Behind the Bush: Stalking, A gender-biased law
In this blog, the author has discussed the laws related to sexual harassment. The author has criticized Section 345D as violative of the fundamental right for being a gender-biased law.
“The right to be protected from sexual harassment and sexual assault is, therefore, guaranteed by the Constitution, and is one of the pillars on which the very construct of gender justice stands.”
-Justice JS Verma Committee
Protection from sexual harassment and assault is a right guaranteed under the Constitution of India, specifically within the context of Article 21, the right to life and personal liberty. Key to this is the right to dignity, which has long been recognised as a crucial part of the Constitution of India, and whose importance was recently emphasised in the decision of the nine-judge bench of the Supreme Court in K.S. Puttaswamy vs Union of India.
The Criminal Law (Amendment) Act, 2013 amended the Indian Penal Code and inserted ‘Stalking’ as a crime under Section 354D(1). Under the provision, stalking is defined as ‘an act where any man repeatedly follows and contacts a woman so as to foster personal interaction despite a clear indication of interest by such woman.’ The section was added by Criminal Amendment Act 2013 post the Delhi gang-rape case. The Section clearly mentions that if anyone tries to monitor the activities of a woman on internet, it will amount to stalking. If the stalker indulges in any of the activities defined in the section, he shall be guilty of the offence under Section 354D of Indian Penal Code. It therefore provides a three dimensional explanation to stalking:
(i) despite her disinterest, physically persuading a woman repeatedly by conducting in such a way that may create fear in her,
(ii) monitoring her digital whereabouts, communications, etc. by digital conducts which create serious threat, alarm or interfere with her mental peace.
(iii) spying or watching her to in order to pose a harm to her.
Stalking no longer means just causing distress to someone by following the person or forcibly interacting with them. It now also includes unwanted telephone calls, sending derogatory SMSs or emails that “disturb the peace of mind of any individual.” Those guilty of these offences will also have to pay hefty fines, and undergo imprisonment.
In present times, physical stalking has become secondary to online stalking due to the increased reach and easily available information which can be effortlessly manipulated by someone. Unlike physical stalking, cyber stalking may not need the perpetrator and the victim to stay in near proximity. Cyber stalking necessarily infringes privacy through digital behaviour of pursuance with the help of communication which is made with the intention of creating a feeling of fear or psychological trauma that may make the victim restless, impatient or suffer from sleeplessness or eating disorder due to acquit anxiety.
The distinction between stalking and cyberstalking is that, some stalkers may never engage in behaviours outside of cyberspace and it cannot be merely an extension of physically proximal stalking. If no physically proximal stalking occurs, but online stalking does, cyberstalking must be a separate phenomenon-one characterized by repeated online or electronic pursuit behaviours.  There are no specific provisions to deal with cyberstalking and Section 67 of the Information Technology Act, 2000 only comes into play when some obscene content is posted by the stalker.
The Black’s Law Dictionary describes “Gender Neutrality” as an adjective that is suitable for, applicable to, or common to, both male and female genders. It describes the idea that policies, language, and other social institutions should avoid distinguishing roles according to people's sex or gender, and emphasizes on the equal treatment of men and women legally with no discrimination. Gender neutral laws redefine the definition of gender specific laws wherein the law is framed and broadened to include all persons equally to protect them without any difference.
Gender bias is one of the biggest lacunas of Indian criminal laws, and laws on stalking continue to insinuate this. The section only considers “women” to be the victim and ignores the fact that even men can be the victim. The Section states that whoever tries to monitor the usage by a woman of internet, e-mail or any other mode of electronic communication shall be liable for committing the offence of cyber stalking. In 2010, Economic Times conducted a survey and it was reported that, men are as vulnerable as women to sexual harassment in India, but unlike women, the law offers no protection to them. A law that consciously allows the society to think that a certain crime or set of crimes can only take place against a particular gender and that these crimes are committed only by a particular gender is against the principle of human dignity.
Section 354D Violates Fundamental Rights
Part III of the Constitution guarantees fundamental rights to every citizen of India. Article 14 enshrines the right to equality before law and Article 15 provides for prohibition of discrimination on the grounds of sex. Men therefore must be entitled to the same rights as women. It goes against the basic structure of the constitution when the very fundamental right of Equality is denied to one-half of the population by the legislature on the basis of their gender.
One may be tempted to justify the constitutionality of Section 354D of the IPC in terms of Article 15(3). However, despite its ameliorative character, Article 15(3) may also be interpreted as merely enabling the state to provide women and children with higher thresholds of protection, without allowing it to abdicate its constitutional duty to protect its citizens from human rights violations. India is a signatory to several international covenants on the rights of individuals, such as The Universal Declaration of Human Rights, 1948, The International Covenant on Civil and Political Rights, 1966 and The International Covenant on Economic, Social and Cultural Rights, 1966, all of which upholds the inalienable right of every person to equality and human dignity, yet when it comes to promulgated gender neutral laws, India has failed miserably. The downside of not having a gender neutral law is that men feel that the judiciary and legislature is impartial and do not safeguard their interest as prescribed in the Constitution of India and is unjust in its refusal to protect men.
