EFFECTIVENESS AND IMPLEMENTATION OF STALKING LAWS

 ANSHUMAN SRIVASTAVA

ABSTRACT

Time and again we have witnessed various instances of harassment and stalking ruining lives of individuals. Stalking ranges from strangers skulking in the shadows to monitoring your social media accounts or hacking into your phone. Stalking can be defined as the crime of illegally following or watching someone during a particular period of time. It was only after the Delhi Gang Rape case in 2012 that certain provisions were introduced for punitive punishment in cases with reference to stalking. 

It has been proved by the researchers that being stalked can have psychological trauma. An all-inclusive legal framework is required to safeguard the primary victims of stalking. Initially, the article highlights the concept of stalking, provisions mentioned in the Information Technology Act, 2000 and Indian Penal Code as well as their effectiveness. Furthermore, the article focuses upon the judicial pronouncements and some recommendations to tackle the menace of Stalking. 

KEY WORDS:  Stalking, Cyberstalking, Indian Penal Code,  Information and Technology Act,  Stalking Laws

INTRODUCTION

Quiet often stalking is an act which is harmless and innocent, but for the victim it is an alarming situation. Ultimately it is the victim who has to go through the mental suffering, change the place of residence, look for any other job, and sometimes even hide the identity to somehow get rid of the stalker. In today’s world, stalking has become very common and that is the reason why people wonder if there are any laws for something which is so common. The reason behind claiming such an act as common is that every minute this is taking place in every corner. The number of cases related to stalking are rising on a daily basis, and this makes it even more dangerous. As per the National Crime Records Bureau report in the year 2018, 9438 cases of stalking were reported meaning that on an average one case was filed every 55 minutes in the country, this is almost double of what was reported in 2014. There has been a constant rise in the number of stalking cases reported from 6,266 in 2015 to 7,190 in 2016 and 8,145 in 2017. The crime rate has gone up from 0.8 in the year 2014 to 1.5 in 2018. Despite more cases of stalking and sexual harassment being reported, there are chances that they are still being underreported. Also, most of the accused keep harassing the victim even more so that the victim withdraws the complaint filed against the accused. 

MEANING AND DEFINITION OF STALKING

Under Section 354D of the IPC 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.” By the definition it’s clear that ONLY WOMEN can be the victim and ONLY MEN can be the stalker. 

STALKING LAWS IN INDIA

Before 2012, India did not have any provision for punitive punishment in stalking cases. Stalking was covered under the category of harassment such as voyeurism, sexual harassment against women and it was covered under Section 354 and Section 509 for using such words or gestures which are insulting a woman’s modesty.  It was only after the brutal rape and murder case of December 16, 2012 that stalking was made a “bailable offence” under the Indian Penal Code. Under the Criminal Law (Amendment) Act, 2013, stalking was made a punishable offence under Section 354D of the IPC, where first time offenders were to be punished with imprisonment of up to three years. 

As of today; the act of stalking is a bailable and cognizable offense with a sentence of up to three years; and fine for the first conviction; and five years and fine for the second conviction However, this law is believed to have a serious loophole– for the first time offenders stalking is “bailable”, implying that there is no need to produce the accused before the court for seeking bail and he can walk to freedom from police station itself. 

CYBER STALKING AND INFORMATION AND TECHNOLOGY ACT, 2000

The word Cyber means connected to the internet and stalking involves looking for someone’s personal records with the help of some social network or other websites to learn about that specific person, hence, stalking which takes place with the aid of the internet is called Cyber Stalking.  

The Information Technology Act, 2000 was the next step to check offences in cyberspace. IT Act’s Chapter IX talks about offences including identity theft, impersonation, sending obscene material etc. Although no direct concept is in the act to deal with cyber stalking, the IT Act’s endeavor was to address the consequences of online stalking. Let’s say that several identities are made to harass a person online, so now the IT Act defines this provision and explains it as an offense of impersonation under Section 66D. Here a person assumes a fake identity with the intention of deceiving or misleading another person using a computer or communication device. 

In another case when any person is stalking an individual online and sexually harasses that person by sending pictures which are obscene in nature, then, it becomes an offence under Section 67 of the IT Act, for transmitting material which is obscene in nature and in a scenario where the content is sexually explicit material then it is an offence under Section 67A for transmitting material which has sexually explicit acts.  There are three forms of Cyber stalking: 

  1. The first one is e-mail harassment.
  2. Then comes internet stalking which takes place when the stalker uses the internet to slander and endanger the victim. In such situations cyber stalking takes on a public dimension rather than a private one.
  3. The third mode of cyber stalking is computer stalking in which the working of the Internet and Windows system is exploited to assume control of someone else’s system. 

