediaries. The intermediary as per Section 2(1)(ua)(w) of the IT Act, 2000 refers to a person who on behalf of another person receives, stores or transmits that record or provides any services in respect of it. The intermediaries should be made liable so that such voyeuristic content can be easily removed. Though Section 79 of the IT Act, 2000 safeguards any intermediary for the content hosted or made accessible by them, still any person can take action against copyright infringement under Section 81 of the IT Act, 2000. Even as per Rule 3 (d) of the IT (Intermediary Guidelines) Rules, 2011, intermediaries need to be on guard while posting content on websites to ensure that content does not violate any trademark, copyright, patent laws, etc. As held in the case of My Space Inc. v. Super Cassettes Industries Ltd. (2011), Sections 79 and 81 of the IT Act, 2000 are to be interpreted harmoniously, and any infringing content should be taken down within 36 hours of receiving a complaint from the affected person.
This law is currently vague regarding the liability of the intermediaries in case of voyeuristic content and steps to be taken by the affected person to remove such content. The intermediaries should be made liable so that the publishing of such content is regularized and the content could be easily taken down from the website.
Maintenance of anonymity
Most of the victims do not approach the police because of the humiliation that could be faced by her if such obscene images would be leaked. So some measures should be developed by the government to ensure the anonymity of the victim which will make her fearless in filing cases.
Speedy disposal of the cases
The courts should ensure speedy disposal of these cases so that the victim is not harassed for a long period and the offender should be behind bars as soon as possible.
Some offenders become obsessed with voyeurism and they find sexual pleasure by engaging in such acts. So they need to be properly counseled regarding this behavior and to help them to control their sexual urge. Psychotherapy, support groups, and medication could be put into use to curb such urges.
Fund women organization
The women organizations that work in the direction of women empowerment or help in the spread of awareness should be funded so that women are empowered about their rights and opportunities.
Voyeurism is emerging as a sex crime in India and the use of technology in the commission of such offenses has exacerbated the situation. The cyber-world is expanding day by day and so are the chances of its misuse because within a glimpse of seconds the images could reach millions of people, ruining the reputation of the victim. Voyeurism leaves unforgettable traumas for the victims as well as their families. As technology has advanced by miles, the laws in India should also be concrete enough to regulate such crimes against women. The government should take immediate actions to combat the issue of voyeurism so that no more lives are tormented by these sex-driven maniacs.
- He was a voyeur in nurse’s clothing
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