Gender Neutralising Stalking Laws

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This blog focuses on a proposal for gender neutralising section 354(d) that is stalking law. This section under IPC can’t qualify the test of intelligible differentia test laid down by Justice PN Bhagwati in Maneka gandhi case as a gender cannot be a basis of differentiation and article 14 also ensures equal protection of right when it comes to protection of right to privacy which was defined under article 21 as metaphorically similar to dignity of an individual.

What Is Privacy And How Stalking Is Considered As An Intrusion In Privacy?

Article 17 of International Covenant of Civil and Political Rights (to which India is a party) states “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home and correspondence, nor to unlawful attacks on his honour and reputation”

Which means any interference without reasonable cause or under any state official duty in a person’s life or without his consent is breach of privacy. An important case law dealing with Right to Privacy in India is K.S. Puttaswamy v. Union of India which declared it to be a fundamental right. Privacy of the individual is an important aspect of dignity. Dignity has both an intrinsic and instrumental value. As an intrinsic value human dignity is an entitlement or a constitutionally protected interest in itself.

Stalking as a separate offence did not exist in the Indian Penal Code till 2013 after the report by Justice JS Verma.

“354C (1) – Stalking: Whoever follows a person and contacts, or attempts to contact such person to foster personal interaction repeatedly, despite a clear indication of disinterest by such person, or whoever monitors the use by a person of the internet, email or any other form of electronic communication, or watches or spies on a person in a manner that results in a fear of violence or serious alarm or distress in the mind of such person, or interferes with the mental peace of such person, commits the offence of stalking. “

While The Original Legislation Went Like This

Any Man who follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman; or monitors the use by a woman of the internet, email or any other form of electronic communication,commits the offence of stalking;

The legislation is in Prima Facie violation of the celebrated Maneka Gandhi case where Bhagwati J concurring with the majority in a 6:1 decision observed:“ Article 14 of the constitution of India strikes, at arbitrariness in State action and ensures fairness and equality of treatment.”in this judgement Bhagwati J clearly define arbitrariness as the decision that no prudent men with reasonable intelligence will ever take. And indeed after going through justice Verma committee report on sexual assault both the rape section and sexual assault section which include stalking is mentioned in gender neutral way and no reasonable man after going through that report would take such biased decision. The decision taken during 2013 would now stand more against the reasonability of the decision because of the introduction of the right to privacy as a fundamental right in 2019. A private members bill in the Rajya Sabha has sought to make stalking a gender-neutral crime and a non-bailable offence. The decision taken to amend IPC through Criminal Law Amendment Act 2013 decision was not only a biased decision for not including every gender but also that decision became obsolete after the introduction of the right to privacy as a fundamental right in 2019. After this decision the criminal law amendment act bars citizens other than indian women from ensuring their access to a fundamental right of privacy hence this law should be amended in a gender neutral way.

Congress MP Husain Dalwai suggested in the bill that men who face such instances live in ‘fear and distress’ and do not have legal recourse. He also suggested that the offence should be non-bailable as the accused get bail.

Justice verma in his report also stated that “Rape, sexual assault, eve-teasing and stalking are matters of serious concern – not only because of the physical, emotional and psychological trauma which they engender in the victim, but also because these are practices which are being tolerated by a society ostensibly wedded to the rule of law.”

These all statements point to how painful this problem is and to ensure a better understanding have a glance at the following example a man is walking down alone in the woods at night, a man keeps following him and goes near him and say ,”you should not be going all alone in the night because Indian Laws does not consider you could be a victim of sexual assault , because for the laws which are listed in Indian Penal Code only considers women as a victim , and Men as the perpetrator.”

This is the modern era where LGBTQ intercourse has become legal and privacy rights have been identified, but mere acceptance of the right is not enough unless there is an enforcement mechanism like penal provision or tortious remedy available that is Injuria Sine Damnum which means where there is right there is a remedy.

William Lloyd Prosser in his article Privacy, expanded upon the views of Justice Brandeis and Mr. Warren towards the recognition of this right to. In his article, Prosser created the following three categories of torts related to privacy:

Intrusion upon the plaintiff’s seclusion or solitude, or into private affairs;
Public disclosure of embarrassing private facts about the plaintiff;
Publicity which places the plaintiff in a false light in the public eye.

A man can follow another man with the intention of sexually assaulting him which is all legal . A man can outrage modesty of another man , can take his pics and post it wherever he likes , can make any sexually coloured remark on him and this is all legal.

This example categorically explains that not a single interpretation of privacy right can be breached if it were not against the women . which demonstrates the gender biasness section 354.

These all things will keep affecting genders other than women if we went on without identifying them as a victim

Solution To The Above Problems Posed

Adhere to the legislation laid down by Justice JS verma and amend IPC and CRPC with literal interpretation as discussed in the report by Justice JS verma because the current interpretation is gender biased. Amend stalking legislation that is section 354D with replacing man and woman with the word ‘ person’ which would provide a sense of recognition to LGBTQ people and hence would cater to the need of equal protection of laws in article 14.

Enact some statutes and legislation under which breach of privacy rights can be brought to courts as mere providing right without remedy is just like DPSP which only carries the value of advisory in nature. Remedy may include punishing crimes like stalking , wiretapping, intruding to converse where there is lack of interest with compensation , fine or even imprisonment depending upon the severity of crime.

Conclusion

This blog is written to make realise the problem posed against the gender other than women. People of every gender are being getting stalked or sexually assaulted but they are not being brought to record because there is no section available to the police under which he can write down the complaint , the legislative solution to the problem discussed above was provided by Justice JS Verma committee in his report but that solution was ignored while making the amendment. The author is suggesting to neutralise the stalking laws gender wise as the current stalking legislation does not qualify the test of arbitrariness and no prudent person with a reasonable mind would ever make the above legislation. Hence the current stalking legislation should be amended as it violates the test of arbitrariness and the right to privacy . The author also suggests that legislation should also be enacted enforcing the right to privacy which discusses the breach at length in both civil as well as criminal law.

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What Is Privacy And How Stalking Is Considered As An Intrusion In Privacy?

While The Original Legislation Went Like This

Solution To The Above Problems Posed

Conclusion

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