JUDICIAL PRONOUNCEMENTS

Eve teasing is one of the major offences associated with stalking. The Supreme Court in 2012 laid down 8 guidelines to curtail the instances of eve teasing in its judgment of Inspector General of Police v. S. Samuthiram (2013). The Apex Court addressed the importance of taking up complaints by the bystanders and the victims, for eve teasing in public places such as public transport, movie halls, etc. 

Another such case if of Kalandi Charan Lenka v. State of Odisha (2017).In this the victim was being continuously stalked and a fake account of her was later created and obscene messages were sent to the friends by the culprit. A morphed naked picture was also posted on the walls of the hostel where the victim stayed. The Odisha High Court held that the said act of the accused falls under the offence of cyber defamation and the accused is liable for his offences of defamation through the means of fake obscene images and texts under Section 67 of the Information and Technology Act, 2000. 

In the year 2016, the Bombay High Court in Shri Deu Baju Bodake v The State of Maharashtra took note of a case of suicide by a woman who had claimed that the reason behind her suicide was the constant stalking and harassment carried out by the accused. The accused used to stalk her during work and insist upon them getting married. It was held by the High Court that the charges under Section 354D ought to have been recorded in addition to the charge for abetment to suicide of the victim. 

WHERE CAN WOMEN FILE COMPLAINT

Women who are being stalked can file their complaint on the official website of National Commission for Women (NCW) (http://ncw.nic.in/ ) after that NCW will take up the matter with the police. Any woman, residing anywhere in the country, can file this complaint. The Commission asks the particular police department to then expedite the investigation. When cases are serious, the commission forms an inquiry committee, which makes spot inquiries, questions the witnesses, collects the available evidence, etc. The Commission also has powers by which it can summon the accused, the witnesses and police records, to facilitate the inquiry process.

EFFECTIVENESS OF STALKING LAWS IN INDIA

There is a major drawback when it comes to enforcing stalking laws in India. One of the reasons for letting these cases go is a lack of understanding of the law by the police officials. Lack of understanding can also be blamed on TV shows and films which try to normalize and romanticize stalking. All these play a vital role as they affect the mindset and psyche of a person and makes them think that it is a normal act of showing love. Our society is filled with this toxic culture and inevitably this affects our perception of the offence itself.  

 A sad reality is that very often victims are asked to let such cases go instead of registering a complaint. The crime has been normalized and trivialized by such statements and that is the reason why such crimes are not taken seriously. Instead of taking action against the stalker the victims are asked to ignore it. 

RECOMMENDATIONS

  • The Law only considers “women” to be the victim of stalking and ignores the fact that men too can be the victim. How effective a law can be when half of the population is not protected? Hence, the wording of the law should be changed from particularly putting women as victim and a man as the culprit to ‘any person’ as stated in stalking laws of other nations like the Netherlands thus, making it a gender-neutral law. 
  • The first offence of stalking is “bailable”, implying the accused need not be produced before court for seeking bail and can walk to freedom from the police station itself. 
  • The trial must be done in a time bound manner and the trial must be done quickly in order to ensure that no further harm is inflicted upon the Victim. Also, it may lead to an increased conviction rate if the accused is left free to roam. 
  • The Police officials must be trained to understand the severity of the offence of stalking, this lack of understanding of the law should be done away with as it acts as one of the precursors to much more heinous crime.
  • It should be made possible for the victim to file a complaint through an online or telephonic medium. The government should launch a national helpline number for reporting such crimes. All this should also be backed by a quick response team consisting of police officials in each city so that immediate help is provided in cases of emergency so as to help prevent such crimes.  

CONCLUSION AND SUGGESTIONS

Stalking laws are relatively new and young laws which are still not known to the most people. People should be taught about it so that these laws might help them deal with such situations. If we want to end such crimes and create a society with rule of law then we should acknowledge the seriousness of such crimes. An individual who is stalked is not only mentally harassed, but also physically teased. Although provisions for stalking are present in the IPC, it does not clarify anything regarding cyberstalking. Some state governments have taken some steps; but the issue of stalking has not been given the attention it requires and it is a long road to go; as this provision in its present form may be grossly misused. The provision for bail has been provided to the people as a benefit of doubt but instead it is used by offenders as an opportunity to commit more such crimes. Such crimes against women must cease and its seriousness has to be acknowledged by the society if we want to make a society with rule of law. Thus, the author concludes that there is an impending need for changes to be made to the legal provision in order to make it more effective and help it keep it up with current times.

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