29 May 2018 11:17AM
Women safety and crimes against women have always been a serious issue in India and is always a point to worry about for the Indian citizens and foreigners who visit the country. Stalking is one such crime against women but unfortunately, it is not seen as a serious offence by the enforcement agencies. Many often underestimate it the mental trauma upon the victim caused due to stalking. Moreover, offences like rape, kidnapping, acid attacks and murders are usually the consequence of stalking. Then there is also the fact that because of the mental intimidation caused due to talking, it is very difficult for the victim to gather courage and report the offender to the police.
The Chandigarh stalking case gained popularity in 2017 because the involved parties were from influential family backgrounds and brought to light the lax in action by the police, possibly because of the family background of the perpetrators. In this case, the victim had been followed in the car by the perpetrator and an FIR was lodged against them. The perpetrators were charged with drunk driving, stalking and wrongful restraint and then immediately released on bail because these offences are bailable offences. However, because the perpetrators had gone on to open the door of the victim’s vehicle, the incident would have attracted more stringent provisions of criminal intimidation and insulting the modesty of women but the police never charged the perpetrators of these crimes.
Data from the National Crime Records Bureau (NCRB) reveals that the number of reported cases of stalking has been on the rise over the years. In 2014, the number of cases reported for stalking was at 4699. The number of reported cases of stalking escalated to 6266 in the year 2015 and 7132 in the year 2016. However, though the number of stalking case reported has been on a rise, the rate of convictions in proportion to the number of reported cases has been alarmingly low. For instance, of the total number of instances of stalking reported in 2014, there were only 262 convictions. In 2015, of the 6266 cases reported, only 437 of the cases led to actual convictions. And in the year 2016, out of the total number of reported cases, only 481 led to the accused being convicted.
Definition of Stalking
Prior to the year 2013, there was no specific provision for stalking within the Indian criminal legal framework. But after the 2012 Delhi rape case, the Indian Penal Code was amended and section 354D was added to it which specifically deals with stalking. Following the rape incident of 2012, the Justice Verma Committee was established to recommend amendments to the Indian criminal laws so as to make them more inclusive of sexual crimes. Thereafter, the Indian Penal Code was inserted with new provisions for crimes related to stalking and sexual voyeurism were included into the Code. Previously standing legal provisions were also amended to better protect individual privacy of people who had fallen victim to crimes of sexual nature like examining the history of sexual conduct of a victim.
Section 354D of the Indian Penal Code defines stalking as an act perpetrated by a man against a women by repeatedly following a woman and making contact or attempt to make contact with her with the purpose of instilling a personal relationship, despite the woman had indicated to him that she does not wish to enter into any such relationship with the man. Stalking is also an act perpetrated by a man who monitors the internet usage, emails or any other electronic communication methods of a woman.
However, such actions may not be considered as stalking if the accused is able to prove any of the following three things:
· That the accused had been entrusted by the state to pursue the woman for the purpose of detecting or preventing crime.
· That the act was carried out in order to abide by any provision of law, or under the direction of a person who was so authorised by law.
· That given the specific circumstances of that case, such a conduct of stalking was justified and reasonable.
Section 354D (2) of the Indian Penal Code also provides for the ambit of punishment for the offence of stalking. A person who is convicted of committing the crime of stalking for the first time shall be liable to imprisonment for a period of three years at the most also a fine. For second time convicts or repeated offenders, the punishment applicable is of imprisonment of a maximum term of five years and also a fine.
Nature of offence under 354D
Stalking under Section 354D of the Indian Penal Code is a cognizable but non-compoundable offence as per section 320 of the Code of Criminal Procedure. A compoundable offence is a category of offence wherein the victim and the accused can enter into a compromise and agree to have the charges dropped. In light of this, when a person is accused of stalking under section 354D of the IPC, this charge cannot later be dropped as it is a non-compoundable offence. If two parties to the case do decide to compromise, then the only option available to them is to petition before the High Court under Section 482 of the Code of Criminal Procedure and ask for the case to be quashed on the ground that the two parties to the stalking case have reached a compromise. Section 482 of the Code of Criminal Procedure empowers the High Court to use its inherent powers and pass the necessary orders in so that justice can be carried out.
