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criminal_laws:stalking

Legal Protection from Stalking

Introduction

Due to the fear of being stalked, some women don’t like to even venture out alone in public. While returning home from school, college or work, while going on a walk alone, visiting places, standing near windows, working online, sharing information or talking to people across our gadget screens there may be unwanted watching or routing for a person. This conduct is called as the ‘unwanted pursuit of another’ or obsessive behaviour towards someone. This is stalking. Women have been harassed for ages by stalking. Stalking is spirally into a very serious concern and it’s not just physical anymore there’s also stalking via phone calls, text messages, emails and on social media.

General Meaning

Stalking is an obsessive behavior of an individual towards another where the former incessantly follows and spies on the latter. It is habitually associated with harassment and torment by a person who fanatically pursues someone. In general sense it may include any of the following conduct:

  1. following or approaching a person
  2. loitering near, watching, approaching or entering a place where a person lives, works or frequents;
  3. keeping a person under surveillance;
  4. interfering with property in the possession of a person;
  5. giving or sending offensive material to, or leaving such material where it is likely to be found by, given to or brought to the attention of, a person;
  6. contacting or communicating with a person;
  7. sending or making available to anyone else electronic messages about a person;
  8. acting in a way that could reasonably be expected to arouse apprehension or fear;
  9. engaging in conduct amounting to intimidation, harassment or molestation;
  10. engaging in an act of violence or a threat of violence against a person or against the property of a person;
  11. causing a person to receive unsolicited items;
  12. communicating with another person by way of mail, telephone, facsimile, internet or other form of electronic communication in a manner which could reasonably be expected to arouse fear or apprehension;
  13. causing an unauthorised computer function in a computer owned or used by a person; or
  14. tracing a person's use of the internet, email or electronic communication
  15. using abusive or offensive words to or in the presence of the victim, performing abusive or offensive acts in the presence of the victim and directing abusive or offensive acts towards the victim.

Cyber Stalking

Cyber stalking is an activity in which a person or abuser or stalker stalks or harass another person or victim by misusing the internet or electronic media. In cyber stalking a stalker may contact a person either by an email, social media, messaging apps or other online media. To harass a person a stalker may post messages, pictures or information online about a person. Some may also track location or online activities.

Possibility of cyber stalking is very wide, pleadings in a recent petition before Hon'ble Supreme court of India against installations of CCTV cameras in classrooms indicates how much can technology be used as a tool for stalking. The said installation of CCTV cameras and providing live feed of the same to anyone with a user id and password jeopardizes the safety and security of young girls as also the female teachers and shall directly give rise to the incidents of stalking and voyeurism.

The conduct prescribed for the purpose of stalking varies from jurisdiction to jurisdiction.In most jurisdictions, the offender must act with the intention of causing physical or mental harm or of arousing an apprehension or fear for the safety of the person being stalked, or another person. In Western Australia, stalking may also include an intention to prevent or hinder someone from doing an act they are lawfully entitled to do, or to compel a person to do an act that person is legally entitled to abstain from doing.

In the Australian Capital Territory, an offender has the requisite intent if he knows or is reckless as to whether the stalking would be likely to cause fear or apprehension or harassment. In the Northern Territory, intention is presumed if a reasonable person in the particular circumstances would have been aware that the conduct would be likely to cause harm or arouse fear or apprehension. In New South Wales, it is sufficient that the offender knew the conduct was likely to cause fear. In Tasmania and Victoria, it is sufficient that the offender knew or ought to have known the conduct would be likely to cause harm, apprehension or fear if actual harm, apprehension or fear was caused.

Famous Incidents of stalking in India

1. One of the most famous cases of stalking was of Priyadarshini Mattoo. A law student came to Delhi to pursue her LLB degree. Santosh Singh, a pass out from the Delhi University in 1994 had started stalking her. Ms Priyadarshini had filed several complaints with the police. Santosh Singh was forced to give undertakings of not doing it anymore but it still continued. Again an FIR was filed and Santosh was arrested. He was released soon. Priyadarshini Mattoo a Delhi University law student was raped and murdered by Santosh Singh on 23 January 1996. Singh, son of IPS officer JP Singh, was also a law student along with Mattoo. The Delhi police filed the FIR but the case was handed over to the Central Bureau of Investigation two days after the murder. On April 11, 1996, the CBI filed a chargesheet against Santosh Singh and the trial began over a year later. The court acquitted Santosh Singh on December 3, 1999 amidst widespread outrage and allegations that money had changed hands in the case. Under fire for its alleged lapses in the probe, the CBI filed an appeal in the Delhi High Court in February 2000. The High Court delivered its judgement on October 17, 2006, convicting Santosh Singh for raping and killing Priyadarshini Mattoo.The court accepted evidence against Singh that he was stalking the victim. He was seen outside her house on the day of murder. On October 30, 2006, the Delhi High Court sentenced Santosh Singh to death. He challenged the sentence at the Supreme Court, which commuted it to life imprisonment four years later.

