Saturday, 14 April 2012

STALK TALK

STALK TALK

A new law has been proposed which makes stalking an offence in India. But the proposal is waiting for a nod from the top authorities. Biswadip Mitra talks to legal experts about the effectiveness of the law and whether stalkers can be harshly dealt with


Remember Priyadarshini Mattoo, the 25-year-old law student at Delhi University who was stalked for years by her senior student, and was subsequently raped and murdered by him in 1996? There was public outcry when the accused was set free by the lower court. Subsequently, the case was dealt with by the higher courts and the accused was first sentenced to death and later given life imprisonment.

But despite media glare and complaints of incidents of harassment and stalking, nothing seems to have changed even in 2012. We keep hearing about cases of harassment faced by women: they are followed on the streets and in public places; attempts are made to contact them directly or indirectly via communication devices — telephone or online. Simply put, women are traumatised when their every move is watched by someone who is possibly obsessed with them and perhaps nurtures some dark motive.

But why is a woman in modern India vulnerable to stalking? It’s because there are no credible deterrents: there is no law to ‘specifically’ deal with stalking. Stalking as an offence is yet to be defined and adopted as part of legal provisions. So what happens when a woman complains of stalking? The case is registered under different provisions of the Indian Penal Code (IPC) — sections 354, 503, 504, 506, 509 — that deal with outrage of modesty, insulting words or gestures, assault, criminal intimidation and the like. But there are loopholes that allow a stalker to slip away. Sometimes a case drags on for such a long time that the complainant loses courage to pursue the matter. Moreover, the police are often ill equipped or are not active enough to deal with stalking; or the police helplines may or may not function when needed the most.

Given this background, the Union Ministry of Women and Child Development (WCD) had proposed, following demands by women groups and activists, that a new law, Section 509B, be inserted into the Indian Penal Code (IPC). The proposed law defines stalking as “repeatedly following the woman from place to place, repeatedly contacting the woman through mails, fax, etc or repeatedly loitering or watching the house or the woman’s workplace”. The punishment proposed is seven years’ imprisonment and a hefty fine.

We contacted the WCD and learnt that this proposal is now lying with the Union Home Ministry. Sources in the Home Ministry in Delhi say that “it is matter of policy decision taken at the top ministry level.” In other words, there hasn’t been much development since the proposal was made by the WCD.

THE LAW & ITS LOOPHOLES

Reading the proposed law one may raise a couple of questions: How does a woman prove criminal intention on part of the alleged stalker? And, even men can be subjected to stalking. The proposed law doesn’t deal with that.

So what do the lawyers say? According to Flavia Agnes, senior advocate and noted activist who is part of the women’s movement, Majlis, “The proposed law must be tight enough not to let the culprit get away. It is indeed difficult for anyone to prove the criminal intention on part of an accused.”

Because there is no specific provision as of now, a complaint of physical stalking is filed under a section of IPC which requires that there has to be some physical violence or abusive words or intimidation. “If none of these elements are present, yet the offence of stalking is committed by repeatedly following a woman or trying to contact her, the entire case against the accused may fall flat. So, there must be strong circumstantial evidence to substantiate the allegation,” she says.

She stresses the need for stronger implementation of laws. “There are already many laws for different offences, but how much have they been implemented?” she asks. Referring to the police, she says that officers, especially those at the lower rungs, must be sensitised about the menace of stalking.

Senior Supreme Court lawyer and human rights activist Colin Gonsalves says, “This proposed law is long overdue. This is a legitimate exercise of the legislative right. It is a welcome step. By making it women-specific, the focus of the law is right.” However, he adds that there must be some explanation or a proviso attached to the section which will exempt those, like a journalist, who may be exercising his/her professional rights. “The ‘mens rea’ or the ‘criminal intent’ of the alleged offender must be proved in any case,” he says.

Delhi-based lawyer Shilpi Jain mentions sections 354 (assault or use of criminal force to outrage a woman’s modesty) and 509 (word, gesture, sound, exhibit to insult modesty of a woman) of the IPC that are often used in such cases. But in the absence of any proof of ‘criminal intent’, it becomes tough for the woman to prove the offence of stalking and obtain a restraining order from the courts. “Often many women journalists come to me and complain that they are being stalked. Sadly, I tell them that they have to put up with it,” she laments.

