INTRODUCTION

Incidents of stalking of women have been on a rise since the last couple of years. According to the National Crime Records Bureau (NCRB) report in 2018, there was a 51% rise in the stalking cases being registered but the conviction rate remains abysmally low. In 2018, the reported cases rose to 9438 from 8145 in 2017 and 7190 in 2016. ‘Of the 4,699 cases registered in 2014, only 134 cases resulted in the conviction of 262 people, according to the information provided by then minister of state for home, Hansraj Ahir, in the Lok Sabha’. Similarly, in 2015 police across the country registered 6,266 cases of stalking but only 340 cases saw the conviction of 473 accused, the conviction rate remains less than 5% (379 convictions in 7,132 registered cases, some still in progress).

In many cases accused keep harassing the victims to withdraw their cases & even resort to attacking women for filing a complaint against them. Glaring examples of such incidents: in 2015 when Meenakshi, ‘a New Delhi teenager who was stabbed to death by Jai Prakash, a man she had accused of stalking and harassing her as she filed a complaint against him’; the case of Priyadarshini Mattoo, who was raped and murdered by her stalker cannot be forgotten easily. Recently in January 2020, stalker killed a woman at her home in Kerala; similarly in Tamil Nadu, a 17-year old was brutally murdered and dumped in tea plantation by her stalker of a long time both on the same day; ‘a woman was stabbed in broad daylight in East Delhi by her stalker, the minute the stalker was out on bail, he sought to avenge her complaint’. In many cases, victims are also forced to leave their college, school, place of residence etc. Incidences like these, which are not uncommon, affect the psyche of the victims to withdraw cases & not file any complaint as they may end up losing their lives. Even when a complaint is filed action is not taken by the police and usually trivialized which leads to even fewer convictions. It is this desolate state in which the victims are rendered helpless and without justice.

Questions that come to our mind are, Is there a law against stalking in India? Are they effective? In India, Section 354D of the Indian penal code, 1860[“IPC”] deals with the offence of stalking, this section was added by the criminal law (Amendment) Act, 2013, post the infamous Delhi gang-rape case. On prima facie reading, there are some loopholes in this section, which may contribute to low conviction rate or even withdrawal of cases.

CHINKS IN THE SECTION:

Firstly, as per this section, a man who follows a woman, to contact her or to foster personal interaction, despite clear indication of disinterest, commits the offence of stalking. This means that the offence of stalking won’t be complete until there is a clear indication of disinterest by the woman; there are situations where such a clear indication is not possible. Can those situations be counted as stalking? A problematic definition of stalking. However, in the second part, i.e cyberstalking, the woman need not show her disinterest. There is no direct provision which deals with the issue of cyberstalking but some sections of Information Technology Act [“IT Act”] and Indian Penal Code put together, specifies the offence of cyberstalking and the punishment thereto. It is interesting to see that physical stalking has direct provisions but the punishments for cyberstalking are more stringent and direct as compared.

The legislature has added three provisos where the offence of stalking is not attracted. First and the second provisos are similar in nature, it implies that if the act of stalking is committed in order to prevent crime and is done by a lawful authority who is entrusted to do so by state or by any law, would not attract this section. However, the third proviso adds onus on the man to prove that the act he committed was reasonable and justified. What is reasonable is not defined.

The purpose of punishments is usually deterrence with retribution and/or restitution. According to this section, a person on first offence shall be punished with imprisonment of a term up to 3 years and shall also be liable for a fine and the subsequent offence will be of imprisonment extended up to 5 years and liable for fine. But the problem with this provision is that the first offence is a cognizable and a bailable offence and the subsequent offence becomes a non-bailable offence. But the subsequent offence is calculated only after conviction of the first offence, and as per the data provided above conviction rate is very low because they harass the victims into the withdrawal of cases and hence results in no conviction.

According to the NCRB data, 80% of the people accused under this legal section are given bail even before the charge sheet is filed. They are free to harass the victim into taking their complaints back. A survey was conducted by The Hindustan Times newspaper in 2016 on the increase in stalking cases, the report stated that 83% of the accused were given bail before the investigation started in the year 2015 and 85% in 2014, NCRB data to some extent reinforces the same which can clearly be seen from the number of reported cases, convicted cases and the no. of withdrawn cases.

