The difference between justice and equality is that the former is the quality of being fair, while the latter is the state of being equal. To ensure this fairness the Indian constitution has secured Article 15(3) which states that special provisions can be made for women and children. This is the justification for making sexual harassment and assault laws biased for women and children, appearing in Sections 375 of the Indian Penal Code (IPC) and The Protection of Children from Sexual Offenses Act (POCSO) respectively. In recent years, the debate over what constitutes the part of life and liberty continues, and, after the KS Puttaswamy judgment, the right to privacy has been identified and guaranteed as a fundamental right. This means that any interference without reasonable cause, or under any state official duty in a person’s life, or without his consent, is a breach of privacy. Section 354(D) of the IPC only secures this fundamental right for women, stating that 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 offense of stalking
This legislation is in violation of the case Maneka Gandhi v. Union of India, where J. Bhagwati concurred with the majority in a six-to-one decision and observed, “Article 14 of the constitution of India strikes at arbitrariness in State action and ensures fairness and equality of treatment.” In this judgment, J. Bhagwati clearly defined arbitrariness as the decision that no prudent men with reasonable intelligence will ever take. This decision was made in 2013 when any sexual relationship between two people other than a man and a woman was considered an unnatural offense under Section 377 of IPC and the right to privacy was not a recognized fundamental right. As years passed, the constitution adapted and the right to privacy was extended to sexual relationships other than those between men and women. Thus, Section 354(D) became arbitrary and must undergo gender neutralization.
Section 354(D) was added in 2013 through the Criminal Law Amendment Act, which was based on Justice Verma’s committee recommendation for gender neutralization. Concerns over the gender neutralizing of the sexual harassment law arose:
- If sexual harassment laws became gender-neutral, men could counter sue women and it would be difficult to identify who the victim was;
- Almost all reported instances of stalking were made by women.
Hence, the Criminal Law Amendment Act did not actually gender neutralize the stalking law.
Let’s consider the premise that gender neutralizing the law would make it difficult to identify the victim. To assume that is true, one must make assumptions about the parties involved, including that the stalking is sexual in nature. However, stalking is not always sexual. For instance, there are female detectives that stalk men people as a pre-matrimonial research service. Here there is a clear violation of a fundamental right to privacy where no one can counter sue because the case is prima facie; one person was would clearly be the target.
To respond to the second contention, one must understand how police register a stalking case.
A stalking victim goes to the police and the police note which IPC sections were violated. In a stalking case where the victim is not a woman, the police would not have a section under which to register the report, hence nothing could be reported. But just because it was not reported does not mean that the stalking victim did not suffer.
According to a recent study of college students, those who self-identify as gay, lesbian, bisexual, or transgender “were twice as likely to experience cyberstalking or e-mail harassment from a stranger as were students who identified themselves as heterosexual”. ( Finn, 2004). There is a strong link between stalking and other forms of violence in intimate relationships: eighty-one percent of women were also physically assaulted; thirty-one percent of women were also sexually assaulted. These statistics show that stalking often leads to physical assault, a particular violence not limited to female victims. Similar statistics are not available in India because only the law only recognizes women as stalking victims, but the above statistics have persuasive value.
Another important reason to recognize stalking as a gender-neutral crime is for the sake of social justice. As the law is now, it leads society to believe that a man who stalks a woman is sick-minded. But, if a man is following a transgender person, society could blame the victim for dressing provocatively, as it is not a recognized crime. Such victim-shaming gives rise to the victim blaming themselves, which can ultimately lead to depression and panic attacks. When people are conditioned to believe that abusive behavior is normal, they may not recognize an interaction was actually stalking. Therefore, not recognizing stalking as a gender-neutral crime would have catastrophic implications on non-binary people. Recognizing stalking as a crime regardless of gender would provide relief for many people who currently do not have it and would reinforce the equal protection of laws.
Mayank Bhandari is a first-year law student at Dr. Ram Manohar Lohiya National Law University in Lucknow, India.
Suggested citation: Mayank Bhandari, Gender Neutralizing of India’s Stalking Laws, JURIST – Student Commentary, June 4, 2020, https://www.jurist.org/commentary/2020/06/mayank-bhandari-gender-neutral-stalking-laws/
This article was prepared for publication by Gabrielle Wast. Please direct any questions or comments to her at commentary@jurist.org