Flavia, however, says,“Women must not suffer quietly. The moment they realise that they are being stalked, they must alert their families and friends. Police must be informed. You have to nip it in the bud.”

Referring to the‘mens rea’, Shilpi says, it needs to be ascertained “from the surrounding circumstances.” For a woman, merely being stalked without any physical contact or provocation can be terrifying, she says. “But it can become difficult to prove the ‘criminal intent’ of the offender. So, each case has to be dealt on the basis of the description (which has to be graphic) of the woman to understand what actually happened.”

Pune-based lawyer Abhijeet Sarwate says,“Currently, it all depends on the interpretation of the laws by the court. In any case, there has to be ‘criminal intent’ on part of the alleged offender. If, for example, a complaint is filed against a journalist for allegedly stalking a person, and s/he says that s/he was on a professional assignment, how can ‘criminal intent’ be attributed to that journalist?”

Shilpi, however, doesn’t think it’s necessary to make an exception. “In such cases, police investigation will show that there was no ‘criminal intent’ on part of the journalist or the private investigator. An exception will allow everyone to take recourse to it,” Shilpi explains.

‘HE WAS WATCHING MY HOME EVERYDAY’

Amrita Chaudhury (name changed) was a budding journalist in New Delhi when she met a Public Relations guy at an event. Pleasantries were exchanged and business cards changed hands, just as it happens in any profession. Soon, Amrita forgot about the guy. However, the guy didn’t forget her and the reasons were not professional. It was a combination of obsession, passion and inexplicable psyche that got this guy to follow Amrita. He stood in front of her office at the busy Connaught Place in Delhi; he found out her home in the city and kept a close watch on her movements. She bumped into him at events. It went on for days and Amrita had no idea that no matter where she was going, a pair of eyes was watching her.

And then began the more troublesome phase. “This guy began approaching me whenever I was out on the streets on my own. It could be when I was going to a shop or was on an assignment and walking on Akbar Road or in CP. I always found him around and he always wanted to talk to me. He even wanted to take me out for dinner, which was unethical by all means. But I thought the guy was just trying to promote his professional interests,”recalls Amrita. “Initially I had thought that this was just a part of a professional life where you keep meeting the same group of people, and Delhi’s media is all about contacts and networking. But then the maid in our house alerted me about a man who was seen watching our home everyday. I was curious, and I was was shocked to see that it was the same PR guy standing under the tree,” says Amrita.

She spoke with her colleagues about the guy. Some laughed it off. Some took the matter seriously. And it was at the suggestion of one of her friends, who was once a lawyer, that she took the matter to the police. Delhi Police has an Anti-Stalking Cell. “They were cooperative, more so because I work as a journalist. Soon, they confronted the guy and interrogated him. They found that his mobile phone was full of my photographs at different locations in the city, and I was not even aware,” Amrita says. “He confessed that he was following me, because he liked me. It was found that he was married and his wife was a primary-level school teacher. She was informed, along with the PR firm that had employed him. His wife requested me not to pursue the case and promised that she will not let it happen again. The last that I know that they have left Delhi for good,” informs Amrita. But the entire episode left an indelible mark on her mind. So, she has been watchful about prying eyes. Who knows, it could be another stalker on the prowl.

CYBER STALKING

Much before the Information Technology Act of 2000 came into being, one Ritu Kohli had registered a complaint with the police in Delhi against a person who was using her identity to chat over the Internet. Kohli further complained that the person gave her address and telephone number, and was talking in an obscene language. Consequently, Kohli received almost 40 calls in three days mostly at odd hours from different places. That case was dealt with under section 509 of the IPC.

In a recent advisory to the State governments, the Union Home Ministry has said that offences like ‘cyber-stalking’, ‘cyber-bullying’ or ‘sending obscene videos (and) audios containing explicit sexual content to children’ can be booked under existing provisions of the Information Technology (Amendment) Act 2008 and the Indian Penal Code, which carry sentences ranging between two to five years.

Section 66A of the Information Technology (Amended) Act of 2008 deals with sending offensive and annoying materials though Internet or other communication devices.

Lawyer Shilpi Jain says, “In the current form, the law is too wide and it is subjective to one’s interpretations. What may be offensive to one, may be an innocent communication to the other. And when you make such a communication a criminal offence, then there has to be clarity. Therefore, it will be wise to put in examples along with the provision, so as to make correct implementation of the law easy.”

Published in Sakal Times, Pune, India. April, 2012.