Criminalising Stalking: Need For Legislative Reform And Progressive Interpretation 

The Nagpur Bench of the Bombay High Court has stirred a discourse on the interpretation of stalking, a criminal offence under the IPC, Section 354D. Justice G.A. Sanap has opined in Amit Chavan vs State of Maharashtra that stalking requires repetition, ruling out the possibility of prosecuting the offence in case of ‘a solitary instance of following the victim‘. 

The provision under Section 354D of the Indian Penal Code reads as:  

1. Any man who—

1. 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
2. monitors the use by a woman of the internet, email or any other form of electronic communication, commits the offence of stalking

The provision aimed to deter the crime of unsolicited sexual advances has stringent sanctions with perpetrators facing incarceration for up to 3 years and a fine. In case of subsequent conviction, the term may extend up to 5 years. Given the definition and sanctions the law appears stringent on paper, but it remains virtually defunct due to the troubling essential ingredient in the provision that only repeated stalking qualifies as a crime. This too explains the abysmally low conviction rate in stalking cases in India.

The definition of stalking undermines the intent behind the law.  The provision seems oblivious to the fact that even a single instance of stalking can instil profound fear and apprehension in the mind of an individual from public spaces. The provision fails to account for the psychological and emotional toll of such predatory behaviour and discounts the course of conduct of the perpetrator. 

Criminalising stalking: global and historical context

For much of history, stalking was not formally recognised as a criminal offence. It wasn’t until the late 20^th century that the gravity of the offence attracted global attention following the death of Rebecca Schaeffer who was shot dead by an obsessed fan in California in 1989. The incident spurred nations to address the insidious crime with legislation. The State of California was the first to draft an anti-stalking legislation in 1990.

Similarly, the British Parliament enacted the Protection from Harassment Act of 1997. The early attempt at criminalisation suffered with the infirmity of lack of clear and universal definition which pervades till now. However, the Amendment to the Protection from Harassment Act in 2012, vide the Protection of Freedom Act of 2012 fairly cured the impediments of defining stalking. This included inserting two new provisions Section 2A (Offence of Stalking) and Section 4A (Stalking involving fear of violence or serious alarm or distress). 

In India, the recognition of stalking as a criminal offence came painfully late. The prolonged legal vacuum allowed countless instances of stalking to spiral into irreparable losses of life and dignity. Among the most harrowing cases was of Priyadarshani Mattoo in 1996, a law student of Campus Law College who was brutally murdered and raped in her apartment by her stalker. 

Like most of the laws for women’s safety and welfare in India, stalking was criminalised after mass mobilisation in the wake of the Nirbhaya incident.  The mass movement shook the government from its slumber and led to the creation of the Justice J.S Verma Committee on 23^rd December 2012.  The Committee addressed stalking as a serious concern that instilled emotional and psychological trauma. The report further underscored stalking as a violation of the fundamental right to protection against sexual harassment.  

The suggestion to criminalise stalking was not merely to punish but to prevent the commission of transgression. The committee had taken the view that offences such as stalking were perceived as minor offences but had the potential to deprive children of their right to education and their freedom of expression and movement. The Committee had suggested that ‘Preventative measures for the initial minor aberrations are necessary to check their escalation into major sexual aberrations‘.

However, despite observations of the committee the recommendation for legislating the provision fell short of providing a comprehensive definition which was directly taken into the Nirbhaya Act also known as the Criminal Law (Amendment) Act of 2013. 

Defining stalking remains a challenge for any society, particularly in an era of rapid advancements in information technology. As public and cyber spaces expand, precautionary legal provisions addressing stalking must act as an active deterrent. Harassment is the genus and stalking is the species. Jennifer Gatewood Owens of the Department of Criminal Justice and Criminology at the University of Missouri-Kansa City is of the view that the definition of stalking shall entail three elements:

a pattern of conduct directed at a specific person, conduct intended to place that person in fear for his or her safety and conduct intended to place that person in fear for his or her safety. 

The legal framework shall take into account the course of conduct of the perpetrator whether such conduct or behavioural pattern creates a sense of fear, intimidation or apprehension in the mind of the individual, without limiting the scope of application to fear of threat likely to cause severe bodily injury or death. The approach shall be more holistic in recognising the psychological and emotional trauma inflicted by the perpetrator during the course of conduct.

Judicial interpretation and missed legislative opportunity

The court plays a vital role in shaping the contours of justice, particularly in addressing gender-based crimes. A progressive interpretation of Section 354D could have strengthened its deterrent effect by interpreting the provision by the action of the perpetrator in the course of conduct, which ultimately led to violence by the perpetrator either psychological or physical. It is unassailable to say that the provision inherently falls short in defining the act of stalking.

The High Court’s interpretation of the provision exposes the real-time disconnect of the law with the lived realities of women. The perpetual apprehension of women when navigating public spaces often is a reality and the bare perusal of the provision that requires recurrence to trigger the provision jeopardises its intent. Since stalking is a crime which escalates, to nip the crime in the bud is the inherent aim of criminalising stalking.

Furthermore, it is imperative to recognise that even a single act of stalking can deeply undermine a woman’s sense of security and autonomy. Legal measures against such predatory behaviour have to be swift and decisive. Instead of counting the number of times a woman has been stalked or followed the course of conduct shall be the prime ingredient in law to trigger the provision. The law serves as an aegis against crime and injustice, not a barrier. 

Furthermore, the law of stalking, as it stands, is a gendered provision and overlooks the need for inclusivity in its scope. A gender-neutral approach is imperative to ensure that the law accommodates and addresses the lived realities of all individuals regardless of gender identity. The Transgender Persons (Protection of Rights) Act, 2019 addressed certain offences such as violence and abuse, the approach is narrow and does not include stalking as a crime.

In India, a woman facing stalking can approach a civil court seeking an injunction, enabling her to restrain the stalker without engaging with the complexities of the criminal justice system. While the avenue is crucial, it also underscores a missed opportunity within the criminal justice system.

For instance, the Domestic Violence Act of 2005 has a provision for a protection order under Section 18. Such protection orders are expansive in scope and could be instrumental in addressing stalking comprehensively. Moreover, its scope could extend to safeguarding her family members and the communication of the order by the magistrate to the nearest police station could have ensured effective enforcement of the precautionary provision.

A similar model could have been seamlessly incorporated into the procedural code during the recent overhaul of the criminal justice system. Yet, the tweaking of the provisions turned out to be a missed opportunity to address the systemic gaps.

The law of stalking in India remains fraught with limitations. The interpretation of the provision and the provision in substance seeking repeated instances of stalking as a prime ingredient betrays the deterrent effect of criminalising the provision. As global and domestic legal framework evolves, there is a critical need to consider the legal research and evolve accordingly to align with the lived experience.

The Indian society is scarred by heart-wrenching instances of sexual violence that continue to haunt our collective conscience.  These tragedies – along with countless unreported atrocities call for systemic reforms that pervade the structure while placing women and marginalised groups at the mercy of unchecked violence of all sorts.