BR Garima Rao and Prerak Sheode
Abstract
The seemingly innocuous crime of Stalking has become more dangerous than ever in the 21st century, particularly in India. The perpetrators of this crime have pulled out all stops - right from capitalising on digital ubiquity, prevailing societal normalisation and unsaid gender and culture norms -to daringly commit the crime and get away with it. Despite such a grave concern, there has not been much evaluation of this new-age problem. A deep dive into the mechanisms of Bollywood in propagating problematic notions of Stalking has uncovered just how deep the roots of stereotypes seep into the minds of the populace. Culture has played a substantial part in shaping how people perceive Stalking. The distinction between individualism and collectivism has been represented through a range of perceptions of Stalking behaviour. In pursuit of solving this very issue, this article aims to examine Stalking in India with the same in South Korea and Singapore, in the light of prevailing societal norms and applicable laws in these countries. South Korea and Singapore have a relatively developed legislative and judicial structure for Stalking, which might be adaptable to India’s menacing Stalking problem. While doing so, the article tries to establish that gender-neutral laws and specialised statutes for Stalking are the need of the hour.
Keywords: Stalking, digital ubiquity, societal normalisation, legislative and judicial structure.
Introduction
The exponential growth in technology and its rise in reach and accessibility of the internet might seem like a boon to humanity. But it also hides its darker side i.e., it gives rise to potential crimes, which were unthinkable previously. One such crime that has become a menace in the digital space is Stalking. Stalking has snowballed into something more than just following a person; it has become a precursor to a crime- a seemingly innocuous act that is ravaging lives. The deadly cocktail of online and offline Stalking opens a can of worms that has deeper repercussions.
This is much graver in countries that normalises Stalking in the first place. South Korea and Singapore have dealt with a much higher extent of normalisation of stalking, often through mediums like mass media and societal prejudices. In respect of this, India gains a common footing with these countries where its own film industry ‘Bollywood’ has perpetrated the same notion of de-sensationalising ‘stalking’ .This article first seeks to examine the Indian laws to its society in isolation, then provide a comparative analysis with the South Korean and Singaporean Laws, in order to find the cure to the problems that are plaguing India.
Definition and Etymology of Stalking.
Stalking as a term was used primarily to describe the obsessive following of celebrities, but later it was widened to the obsessive following of common people too. The Oxford Dictionary defines Stalking as "the crime of following and watching somebody over a long period of time in a way that is annoying or frightening."[1]
The legal definition was first given by the State of California[2] in the 1990s, in its anti-stalking law which stated- "willful, malicious and repeated following and harassing of another person. This was the first legislation that explicitly stated Stalking is illegal.
While the US had introduced a law on Stalking way back in the 1990s[3], India was relatively late to the party. Something as cruel and gruesome as the Nirbhaya Rape case forced India to bring in Anti-stalking Laws through the amendment of Section 354D.[4] of the Criminal Law Act (2013).
The saddening part is that the laws were brought in because it was a major precursor to the crime of rape and Stalking was not recognised as a standalone concern. This points fingers at the severe trivialisation of the offence in India.
Normalisation and Mass media: Bollywood under the Societal lens.
Although there has been an attempt to criminalise Stalking as an offence, there is severe normalisation which mocks the gravity of the offence. One of the congenators in this regard is media. Two theories justify this –
● Behaviour Change Communication theory: education-entertainment [5] utilises the power of the media to influence people's opinions, and
● Cultivation hypothesis[6] argues that the people themselves change their reality by spiking their media consumption, so that it correlates with the said media.
An observed pattern is highlighted when it especially comes to Bollywood movies: "A man pursues a woman in quest of love, the girl spurs his advances, but the man perceives it as a challenge. The protagonist proceeds to harass and subject the female character into "submission" even resorting to abducting the woman till she assents”. It suggests that as long as one continues to stalk one's interest, the other personwill eventually fall in "love", as seen and endorsed in Indian motion pictures like Ranjhana and Three.[7]Not only does mass media promote harassment, but it also intensifies targeted harassment with regard to gender.
