This article has been Written by ELAVARASI. P from THE TAMIL NADU Dr. AMBEDKAR LAW UNIVERSITY

INTRODUCTION :

India is one of the developing countries which has many advantages as well as disadvantages. As the society evolves the crimes also evolves. The first and foremost necessity for a country is to maintain safety of its people. Women are naturally considered to be vulnerable. The bitter truth is that the protection of women in India is at stake.

There are numerous henious crimes that are committed against the women. Destroying their dignity is equal to destroying them alive. Almost every women in our society faces sexual harassment whether in work place or at home, irrespective of age difference. To control this declining situation, the government of India has passed and amended many laws to protect and safeguard women.

As time passes new offences arise like acid attack, voyeurism, stalking, cyber crimes, etc., In this article let’s briefly analyze the intrusive nature of Voyeurism and Stalking and their legal frameworks.

MEANING :

What is voyeurism?

The Word Voyeurism mentioned in Indian Penal Code is derived from a French word “Voir” Which means “ One who looks” or “ to see”. Here it is referred to the male peeking on the woman without the knowledge of the woman.

It is a secret act done by a male which invades the privacy of the female. Voyeurism is also defined in Cambridge dictionary. It says that it is a act of watching a person in a sexual activity or watching their private life in order to gain pleasure from it.

Whether someone can watch the body of the women shall be decided only by that particular woman, without her consent or without the knowledge of the women no one shall secretly invade in the private space of that woman. voyeurism is an act where a man looks into the private space of a woman without the knowledge of the women. It causes severe mental health problems than physical.

Voyeurism includes any kind of activity where a women doesn’t want others to watch such as changing the clothes, Having a sexual intercourse with a person, taking nude pictures of her, installing a camera in her room without the knowledge of the women etc., In this offence the physical contact is not needed.

This kind of misbehaviour where the rights of an individual is violated must be punished. Hence the government of India has enacted this kind of activity as a offence under the section 354C of Indian Penal Code.

What is stalking?

Stalking is an act where a person repeatedly harass another person or follows that person which induces fear in another person. The person who acts in such a way is called a stalker. They would threaten the security of the person and cause fear of being injured or death in them.

They give threats either implied or expressed. This would lead to the mental suffering of the person who is being stalked and can cause psychological harm to them. It also create a mental distress where the normal life of the person is disturbed.

If a man follows a woman and try to contact with her repeatedly even after being refused by the women and causing inconvenience to her shall be stated as stalking. Under the section 354 D of Indian Penal Code this act is said to be an offence and the punishment shall be imposed on those stalkers.

ESSENTIALS FEATURES:

VOYEURISM :

The essential features of Voyeurism includes;

Watches or captures the image of a woman
Engaging in a private act
Without the knowledge of the woman
Disseminate the images of the women
At many time this act is done to get sexual pleasure.

STALKING :

Section 354D of IPC deals with Stalking. It states the essential elements for stalking they are;

Perpetrators gender : The provision clearly stated that a man would be a stalker while the women is the victim. It is gender specific. This offence shall be committed by a man against the woman.
Unwanted contact : the man must have tried all the means to keep in contact and communicate with the women even after all the rejections she made. It shall be either in physical more or through internet.
Repetition : It is not a one time occurrence. The act of stalking must be repeated for a certain degree. It would cause fear and anxiousness in the women. It must not be accidental but well-known act.
Clear indication of disinterest : On the part of the women, she must clearly show the disinterest towards the stalker. The consent of the women is essential to accuse the person who is contacting her despite her clear indication of disinterest.

LEGAL FRAMEWORK :

VOYEURISM :

History:

Earlier, India has vulnerable laws to protect the safety of women. There are no stringent provisions that helps to punish the offences like rape, stalking, voyeurism etc., But in 2012, the Nirbhaya gang rape case clearly noted the insufficient and inconsistent laws in India to protect women’s safety. Therefore Indian government realized the need for certain amendments on the sexual offences to ensure the safety of women in the present society. Due to this, a committee headed by J S Verma, the former chief justice of India was set up.

They gave their report on January 23, 2013. By this report’s recommendation the Criminal Law ( Amendment) Act, 2013 was passed. This introduced Voyeurism as an offence in India under section 354 C of Indian Penal Code, 1860. Moreover this concept of voyeurism is based on the doctrine of reasonable expectation of privacy.

Definition:

Section 354 C of Indian Penal Code defines voyeurism. It states that any man who watches or captures the image of a woman engaging 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 shall be constituted as the offence of Voyeurism.

Explanation:

The Indian penal code itself gave two explanation for this section, they are;

According to this section the term “private act” includes act of watching carried out in a place which, in the circumstances, would reasonably be accepted to provide a privacy and where the victims genitals, posterior or breasts are exposed it or covered only in underwear or the victim was using a lavatory or the victim is doing a sexual act that is not of a kind ordinary done in public.
Where the victim consents to capture of the images or any act but not their dissemination to 3rd person and where such image or act is disseminated, such dissemination shall be considered an offence under this section.

Punishment:

Section 354 C of IPC also states the punishment for voyeurism. It states that if a person is guilty of the offence of voyeurism for the first time then he shall be imprisoned for a term not less than one year and shall extends to 3 years and he is also liable to pay fine. But if the accused person is guilty of Committing the offence for second or subsequent times then he shall be imprisoned for a term which is not less than 3 years and shall extend to 7 years and shall also be liable to pay fine.

First time conviction : Cognizable and bailable offence and it’s triable by any magistrate.
Second or Subsequent conviction : Cognizable and Non – bailable offence and it’s triable by any magistrate.

