This article, “Analyzing the Effectiveness of Stalking Laws in India” is written by Yogita Goel; a student of Geeta Institute of Law and Legal Researcher Content Writer at Legal Thirst. In this article, she analysis the stalking laws in India.
Stalking is often dismissed as a harmless and innocent act; but it is a dangerous and annoying one for the victim. It is the victim who eventually has to endure Grunt, move to a different place, change jobs; and sometimes even the identity to evade from the stalker.
What is stalking?
Stalking is the obsessive behavior of one person towards another where the former constantly chases and spies on the latter. It is habitually associated with persecution and suffering by the person who fanatically pursues someone.
In other words, it is a form of harassment; which involves repeated and persistent intent to harm or fear the person being followed. It can be in various forms- physical or online.
Laws relating to Stalking in India:
The Criminal Law (Amendment) Act, 2013 amended the Indian Penal Code; introduced through the Justice Verma Committee, and inserted ‘stalking’ as an offense under section 354D (1) (1).
Under the provision, stalking is defined as; “an act where any man repeatedly follows and contacts a woman; so as to foster personal interaction despite a clear indication of interest by such woman.”
If a man follows a woman or contacts a woman to foster any interaction, this amounts to stalking. A woman may or may not know that she is being chased or stalked; and if a clear sign of indifference is shown by women and the act of stalking continues; it is a crime under the law.
Stalking can take the form of harassing telephone calls, computer communications, letter writing, etc; or it can also occur on an online platform when a man monitors a woman; through the Internet, email, or any other electronic communication; and she Stops. As of today; the act of stalking is a cognizable and bailable offense with a sentence of up to three years; and fine for the first conviction; and five years and fine for the second conviction
Online and Offline Harassment:
when cases are registered, the offense of online stalking should be dealt with in Section 354-D IPC; read with the provisions of IT Act, as in case Kalindi Charan Lenka v. Orissa High Court of Odisha State (2017).
In that case, the accused had proposed to marry the victim; and when the marriage could not be finalized; he sent obscene letters and malicious mail and even published pamphlets to defaming the victim’s character. Through creating obscene and pornographic mail and fake Facebook accounts in the name of the victim girl; the accused performed with the intention of intimidating her with the purpose of sexually abusing her. Even when the girl had changed her study location due to sexual harassment; and the accused pursued her, only to harass her both online and offline.
The Crime Branch’s Cyber Cell had investigated the matter and the High Court held that; the accused was responsible for the offense of sexual harassment under Section 354A; online stalking under 354D Indian Penal Code, 1860. Section 66-C for identity theft, Section 66-D for impersonation; and sections 67 and 67 for transmitting obscene and sexually explicit material online.
The purpose of punishment is usually condemnation with retaliation or reinstatement. According to this section, a person shall be punished with imprisonment of up to 3 years on the first offense; and shall also be liable to a fine and subsequent offense; shall be liable to imprisonment and a fine of up to 5 years. But the problem with this provision is that the first offense is a cognizable and bailable offense; and the subsequent offense is a non-bailable offense. But the latter offense is only counted after being convicted of the first offense; and the conviction rate is much lower; because the accused disturbs the victims to the withdrawal of cases; and therefore results in no conviction.
According to NCRB data; 80% of the accused under this legal section are granted bail before the charge sheet is filed. They are free to harass the victim in order to withdraw their complaints.
Loop Holes in the system
Non-conviction and the lack of seriousness towards the crime results in the loss of confidence; and faith of the victims in the justice system. The commission of a crime is very easy but its effects are long-lasting; it affects the mental and physical health of the victim. Stalking is the precursor to many serious and heinous crimes such as rape, murder, acid attack, etc. It was first realized in 2017 during Quint’s ‘Talking Stalking’ campaign. On 3 August 2018, Drs. Shashi Tharoor proposed it in the Lok Sabha as a private member’s bill; but the bill has not yet been seen in the light.
One of the reasons for the omission of prosecution in these cases is the lack of understanding of the law by police officers; which prevents the successful prosecution where the evidence may exist. This lack of understanding of the law can be blamed for the normalization and romanticization of films and TV shows; as seen from various films and series such as Ranjhanaa, the Notebook, the Graduate, You, Toilet: Ek Prem Katha. These play an important role, as they affect a person’s psyche; and they feel that this is a normal act of showing love; the victims are asked to ignore it instead of taking strict action against the accused; and the complaints are not filed.
Gender Biased Stalking Law
Under the law, only a man can stalk a woman. This means that the law is not gender-neutral and has recourse only to women. It ignores the fact that men can also fall prey to it. How effective is the law when half the population is not protected under it. The law clearly states that when ‘a man who follows a woman’; these laws are made at the behest of a mindset that needs only protection. This is gender-specific legislation that needs to be changed.
The government should create a national helpline number for reporting such crimes. It should also be supported by a quick response team of police officers in each city; to provide immediate assistance in cases of emergency so that such crimes can be prevented.
Some steps have been taken by some state governments; but the issue has not been given the required importance and it is a long road to go; as this provision in its present form may be grossly misused.