So-called ‘minor’ sexual offences such as stalking inhibit women from occupying public space

On the night of August 7, Vikas Barala, the son of the Haryana BJP chief, and his friend, are alleged to have stalked Varnika Kundu, the daughter of a bureaucrat, on the streets of Chandigarh. Data from the National Crime Records Bureau show that there has been a rise in stalking registered since the provision was introduced through the Criminal Law (Amendment) Act, 2013; from 4,700 cases in 2014 to 6,227 in 2015. Despite rising numbers, the conversation on sexual violence in India continues to be centred on rape. Given the involvement of high-profile individuals in this incident, an often-trivialised form of violence against women has suddenly taken centre-stage.

As a legal offence

Before the 2013 amendment came in, the law was ill-equipped to deal with the offence of stalking. The closest it came to being addressed was Section 509 of the Indian Penal Code (IPC): “Word, gesture or act intended to insult the modesty of a woman.” The provision was inadequate in tackling the menace of stalking because one had to prove that the accused intended to ‘outrage the modesty of the woman’ through his act. Other provisions such as Section 354 — “Assault or criminal force to woman with intent to outrage her modesty” — necessitated the use of physical force. Further, the phrase “outraging the modesty of a woman” is not defined anywhere in the law, leaving its interpretation open-ended. The Information Technology Act, 2000 also lacks adequate provisions to deal with electronic stalking. Under it, Section 66E, on the violation of the privacy of an individual, requires the intentional capturing, publishing or transmission of an obscene image of a person without their consent.

It took mass outrage and public pressure after the Nirbhaya gang rape in Delhi in 2012 to compel the government to recognise the varied dimensions of sexual violence against women. Apart from expanding the scope of rape and penalising voyeurism and eve-teasing, the 2013 Amendment also defined and recognised stalking as a standalone offence. Section 354-D of the IPC makes both physical and electronic stalking an offence. Here, under subsection 1, the intention of the perpetrator is irrelevant as long as the woman in question “has clearly expressed her disinterest”. Subsection 2 criminalises the monitoring of a woman’s online behaviour.

While the 2013 Amendment is a welcome step, some believe subsection 2 goes too far. The Verma Committee draft stated that online monitoring should amount to stalking only when it results “in a fear of violence or serious alarm or distress in the mind” of the victim. In view of this, it has been argued that subsection 2 has the potential to be used arbitrarily. Further, there are three exceptions to the offence if the conduct was: (i) pursued for prevention or detection of crime by a person authorised to do so, ii) pursued under any law or iii) reasonable and justified in the circumstances. While exception iii can to a certain extent counter the open-endedness of subsection 2, it is in itself vague and can prove to be an escape clause given that stalking is culturally normalised. Such loose drafting can be attributed to the fact that the 2013 Amendment was a knee jerk reaction.

The parochial discourse

While sexual violence of varying degrees and forms is a routine affair for women in India, it is the “grave” forms of sexual violence primarily, such as rape, that dominate our everyday understanding of the issue. Other “minor” forms such as stalking and “eve-teasing” are not only normalised but are often romanticised and encouraged, especially in popular culture such as Indian cinema. One only needs to watch Badrinath ki Dulhania and Raanjhanaa to understand this argument.

The perception that violence against women must necessarily involve some form of bodily harm does not only inform societal attitudes but also the law. The fact that it took a heinous incident of rape for stalking, eve-teasing and voyeurism to be recognised as offences demonstrates the myopic lens through which sexual violence against women is viewed in India. One can also argue that these offences would have never been introduced in the law had the government not come under pressure from the public. Interestingly, the introduction of stalking as an offence was met with deep resistance from some parliamentarians. Some argued that it could be misused by women while others viewed stalking as an acceptable norm in the country since “everyone has stalked women at some point in their lives”. Finally, the Committee’s recommendation of making stalking a non-bailable offence was rejected. Now, only repeated stalking is non-bailable. Courts too have been complicit in this process of trivialisation. In 2015, a court in Australia acquitted an Indian man accused of stalking two women on the ground that Bollywood had influenced him and thus such behaviour was normal for Indian men.

Broadening the narrative

Had these series of events not involved politicians and bureaucrats, it is likely that neither the criminal justice system nor the media would have acted. The reality is that while rape is a heinous crime, it is not the only form of sexual violence women in India face. So-called “minor” sexual offences such as stalking, voyeurism and eve-teasing in effect deprive us of our fundamental right to occupy public space without fear. The Chandigarh incident gives us an opportunity to broaden our narrative on sexual violence and it’s about time we start recognising the multitudes of infractions as a part of it.

Namrata Mukherjee is Research Fellow, Vidhi Centre for Legal Policy, New Delhi