“Rom coms always paint an unrealistic picture of falling in love.”This may seem like a harmless afterthought, but making Stalking behaviours seem like a part of romance, can translate into grim ramifications, where fiction seeps into reality.[8] This has also garnered a hint of legitimacy in the legal world to make it even worse. An Indian man accused of Stalking in Australia successfully proved to the court that the patient pursuit of a lady would make her fall in love with him because it was showcased in Bollywood films[9]. This can affect people's understanding of the gravity of the offence, or whether it is an offence at all, to begin with.
Culture vs gender
Something that does not often come up in discussions of social constructs is how culture frequently plays a part in shaping gender norms. Culture, differentiated into individualism and collectivism, based on liberty, may largely influence a layman's thoughts about Stalking. While individualistic countries prefer to exist among others, collectivist societies prefer to live with others, i.e., coexist as a whole. As per a study survey from the Journal of Interpersonal Violence[10], surveillance, approach, intimidation, and physical behaviour were equated with Stalking, by more women than men. The findings also back up patterns of perception observed in individualistic Western nations, demonstrating that stalker behaviour is universal[11].
According to past studies, individuals from a collectivist nation like India should be more receptive to aggressive wooing[12].Women from Maldives, India and Indonesia, with lower individualism scores,[13] reported more severe invasions as Stalking, that is, forced sexual contact or being spied on. In contrast, women from Finland and Scotland with higher individualism scores reported more harmless intrusions such as being asked for dates or being asked for casual sex at social events.
A common theory exists which relates collectivist nations that possessstrong societal codes of conduct, to a bufferthat prevents stalking tendencies in people. An isolated individual suffering from loneliness, social decoupling and stigmatisation will most likely drive themselves to the crime of stalking if left to their devices. A tight knitsocial framework is seen to be primarily integrated into collectivist countries[14] as compared to weaker social structures in individualistic countries. Such a ‘framework’will have a ripple effect in ensuring that no person is left alone to a worrying level. In collectivist countries like India, community activities are often held in localities and neighbourhoods where the norms in place encourage maximum participation from the members of the community. A higher sense of familiarity will expose the to-be stalker to more people and hence dis-incentivise the person to stalk. Individualistic countries, on the other hand, see ‘group activities’ with more disdain, and promote independence and personality more than kinship. A ‘wall’ is thus created between people, through its social norms, that divides members of the locality, so much so that even neighbours will not know each other in those countries. This may explain why, historically, there have been higher cases of Stalking in individualistic nations than in collectivist ones.
This theory has its own inconsistencies. It is pertinent to note that individualistic cultures are far more sensitive in their perception of Stalking than collectivist ones. Therefore, there may not be a significant disparity with instances of stalking between them, if we equalise the level of perception of Stalking in collectivist countries so that the actual number of Stalking cases will includecases where the limited perception of collectivist countrieshavepreventedreporting of the crime.
Laws in India.
In India Stalking is mainly dealt by two laws – section 354D[15] of the Indian Penal Code,1860 and section 67 and section 67A of The Information Technology Act, 2000.
The essential part of Section 354D states that, “Any man who time and again tries to contact or contacts a woman, who has clearly indicated in not making an acquaintance. It even applies to electronic modes of communication.” It is a bailable offence and the punishment is three years of imprisonment and a fine for the first conviction and five years and a fine upon the second conviction.[16]
Section 67 and Section 67A of The Information Technology Act, 2000 deal with cyber Stalking:
Section 67 deals with punishment for publishing or transmitting obscene material in electronic form i.e., whoever publishes or transmits or causes any material that is obscene.
Section 67A deals with punishment for publishing or transmitting of material containing sexually explicit act, etc., in electronic form.