It must be noted that Section 354D of the Indian Penal Code protects women from men. Creators of this law failed to take note of famous cases like that of Megan Meier, where the perpetrator was a woman victimising another young woman. Offences that take place against men sexually cannot be side-lined in the name of protecting women. Legislations that are enacted in India currently penalize only the male gender and not the female for crimes such as sexual assault, stalking, adultery, voyeurism, rape, domestic violence, dowry death, harassment at workplace etc. None of these pro women legislations are framed on the basis of scientific results as to why they are tilted to favour only a single gender. These came into force because of the socio legal environment and the inequality between the people who lived in the society during those times, but now the times have changed. There has been a shift in the way people think and how men and women have equally today gained accesses to everything as a measure of empowerment and upliftment.
In a common law country like India, where the legislature plays a predominant role in ensuring equality and justice for all, the primary step in safeguarding gender equality is through addressing the issue through the way of legislation. The legislature has the responsibility to enact laws which are rational which must protect the weaker section of the society and provide upliftment ensuring that it does not negatively cause harm or neglect the other section who are equally susceptible to the same harms and offences.
The Committee for the first time, acknowledged that sexual assault of men is a reality and that there has to be provisions of the law that give protection to them. The Supreme Court of India dismissed a public interest litigation (PIL) that prayed to make the nature of laws that pertain to rape, sexual harassment, stalking, voyeurism, and outraging the modesty etc gender-neutral. The apex court termed the PIL an ‘imaginative petition’.
The petition sought to challenge the constitutional validity of Sections 354 (assault or criminal force with intent to outrage her modesty), 354A (sexual harassment), 354B (assault or use of criminal force to woman with intent to disrobe), 354C (voyeurism), 354 (stalking) and 375 (rape) on the grounds that it was in violation of Articles 14 (right to equality) and 15 (discrimination on grounds of sex) of the Constitution. The judges stated that it was not the Judiciary's prerogative to change the Indian Penal Code, and the job of amending legislation was of the Parliament: "We cannot direct the Parliament to collect data regarding it". Moreover, Chief Justice Deepak Misra agreed that both men and women can be perpetrators of gender-based crimes, but it was not in the hands of the Judiciary to put in legal policies and mechanisms to deal with such issues.
Dr Shashi Tharoor, MP for Thiruvananthapuram in the Lok Sabha, has introduced the private bill in the Winter Session of Parliament. This Bill proposes to change the word “Any man” under section 354D to “Whoever” and recommended that the Government of India amend Section 354D of the Indian Penal Code 1860.
The constitution of our country is the prime and fundamental law of the land. As under Article 14 the government has a mandate to make laws equally applicable to all persons with no distinction on the basis of caste, creed, religion, age or sex.
Laws are given a mandate of being applicable to every person equally in a particular society without any injustice being caused to others. The law regarding Stalking specifically portray and convict only men as stalkers and also assume that men can never be victims of such crime hence such acts against men are not even defined. Giving the law a plain reading, it can be understood that women can carry out such acts with impunity. Stalking a man would never implicate a woman as such an act by a woman is not constituted as an offence. When a law is framed in such a way that it is applicable only to a certain class of persons and not available to another class whereby there is scope for injustice it becomes necessary to rectify the same.
Footnotes  JUSTICE JS VERMA COMMITTEE, Report of the Committee on Amendments to Criminal Law, .  K.S. Puttaswamy v. Union of India, 10 SCC 1 .  THE CRIMINAL AMENDMENT ACT, SECTION 354D .  DEBARATI HALDER, Cyber Stalking Victimisation of Women: Evaluating the Effectiveness of Current Laws in India from Restorative Justice and Therapeutic Jurisprudential Perspectives, pg. 108, .  JAISHANKAR, K., UMA SANKARY, V., Cyber Stalking: A Global Menace in the Information Super Highway. ERCES Online Quarterly Review, pg. 2, .  BOCJI & McFARLANE, Seven Fallacies about Cyberstalking, Prison Service Journal, Vol. 149, pg. 37-42, .  INFORMATION TECHNOLOGY ACT, SECTION 67 .  BRYAN A. GARNER, Black’s Law Dictionary, 10th Edn., .  THE ECONOMIC TIMES, Even men aren't safe from sexual harassment at workplace: Survey, https://economictimes.indiatimes.com/special-report/even-men-arent-safe-from-sexual-harassment-at workplace-survey/articleshow/6389438.cms, .  THE CONSTITUTION OF INDIA, ARTICLE 14 .  THE CONSTITUTION OF INDIA, ARTICLE 15(1) .  THE CONSTITUTION OF INDIA, ARTICLE 15(3) .  PREAMBLE, UNIVERSAL DECLARATION OF HUMAN RIGHTS, .  Meir was a victim of cyber bullying in “MySpace” by another woman Lori Drew, who bullied Meir in the disguise of a teenage boy. Meir committed suicide due to the bullying, JENNIFER STEINHAUER, Verdict in MySpace Suicide Case, New York Times, Nov. 26, . https://www.nytimes.com/2008/11/27/us/27myspace.html  NISHANT,L AND DEVANSHI,D., Critical Commentary on the Gender-Bias Route of Sexual Harassment Laws in India: Examining the Pro Female Tilt and its Consequences, International Journal of Technical Research and Application, .  Supra note 1, 416.  DEYA BHATTACHARYA, SC dismisses plea to make sexual assault gender neutral: Move reflects court's reluctance to view rape cases as victim-centric, https://www.firstpost.com/india/sc-dismisses-plea-to-make-sexual-assault-gender-neutral-move-reflects-courts-reluctance-to-view-rape-cases-as-victim-centric-4337983.html, .  THE CRIMINAL LAW (AMENDMENT) BILL .
National Law University, Jodhpur.
(Image used for representational purpose only.)