2. An incident was reported by a woman to the press which dated back to when she was 13 years old. She would attend a language class near her residence in Ghaziabad. A man one day had obstructed her way confessing how he felt about her and how he had been following her for a long time. He had let her know that he knew everything about her, including her address, schedule, tuitions, school, and so on. He even knew how she was usually accompanied by her brother. This unknown man had handed his phone number to her and threatened her to keep in contact with him. Otherwise, he would land up wherever she was as he knew everything. She had returned home and complained to her father. With the father’s warning, the man had stopped pursuing her.

Through years and times, stalking has always been a factor affecting women’s safety. Numerous women don’t even report such incidents or their complaints are not even taken in. When one person obsessively pursues another like a fanatic then that is stalking, it continues for a long time and denotes a behavioural pattern. With stalking becoming a huge obstacle in the path of ensuring women’s safety, harassing women physically, mentally, sexually and emotionally has been a huge problem for years. Sexual harassment infringes a woman’s right to safety and living a life of integrity and dignity. Stalking has turned out to be a huge driving force behind the harassment of women. The Nirbhaya gang-rape case on 16th December 2012 had led to huge protests asking for more stringent laws for women’s safety and violence against them. Justice Verma Committee suggested for change of law. Stalking is included within the ambit of crime by the Criminal Law (Amendment) Act, 2013.

The framework of Indian laws against stalking

1. The Justice Verma Committee had put forth several suggestions. It recommended that stalking should be made punishable. The Criminal Law (Amendment) Act, 2013 included stalking and made it punishable. This Act amended the Indian Penal Code (IPC). Stalking is made a crime under Section 354D . When a man tries to contact a woman and follows her in spite of the knowledge of the woman being disinterested, or keeps a tab on and follows a woman via the internet or any type of electrical communication then that man is held to be committing the offence of stalking. Under Section 354D (2), someone who commits the offence of stalking shall be liable to a punishment of imprisonment for a term extending to three years and also a fine in terms of the first conviction. During the second conviction, the imprisonment term could be extended to five years along with a fine.The offence under this section is cognizable, bailable in case of first conviction and non-bailable in case of second and subsequent conviction(s), non-compoundable and triable by any Magistrate.

2. Section 503 of the IPC is the provision of criminal intimidation. If one person threatens another with causing an injury to his/her person, property or reputation or causing such an injury to a person related to him/her and forcing him/her to either to do an act which he/her is legally not bound to or not do an act which he/she is entitled to do for avoiding such a threat or injury.

3. Section 507 is criminal intimidation by an undisclosed identity and communication. It is punishable with imprisonment for a term which could extend to two years along with a fine payable under Section 228A of IPC.

4. Section 509 provides if someone undermines the modesty of a woman and says something, portrays a gesture or makes any sound or infringes the privacy of a woman to be noticed and seen by her then that person shall be punished with imprisonment for a term which could also extend to three years along with a fine.

5. Cyber-stalking is dealt with Under Section 66E of the Information Technology Act, 2008 . When one person circulates pictures of private parts of another without his/her consent then that person is held to be infringing someone’s privacy and is liable to a punishment of imprisonment extending to three years, or with a fine not exceeding rupees two lakh or both. Whereas Section 67 lays the punishment of imprisonment for a term which could extend to three years along with a fine extending to rupees five lakh and in case of a second conviction, imprisonment for a term which could be extended to five years along with a fine extending to rupees ten lakh, for publishing or trying to publish gross and obscene material via an electronic platform. If a material is found to be consisting of sexually explicit content and if such material is tried to be published or transmitted then that is punishable with imprisonment for a term extending up to five years and fine on first conviction and further extending to a term of seven years with a fine extending to ten lakh rupees on subsequent conviction under Section 67A.