Section 354D caters to both Physical Stalking and Cyber Stalking. Stalking is a bailable, cognisable and non-compoundable offence.[17]
Initially, when the Bill was brought in, after the recommendations of the Justice Verma Committee[18], the aim was to make the offence non-bailable. However, due to severe opposition from the house, the Bill was tweaked and made bailable, which makes the law completely toothless. The primary purpose of bringing the law after the infamous Nirbhaya Rape case was to make Stalking, the precursor to other crimes ranging from suicides, rape, femicides, acid attacks and murders, a grave crime and a deterrent in the first place.[19] And this has been proved time and again through many landmark judgements. In the Priya Mattoo Case,[20] the victim was obsessively stalked before being murdered. In Varnika's case[21], the victim was followed and stalked, subsequently leading to nabbing and attempting to abduct. In this case, the defendants were out on bail the very same day. Moreover, making it a bailable offence fuels the perpetrator to threaten the victim/survivor and commit the crime again, possibly doing it a lot more than they had the first time, additionally making it even more dangerous for the victim. CyberStalking criminals have enough time to erase the minimal evidence available or commit another crime. As the senior Congress member Shashi Tharoor puts it "now is the time to talk about Stalking", stalkers in India have a "sense of impunity" as it is a bailable offence.[22]
Also, Stalking is rarely seen as a standalone crime; it is often added as one of the crimes committed.[23] And as Stalking is not the most heinous crime of the lot, many lawyers do not even claim compensation under the Stalking laws. In the landmark judgement of Shri Deu Baju Bodake v The State of Maharashtra[24],the victim had committed suicide due to constant harassment by the stalker during her work and persistently insisted that she get married. In this case, the High court had opined that, in addition to abetment to suicide, charges had to be filed even under Stalking. The lack of knowledge or proficiency in filing the suit under various sections provides the victim with incomplete justice. The very point of bringing the law is defeated if the lawyers do not apply the section while filing the appeal.
Like many other sexual crimes in India, even Stalking has been gendered. Before the amendment of The Criminal Law Act, 2013, Stalkingwas primarily dealt with under section 354[25] of the Indian Penal Code, 1860 – sexual harassment and section 509[26] of Indian Penal Code, 1860. But it is preconceived under S.354D that only a man can be a stalker while the woman is the victim. Although there are statistics to justify this[27], this downside discourages men from reporting the crime, which recapitulates the idea of toxic masculinity. Men, in general, face a lot of social stigma and ridicule while reporting a crime like Stalking[28].If the law gives them the cold shoulder, they will be much worse off. The law also turns a blind eye to the LGBTQIA+ community.[29] 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 email harassment from a stranger as were students who identified themselves as heterosexual". This shows the dire need to make this law universal, not gender-specific. In criminal law, much importance is given to not punishing the innocent, but we don't exercise the same amount of caution in ensuring that the law protects everyone; this is an infringement of article 14[30] of the Indian constitution.
The current definition of Stalking only fits into the existing definition of Stalkingwhen "the perpetrator starts making his victim aware of such pursuing or shadowing or monitoring by communicating with his victim, which may be perceived as annoying, unwanted or threatening by the victim." The whole situation where the stalker follows the victim and the latter is entirely ignorant of the same is omitted. It is pretty interesting that, in the IT act, there is no mention of the word "Stalking". It is presumed to be under section 67. This presumption that a certain criminal activity is ‘included’ under a certain section which prima facie deals with something else, without being mentioned explicitly, shows the amount of importance bestowed upon it by the law. The actual act of Stalking on an online platform has been just formed under the shadow of Section 354D. This is the first significant criticism that a giant menace like cyber-stalking, is not having “separate” Laws to regulate the crime.
Another major criticism is that the law is not comprehensive enough. For instance, public data that is rightfully already available on public platforms can aid a stalker in Stalking the victim. In the case of Sagarika Ghosh[31], in 2017, when the post she put out did not resonate with a few people, to show their vengeance, they had indicated to her that they knew where her daughter studied, with her school address. Incidents like these are particularly intimidating for women to step into careers that require them to be in the public eye. Such professions may also direct them to disclose their private data either through law or voluntarily.