Complaints about stalking can be filed online over the website of the National Commission for Women, also called as the Mahila Aayog. The National Commission of Women helps monitor and expedite the police enquiry into the case. The Commission also helps bring the issue into the notice of various state authorities. The method to file a complaint with the National Commission for Women is as given below:
The crime of stalking is limited not only in the physical world but has also transgressed into the realm of the virtual world in the form of cyber stalking. Cyber stalking includes acts akin to that of stalking but delivered over the medium of the internet. Cyber stalking is the act of repeatedly harassing a victim in unwelcome or threatening behaviour online.
A cyber stalker usually begins operation with the collecting all possible personal information that may be available like the victim’s name, date of birth, phone number, the home and work address of the victim etc. Instances of cyber stalking and cyber harassment include when the cyber stalker posts such information web pages including dating websites or pornographic/ sex related websites while falsely posing as the victim in order to let other people contact the victim. This can lead to the victim being hoarded with unwanted phone calls or messages on their social platforms and email. Cyber stalkers also sent repeated emails asking the victim for favours or simply harassing them with mass emails or ask a third person to the same on their behalf. Cyber stalkers often ensure that the victim is aware of the fact that she is being stalked online by posting numerous, often posting aggressive or threatening messages or messages confessing their attraction to the victim on their social networks like Facebook or Twitter. Cyber stalking also includes the act of creating fake profiles on social media in order to keep track of the online presence and activities of the victim. The assailant may even send, often threatening, messages to the friends and family of the victim and harass them along with the victim.
At present, there are no exclusive provisions for cyber stalking within the Information Technology Act, 2000 however, usually section 67 and 67A of the Act are used to charge accused for cyber stalking. These two provisions relate to the transmission of obscene or sexually explicit content over electronic media. For a first time conviction under section 67, the convict can be sentenced to up to three years in prison and also a fine of a maximum amount of Rs. 5 lakh. For the second offence or repeated offence under this section, the accused may be imprisoned for up to 7 years and be fined a maximum amount of Rs. 10 lakh. The same punishment applies to conviction under section 67A with the difference that the maximum fine amount under section 67A for both first offence and repeated offence is Rs. 10 lakh.
Where the law is still lacking
While the Indian Penal Code does have an exclusive provision for stalking now, there are no direct provisions for cyber stalking in the Information Technology Act as well as the Indian Penal Code. Another major drawback of stalking laws in India is that they are not gender neutral, which means that the stalking laws are aimed at protecting only the women and leave male victims with little recourse. This is especially so in the case of cyber stalking. For example, the case of the cyber stalking of a well known entrepreneur Vijay Nair gained widespread attention. The victim in this case was male who had been cyber stalked and harassed by a female assailant. However, the victim here was left with very little legal recourse since all the cyber stalking and stalking laws in India are female-centric.
Yet another reason issue with the legal framework for stalking in India is its enforcement. While the victims of stalking may often be too afraid to come forward and report cases, more often than not, the enforcement agencies are too lax to take up such matters seriously as has been observed in the Chandigarh case discussed at the beginning of this essay. There have also been cases where the police have merely accosted the perpetrator of stalking and let her off with only a warning, despite the victim stating his intent to take up legal action.
Another criticism of stalking laws in India is the legal lacuna posed by section 354D of the Indian Penal Code. Stalking, as per this, provision is a bailable offence. This means that even if a person has been accused of stalking, he can be released on bail at the police station without even needing to be present before the court of law. This was exactly the case in the Chandigarh stalking case wherein the police released the accused on bail almost immediately. In actuality, the Justice Verma Committee that was formed as a precursor to the 2013 Amendments of the Indian Penal Code had suggested that stalking should be introduced into the Indian Penal Code as non bailable offence with jail term of one to three years. But how come this recommendation was not implemented in full? The recommendation had been looked at positively by the then in power UPA government as well as the Parliamentary Standing Committee. But the 2013 Amendment Bill had also seen a lot of opposition from the Opposition party and therefore had to be altered in order to be implement as an Amendment Act. Thereby, the Bill was altered to consider the first offence of stalking as a bailable offence and subsequent offences as non-bailable. It is important to envision stalking not as a stand alone crime but a crime that is a precursor of graver crimes are many cases of stalking have gone on to develop into cases of acid attack, rape and murder.
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