6. Harassment is defined as ‘aggressive pressure’ or ‘intimidation’. With time and development, harassment has changed its form. There are sexual, physical and online harassments. Not a day goes by when a report is filed about an incident of someone getting harassed, especially women. Stalking is a subset of harassment making a person feel insecure, scared and doubt their safety and security. Improper sexual advances, inappropriate touching, demanding sexual favours, harassment at the workplace, and so on all fall within the ambit of harassment. The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) had for the first time brought in the awareness about sexual violence and harassment at the workplace. As per the convention parties should take all possible legal help to prevent harassment, violence and sexual assault against women in their workplaces. It was in the case of Vishaka v. State of Rajasthan, where Bhanwari Devi, a social worker and a Dalit woman who was employed in a rural area in Rajasthan had been brutally gang-raped repeatedly for trying to put a stop on child marriages. The Rajasthan High Court failed to act adequately and this was followed by the filing of a PIL. The Supreme Court accepted the inefficiency of the legal system. The Vishakha guidelines were formulated keeping Article 32 of the Constitution in mind, until proper legislation would have been enacted in this case. The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act 2013 defines sexual harassment under its Section 2(n) as it being inappropriate physical contact, sexual advances, verbal or non-verbal conduct of sexual nature, showcasing pornography, and so on. According to this Act, a complaint of sexual harassment has to completed within a time period of ninety days from the date of complaint. Section 354C of IPC punishes a person for getting a picture of a woman doing a private act without her consent. The person under this is punished with an imprisonment term of three years during first conviction and 7 years of imprisonment on second conviction accompanied with a fine. Section 354A of the IPC also punishes the offender committing sexual harassment with an imprisonment term of three years and a fine. Section 499 of IPC is helpful as well because sharing indecent and gross content to harass and spoil the reputation of someone sums up to defamation.

7. Along with all the other legislations The Indecent Representation of Women (Prohibition) Act, 1987 is also quite helpful as it makes an offender harassing someone with photographs, letters, paintings, pamphlets, packages, and so on, containing indecent and inappropriate material liable to imprisonment for at least two years.

Working of the provisions

1. In 2017, the social media was taken aback by a shock when Varnika Kundu daughter of an IAS officer in Haryana had narrated her experience of getting stalked by Vikas Barala, the son of a Haryana politician, and his friend Ashish Kumar. She had been followed as well with the accused trying to barge into her car. Soon the police had arrived. The accused had blamed Varnika Kundu and her father of bringing in forged and illegal documents and the complaint. The accused was let out on the same day as he was arrested.

2. With the report of cases, women are most likely to be stalked at the cost of their lives with 9,438 cases of stalking reported every 55 minutes in 2018.

3. Cybercrime at a rise all over the world. It has provided a new platform to stalk people. It is easier, faster and more efficient. Until 2012 this was just a minor crime but over the years the problem of stalking has received attention as it has taken the lives of several. The crime of Cyber-stalking has extensively become widespread in today’s world. With electronics enhancing the mode of communication, private data and information are extremely easy to be retrieved. Cyber-stalking is a criminal offence which includes one person using the internet or any electrical gadgets and devices to stalk someone. These offenders utilize private data, destroy important information, influence minors to get them indulged in sexual activities, and so on. The offenders make great use of emails, social media, messaging applications, and so on.

4. It was seen in the case of Shajahan M vs State Of Kerala, Bail Appl.No. 1427 of 2018 decided in 06TH DAY OF DECEMBER 2018, the petitioner who had earlier been accused of committing offences under Sections 66E and 67A of Information and Technology Act, 2000 and Sections 354C and 354D of Indian Penal Code, had filed the petition under Section 438 of the Criminal Procedure Code. The petitioner was initially employed as Hamal-cum-Stitcher in the Coir Board Showroom and Sales Depot in Patna and the actual complainant was employed as a sales girl in the same showroom but in Thrissur, the old working place of the petitioner. The girl had approached the petitioner for some help as she was financially unstable. The petitioner had taken some loans on her behalf of one lakh rupees each from the Canara Bank, Thrissur. Later, the actual complainant didn’t repay the debt as promised, and when the petitioner warned her of taking action against her, she went and complained against the petitioner after which he was charged. Besides this, the girl had also complained against the petitioner in front of the Internal Complaints Committee of the Coir Board, but all were found to be unreasonable and baseless. The petitioner had approached the Sessions Court for seeking bail. The petitioner was allowed bail after paying fifty thousand rupees along with two solvent sureties. He also had to give up his passport in the Magistrate’s Court during his release.