IT Act :

Under the Information Technology Act 2000, the punishment for the violation of privacy is stated under section 67. It states that whoever intentionally or knowingly captures, publishers or transmit the image of a private area of any person without his or her consent, under the circumstances violating the privacy of that person, shall be punished with the imprisonment that may extend to 3 years or with fine not exceeding 2 lakh rupees or both.

STALKING :

Definition:

Section 354 D of Indian Penal Code defines stalking. It says that any man –

Who follows a woman
Contacts or attempt to contact such women
To force personal interaction repeatedly
Despite a clear indication of disinterest
Monitors the woman using Internet, email or any other form of electronic communication shall commit the offence of stalking.

Punishment:

Section 354D of Indian Penal Code also states the punishment for the offence of stalking. It states that whenever a person is convicted for the first time, his punishment shall be imprisoned for a term which shall extents to 3 years and also will be liable to pay the fine. Bur if the accused person is guilty of second or subsequent conviction then he shall be imprisoned for a term which may extend to 5 years and shall also be liable to fine.

First time conviction : Cognizable and bailable offence and it’s triable by any magistrate.
Second or Subsequent conviction : Cognizable and Non – bailable offence and it’s triable by any magistrate.

Exceptions:

Section 354 D of Indian Penal Code also mentioned some of the exceptions to this offence of stalking, they are;

If a person does a stalking for the purpose of preventing or detecting a crime and if he is entrusted by the state to prevent or detect the crime.
If the stalking was pursued under any law or to adhere the conditions imposed by any person under any law.
If the conduct was reasonable and justifiable then it shall not amounts to the offense of stalking.

IT Act :

The Information technology act also addresses the provisions for stalking on some aspects. They are;

Section 66A – Punishment for sending offensive messages through communication services. This section was struck down by the Supreme Court of India in 2015 in the case of shreya shinghal v. Union of India AIR 2015.

Section 66E – Punishment for violation of privacy. The Accused person shall be punished with the imprisonment which may extend to 3 years or with a fine not exceeding 2 lakh rupees or both.

Section 67 – Publishing of information which is of obscene in nature in electronic form. The Punishment for the accused person on first conviction shall extend to imprisonment of 3 years and with a fine which may extent to 5 lakh rupees. And in the event of second or subsequent conviction the punishment shall be imprisonment which shall extent to 5 years and also with a fine that shall extent to 10 lakh rupees.

CASE LAWS :

VOYEURISM:

Shivram Sharma v State of M. P. And Anr.,

In this case the accused person shared the intimate pictures of the victim to victim’s father without the consent of the victim. The court observed that these facts made out of a prima facie are offence under the section 354C OF IPC.

R v Jarvis

Jarvis is a high school teacher who had no allegations on him legally. He recorded the female students without their consent using a pinhole camera. His coworker came to know about it and informed to authorities. The evidence were clear and he was charged under section 162(1) of Criminal Code of Cannada for committing the offence of voyeurism. The trail judge concluded that his behavior was immoral but recording the video for the sexual purpose was not proved thus he is not guilty of the offence and was acquitted. But the Supreme court of Canada stated that the recording violated the policy of the school board, and the trust between a teacher and a student. They had a reasonable expectation about privacy. Thus supreme Court held that he is guilty of the offence.

STALKING:

Santosh Kumar Singh v. State Through CBI (2010)

This is a case where a woman was stalked, raped and murdered. Priyadarshini, a 25 year old law student was the victim. The accused person continuously stalked the victim, harasses her and gave threats and lewd demands. This case triggered the involvement of section 354D of IPC. After being filed under this section the accused was granted bail and the situation escalated. The victim was targeted and killed while she was alone in her home, this leads to a legal battle. The court at first gave the accused a death sentence but the supreme Court of India commuted the punishment to life imprisonment.

Inspector General of Police v. S. Samuthiram (2012)

This case laid down the importance of addressing the issue of stalking and harassing in public spaces and transit systems or any other location by the victims and onlookers.

Kalandi Charan Lenka v. State of Orissa (2017)

In this case a student informed a indecent incident and harasment she experienced at school. Her father also received some pornographic messages from an unknown number. This leads to the damage of family’s reputation. The High court ruled that the accused person was a prima facie liable for sexual harassment and it is a non bailable offence. This case also addressed the importance of addressing such incidents so as to protect the victim.

COMMON IMPACTS :

The common problems or impacts that a women undergo when the offence of stalking or voyeurism takes place are;

Serious mental issues
Fear of crowd, meeting strangers
Insomnia
Death / suicides
Lose of dignity, reputation in society
Sexual harassment
Physical injuries, etc.,

OTHER COUNTRIES VIEWS :

South Korea

In South Korea voyeurism and stalking are one of the most prevalent concerns in the society. There are many hidden cameras known as “molka” in public areas like restroom, dressing room and even in a residential area. Stalking both in a physical mode and online mode are offence that are punishable. Many measures are taken to prevent these societal issues but still they are more prevalent in South Korea.

Saudi Arabia

In Saudi Arabia the legal system is well known for imposing severe punishments. it also gives severe punishment for offenses that are related to violation of privacy.

Japan

Japan is also a country which gives a severe punishment for the offence of stalking and voyeurism. The punishment thus given depends on the severity of the offence.

SUGGESTIONS :

Some of the suggestions that can be made to make India more safer against the offence of voyeurism and stalking are;

Providing legal aids.
Ensuring legal knowledge about the offences to general people of India.
To ensure speedy justice.
Giving awareness programs and suicidal relief programs.
Digital and data protection.
Ensure Societal engagement

CONCLUSION :

The main duty of the government is to ensure the safety of the people. We must know the existence of the offence to prevent it. Addressing the offence committed against the person is a duty not only to the victim but also to those who have witnessed it. To create a better environment we should strive to address the offences and prevent it from happening. Through education and community vigilance, we can create a better environment for our present and future generation.