Describe the offences of Voyeurism & Stalking. [MPCJ 2013]
Ans. In the aftermath of Delhi gang-rape ‘Nirbhaya’ case which shook the conscious of nation. The government of Indian constituted a committee led by retired Chief justice of India Shri J. S. Verma to suggest changes in the law governing sexual assault on women. Subsequent to that, acting on the recommendations, the parliament enacted Criminal Law (Amendment) Act, 2013, which inter alia created new offences such as Sec. 354 (C) for Voyeurism and 354 (D) for stalking in the IPC w. e. f. 03.02.2013. These two offences are being discussed as under-
(1) Voyeurism: – Etymologically, the word ‘Voyeurism’ is derived from the French word voyeur which literally means “one who looks”. Under section 354 C of the IPC, following essentials are required to constitute the offence.
(i) That any man watches or captures or disseminates the image of a woman.
(ii) And it is done so while the women are involved in a given circumstance in such a private act where she would usually have the expectation of not being observed either by the perpetrator or by any other person at the behest of the perpetrator. The Explanation No. (1) attached to the section further elaborates the expression ‘private act’ to include an act of watching the place where women in the given circumstances would reasonably expect her privacy and more specifically where the victim’s genitals, posterior or breasts are exposed or covered only in underwear, or the victim is using a lavatory, or the victim is doing a sexual act that is not of a kind ordinarily done in public.
(iii) And, for the above act the victim has not consented because the Explanation No. (2) attached to the section goes to state that to the extent of the victim’s consent the offence stands decriminalized. But, if such consent was limited to the only capturing of the image then the act of the dissemination of same by the accused is liable to be punished as an offence of Voyeurism.
It also needs to be mentioned that the offence of the Voyeurism as contained under section 354 C of the IPC is women specific offence. While, on the same line a gender neutral and more generic provision is also provided under Section 66E of Information Technology Act, 2000 to encompass wider area.
(2) Stalking: – Section 354 D of the IPC takes into account both, the physical stalking and also cyber stalking:
(i) Physical Stalking: It happens in following situation-
(a) That a man follows a woman and thereby either he succeeds to contact her or his act just remains in the realm of an attempts to contact such woman.
(b) That intention of such man is to foster personal interaction with such women.
(c) That such man continues to do so repeatedly despite a clear indication of disinterest by such woman to him.
Cyber stalking: – “Cyber stalking” is defined as a crime where the stalkers use internet or any other electronic device to stalk someone. Under section 354 D clause secondly states that it is also stalking if accused monitors the use by a woman of the internet, email or any other form of electronic communication.
Exception:- Section 354 D of the IPC also provides following exception of the physical and cyber stalking-
- That is, if stalking was made for the purpose of preventing or detecting crime and the stalker had been entrusted with the responsibility of prevention and detection of crime by the State. Or,
- If stalking was made under any law or to comply with any condition or requirement imposed by any person under any law. Or,
- When in the particular circumstances the stalking was reasonable and justified.
It also needs to be mentioned that in the aforementioned conditions, section 354 D makes stalking per se punishable. But, if during such stalking a child below the age of 18 year is targeted with a view to publicize such material in which children are engaged in sexual activities and to terrorize such children then it also constitutes a separate offence under 67 B of the Information Technology Act, 2000. Likewise, if while stalking, the stalker tries to publish any obscene material or sexually explicit about the victim then depending upon the situation he may also be liable under section 292 of the IPC or 67 & 67 A of the Information Technology Act, 2000.