5. The requirement of physical contact during sexual harassment is just another misconception. It was seen in one of the cases of D.S. Grewal vs Vimi Joshi & Ors, an Army Public School in Pithoragarh was run by the society known as Army Welfare Education Society. The Appellant Brig. D.S. Grewal was the chairman of the School Managing Committee whereas Col. Hitendra Bahadur was the Vice-Chairman thereof. Chairman, School Managing Committee. The respondent Vimmi Joshi had been initially appointed as a Trained Graduate Teacher in Gen. B.C. Joshi Army Public School. She was then appointed as a Graduate Teacher of Mathematics. Soon she was appointed as the principal in 2004. Mr Hitendra Bahadur while stationed at Sonmarg had written a letter to the respondent confessing his love and apparently, he would always make unwanted advances toward her. But her complaints were not taken up, rather anonymous complaints were received against her. Her services were terminated soon as well. It was claimed that the letter sent by Mr Hitendra Bahadur had nothing to do with sexual harassment. Although in this case it was held by the Supreme Court that writing unwelcome, inappropriate and unsolicited love letters to woman did amount to sexual harassment.

6. The sudden uprise of the Metoo movement took the country by shock. Hundreds of women came out with their stories appealing for justice. First few months of 2018 had seen 533 cases of sexual harassment being reported.

7. The increase in the cases of stalking and harassment has made it a daily part of everyone’s life especially a woman’s life. In our daily lives, it is difficult to find a girl or a woman who hasn’t been stalked or harassed by someone. The loopholes involved in technology have allowed it to be used by miscreants and criminals for shifting the medium of stalking and harassing people. Till 2012 stalking was hardly considered to be a crime. It was the Criminal Law (Amendment) Act, 2013 that made it a punishable offence. The biggest loophole is that the first offence of stalking is made bailable. This turned out to help several harassers and stalkers be free without any hindrance. The National Crime Records Bureau’s report showed the increase in cases from 6,266 in 2015, 7,190 in 2016 and 8,145 in 2017. With such an increase the Delhi Assembly passed a resolution in 2018 to make stalking a non-bailable offence.

Help for availing Remedies

1. The National Commission for Women (NCW) acts as a forum of redressal where women who are being stalked can file their complaints. The matter further is to be taken on by the Commission consulting with the police. Women in any part of the country can file such complaints. Depending upon the severity of the case an inquiry committee is formed by the commission who looks into the case in depth. The Commission can also call for the accused, witnesses and police records, to help in the inquiry. Women can contact the National Commission for Women by calling on either 1091 for women in distress and 011-26942369 or 26944754 to contact the NCW.

2. All social media have a set of provisions allowing users to report complaints or problems. Harassment and stalking can be reported following those methods as well. These websites are governed by the IT (Intermediary Guidelines) Rules, 2011 according to which the websites within a prescribed time have to take down the gross and obscene content following such complaints. They also have to maintain records of these contents for a period of ninety days for official purposes. An affected person can file a complaint in written form or through email attested online.

3. When someone is getting stalked, that person should immediately think of a way to turn around and try to click a picture of the stalker. This would not only reveal the stalker’s identity but also intimidate the stalker. A person being stalked shouldn’t get scared and not report the incident. Everyone must have the police station and their family and friends’ number as emergency dialled numbers so that they can be contacted immediately during such a thing happening.

4. Harassment and stalking faced online should be immediately reported with the cybercrime cells in the city. In the absence of such cells and F.I.R must be made at the local police station.

5. The Information Technology Amendment Act 2008 helped in the establishment of the Indian Computer Emergency Response Team (CERT-IN) as the national agency for dealing issues regarding computer security threats. Cases that can be reported here can involve matters regarding changes made in the hardware characteristics and system hardware without the owner’s consent or without any direction from the owner, and also on attempts of getting unauthorised access to data or information. Filling all details in the CERT website, an email can be written to them addressing all problems.


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Created on 2020/11/29 19:38 by Japhin Raj • Last modified on 2020/11/29 19:38 by LawPage