ANALYSIS:

Arrests are to act as a deterrence, from harassing, tampering of evidence as well as fleeing but if there are no arrests and people get bail right away & victims are left without any immediate remedy, the purpose of addition of this legal provision is not fulfilled. Non-conviction & lack of seriousness towards the crime also results in the loss of confidence and faith of the victims in the justice system. The commission of the crime is very easy but its effects are long-lasting, it affects the victim’s mental as well as physical health. Stalking is a precursor to many serious and heinous crimes such as rape, murder, acid attack etc. During The Quint’s ‘Talking Stalking’ campaign in 2017 on making stalking non-bailable for the first time offence itself, during an interactive session it was realised that “Stalker in India has a ‘sense of impunity’ as it is a bailable offence”. Later on 3^rd August 2018, Dr Shashi Tharoor proposed this in the Lok Sabha in the form of a Private Member’s Bill, but the bill is yet to see light.

One of the reasons for the omission of the prosecution in these cases is a lack of understanding of the law by the police officers, which prevents successful prosecution at future state, where evidence may exist. Lack of understanding of the law can also be blamed on movies and TV shows for normalizing and romanticizing stalking, as seen from various movies & series like Ranjhanaa, the Notebook, the Graduate, You, Toilet: Ek Prem Katha, and have such songs embedded in them which normalize stalking. These play an important role, as they affect the psyche of a person and makes him to think that it is a normal act of showing love. This toxic culture now pervades our society and inevitably affects our perception of the offence itself. This can be seen at many instances where the victims were asked to ignore such cases, the officers register their complaint, but say things like “yeh toh hota rehta hai. Koi Romeo Hoga, ignore kardo (This keeps happening. It must be some Romeo(lover called in local language), just ignore him.)” The crime is normalised & trivialized by such statements and the seriousness of this crime is not seen. Victims are told to ignore it instead of taking strict action against the accused, they are blamed and commented upon and even complaints are not registered.

Secondly, there is a problem with the wording of this provision. This section only considers “women” to be the victim and ignores the fact that men too can be the victims. How effective is a law when half of the population is not protected by it. It clearly states that ‘when a man, who follows a woman’, these laws are made in the behest of the mindset that only women need protection. It is a gender-specific legislation, which needs to be changed.

The wording of this provision should be changed, from specifying whether a man or a woman to ‘any person’ as stated in stalking laws of other nations like the Netherlands making it a gender-neutral law. Widening the scope of this legal provision will in a practical sense make the law effective.

Thirdly, this legal provision does not explain cyberstalking and its punishment, which is one of the most common forms of harassment in recent times of digital advancement. Although as stated above joint readings of IT Act and IPC provisions specify the offence, there is a need to put it in the statute as well.

CONCLUSION:

The provision for bail is given to people as a benefit of doubt, as a beneficial aspect of law, but instead is used by people/offenders as an opportunity to commit more crimes & silent the victims. There has to be a stop against such crimes against women and its seriousness has to be acknowledged if we are to create a rule of law society.

Thus, the author concludes that there is an impending need for amendments to the legal provision in order to make it more effective and bring it up to date with current times. Following are some suggestions:

1. Time-bound trials– Experts suggest that the time period must be capped at 2 months as it is theorized to increase the conviction rate. It should be noted that most stalking cases are kept pending for over a year as per NCRB.
2. It should be made as a Non-bailable offence for first-time offenders too– This measure must be put in place as cases of stalking can turn into more severe offences when the offender roams free. No contentions that access to bail is a right, but it should be seen from a different angle when it comes to stalking, the psyche, intention and mental state of the accused has to be taken note of.
3. Sensitization and understanding among police officials– They must be trained to understand the severity of the offence, this lack of understanding of the law should be nipped in the bud as it acts as one of the precursors to much more heinous crime.
4. Complaints made possible through an online or telephonic medium. The government should create a national helpline number for reporting such crimes. It should also be backed by a quick response team of police officials in each city for providing immediate help in cases of emergency so as to help prevent such crimes.

Some steps are taken by some state governments but the required importance is not been given to this issue & it’s a long road to go because in its current form there can be sheer misuse of this provision.

ABOUT THE AUTHOR

Sirisha Prasad

Sirisha Prasad is a second-year law student at National Law University, Jodhpur. She has developed an interest in the fields of Arbitration, Criminal Law, and IP Law and wishes to explore these interests further. She can be reached at sirisha.1543@gmail.com.