The Nagpur bench of the Bombay High Court has stirred a discourse on the interpretation of stalking, an offense under Section 354D of the IPC. Justice GA Sanap gave his opinion Amit Chavan v. State of Maharashtra that stalking requires repetition, which excludes the possibility of prosecuting the crime in the event of “individual persecution of the victim”.
The provision, aimed at preventing the crime of unsolicited sexual advances, imposes strict sanctions, with perpetrators facing a prison sentence of up to three years and a fine.
The provision under Section 354D of the Indian Penal Code reads:
- Every man who –
- follows a woman and repeatedly contacts or attempts to contact her to encourage personal interaction, even though that woman shows clear signs of disinterest; or
- Monitors a woman’s use of the Internet, email, or any other form of electronic communication commits the crime of stalking
The provision, aimed at preventing the crime of unsolicited sexual advances, imposes strict sanctions, with perpetrators facing a prison sentence of up to three years and a fine. In the event of a later conviction, the sentence can be extended to up to 5 years. Given the definition and sanctions, the law appears to be strict on paper, but it remains virtually invalid due to the disturbing essential part of the provision that only repeated stalking is considered a crime. That also explains the inscrutability low conviction rate in stalking cases in India.
Source: FII
The definition of stalking undermines the intent of the law. The provision appears to ignore the fact that even a single incident of stalking can cause deep fear and concern to a person in a public space. The provision does not take into account the psychological and emotional consequences of such predatory behavior and does not take into account the behavior of the perpetrator.
Criminalization of stalking: global and historical context
For a long time, stalking was not officially recognized as a crime. It wasn’t until the late 20th century that the seriousness of the crime came to global attention, after Rebecca Schaeffer was shot and killed by an obsessed fan in California in 1989. The state of California was the first to draft it Anti-stalking legislation in 1990.
Similarly, the British Parliament has enacted this Protection from Harassment Act 1997. The early attempt at criminalization suffered from a lack of clear and universal definition that continues to this day. The amendment to the Protection from Harassment Act in 2012, see Protection of Freedom Act 2012 has somewhat removed the hurdles in defining stalking. This included the insertion of two new provisions, Section 2A (the offense of stalking) and Section 4A (Stalking causing fear of violence or serious alarm or distress).
The ongoing legal vacuum has resulted in countless cases of stalking resulting in irreparable loss of life and dignity.
In India, the recognition of stalking as a crime came painfully late. The ongoing legal vacuum has resulted in countless cases of stalking resulting in irreparable loss of life and dignity. One of the most shocking cases was that of Priyadarshani Mattoo in 1996, a law student of Campus Law College who was brutally murdered and raped in her apartment by her stalker.
Source: FII
Like most laws related to the safety and well-being of women in India, stalking was criminalized following the mass mobilization that followed Nirbhaya incident. The mass movement woke the government from its slumber and led to the founding of the Justice JS Verma Committee on December 23, 2012. The committee considered stalking to be a serious problem that causes emotional and psychological trauma. The report further highlighted that stalking is a violation of the fundamental right to protection from sexual harassment.
The proposal to criminalize stalking was not only intended to punish but also to prevent the commission of violations. The committee had taken the view that crimes such as stalking would be considered trivial offenses, but this is the case Potential to disadvantage children their right to education and their freedom of expression and movement. The committee had suggested that “preventive measures are needed for the initial minor deviations to prevent their escalation into serious sexual deviations”.
The committee had suggested that “preventive measures are needed for the initial minor deviations to prevent their escalation into serious sexual deviations”.
However, despite the Committee’s observations, the recommendation to adopt the provision was not sufficient to provide a comprehensive definition, which was directly incorporated into the Nirbhaya Act, also known as the Nirbhaya Act the Criminal Law (Amendment) Act, 2013.
Defining stalking remains a challenge for any society, especially in times of rapid advances in information technology. As public and cyberspace continue to expand, precautionary legal provisions to combat stalking must act as an active deterrent. Harassment is the genus and stalking is the species. Jennifer Gatewood Owens from the Department of Criminal Justice and Criminology at the University of Missouri-Kansa City believes that the definition of stalking should include three elements:
a pattern of behavior directed at a specific person, behavior intended to place that person in fear for his or her safety, and behavior intended to place that person in fear for his or her safety.
Source: FII
The legal framework must take into account the behavior of the perpetrator, regardless of whether that behavior or pattern of behavior creates a feeling of fear, intimidation or alarm in the individual, without limiting the scope to fear of a threat that could result in serious bodily harm or death . The approach is intended to be more holistic and take into account the psychological and emotional trauma caused by the perpetrator in the course of his behavior.
Judicial interpretation and missed legislative opportunity
The court plays a crucial role in shaping the justice system, particularly in combating gender-based crimes. A progressive interpretation of Section 354D could have increased its deterrent effect by interpreting the provision in light of the act of the perpetrator in the course of conduct which ultimately resulted in psychological or physical violence on the part of the perpetrator. There is no denying that the provision in defining the offense of “stalking” is fundamentally inadequate.
The Supreme Court’s interpretation of the provision reveals the real discrepancy between the law and the reality of women’s lives. Women’s constant anxiety when navigating public spaces is often a reality, and the mere reading of the provision, which requires repetition to trigger the provision, compromises its intent. Because stalking is an escalating crime, the inherent goal of criminalizing stalking is to nip the crime in the bud.
Additionally, it is important to understand that even a single act of stalking can profoundly undermine a woman’s sense of security and autonomy.
Additionally, it is important to understand that even a single act of stalking can profoundly undermine a woman’s sense of security and autonomy. Legal action against such predatory behavior must be swift and decisive. Instead of counting the number of times a woman has been stalked or followed, behavior should be the main component of the law that triggers the provision. The law serves as a protection against crime and injustice, not as a barrier.
Source: FII
Furthermore, the stalking law in its current form is a gender-specific provision and overlooks the need for inclusivity within its scope. A gender-neutral approach is essential to ensure that the law considers and takes into account the realities of all people’s lives, regardless of their gender identity. The Transgender Persons (Protection of Rights) Act, 2019 deals with specific offenses such as violence and abuse, the approach is narrow and does not include stalking as an offence.
In India, a woman who is a victim of stalking can approach a civil court and obtain an injunction that allows her to detain the stalker without having to deal with the complexities of the criminal justice system. While this pathway is critical, it also highlights a missed opportunity within the criminal justice system.
For example, the Domestic Violence Act 2005 has a provision for a protection order Section 18. Such protection orders are wide-ranging in scope and could be helpful in comprehensively combating stalking. Furthermore, its scope could extend to the protection of her family members and the transmission of the order by the judge to the nearest police station could have ensured effective enforcement of the precautionary provision.
A similar model could have been seamlessly integrated into the procedural rules in the recent reform of the criminal justice system. But adapting the regulations turned out to be a missed opportunity to close the systemic gaps.
The stalking law in India still has limitations. The interpretation of the provision and the substance of the provision, which has repeated cases of stalking as its main component, betrays the deterrent effect of the criminalization of the provision.
The stalking law in India still has limitations. The interpretation of the provision and the substance of the provision, which has repeated cases of stalking as its main component, betrays the deterrent effect of the criminalization of the provision. As global and national legal frameworks continue to evolve, there is an urgent need to consider and evolve legal research to adapt to lived experience.
Source: FII
Indian society is scarred by heartbreaking cases of sexual violence that continue to haunt our collective conscience. These tragedies – along with countless unreported atrocities – require systemic reforms that permeate the structure while exposing women and marginalized groups to unchecked violence of all kinds.