There are situations where the same law might also have the elements of defamation[32], criminal intimidation[33] and outraging the modesty of a woman[34].So, there is no concrete differentiation as to when the existing laws apply and when the law of Stalking applies. This clearly indicates the nebulous area of law that the crime of Stalking falls under.
The last criticism is about restorative justice for the victim. Although this applies to the whole of criminal law, there is no restorative or therapeutic justice available to the victim. Stalking and Cyber-stalkingare crimes with long-term repercussions for the victim. In a study, it was found that Stalking has had impacts ranging from PTSD flashbacks to the incident, and this can also be accentuated if the perpetrator was a close friendor family.[35]
Landmark statutes outside the domestic scenario
Countries with similar societies have legal systems that aim to serve their similar needs. Laws imposed in one of those countries may prove beneficial for the other. South Korea, with a collectivist society similar to the Indian one in that regard, is one of the leading countries with strong anti-stalking laws. With the Common law setup being one of the common denominators with India, Singapore can also provide anovel perspectivewith their stringent legislations concerning harassment.They can be used as a roadmap for future Indian acts concerning harassment. As Stalking owes its origin to the celebrity hounding craze, South Korea as a music hub is quite familiar with that predicament and has done its due diligence regarding the same.
A deep dive into Sasaeng culture: South Korea's very own stalker frenzy
Sasaeng – The Korean word that stands for "private life"[36] has a different connotation colloquially, which is an invasive behaviour into lives of celebrities. It has been a longsubject matter of concern in Korean entertainment Industry, with many of the country's top stars constantly being followed and watched outside of working hours.
Criminal behaviour like abetment to suicide, assault; and Stalking are a few examples of Sasaeng behaviour[37].They are known to set up camp outside idols houses[38] and even use their fingernails to scratch the arms of the idol to collect blood. In many countries, Stalking is considered at least a minor crime. However, it was not even a crime in South Korea until recently. As a result, the Sasaeng stalkers usually feel untouchable. This is further aggravated when these rabid fans hide behind secret profiles on various Korean social media platforms - Daum café, Naver, Nate, Cyworld, Kakao Talk, and many more. The majority of them are juveniles, making prosecution even more difficult.
The Nationwide Sin mungo of the Ministry of Legislation released a national proposal titled "legislation dealing with Sasaeng fans invading privacy" on October 9, 2013[39]. The suggestion examined the usage of wiretapping equipment, hotel door keys and passwords to achieve the same. It also dealt with criminalising acts of leaking celebrity mobile phone numbers and residential registration information. This was never passed.
Since 1999, eight different versions of the Anti-stalking Act[40] have been proposed, but none of them were passed owing to their inability to address the shortcomings in the statute itself. It is clear that the South Korean government has time and time again failed to understand the purpose of creating a Stalking law. A law made is to fill the gaps in the current system and address the future concerns of the predicament. The problem of Stalking was prevalent in South Korea and was accordingly recognised by its state, however, the process of drafting the piece of legislation, targeting it, was severely crippled by bureaucracy and delayed timelines.
Current scenario: An attempt to address the inadequacies of the past.
Recently, the Parliament has passed a law on Stalking, 22 years after the issue was first presented (in the name of mending the flaws left uncovered by the '13 Sasaeng statute). Stalking (스토킹) is now a crime if it involves frequently approaching, following, or obstructing someone against their will, waiting/observing a victim around their home, job, or school, and generating anxiety or panic by sending text messages or films to the victim [41]. It also enables the authorities to issue restraining orders and perpetrators might face up to three years imprisonment or a fine of 30 million won [42]. The punishment could be raised to a maximum of five-year imprisonment or a fine of 50 million won when a weapon or other dangerous object is used.[43] The victims would be provided with safe houses right before theoffender is released from prison or if the victim’s life is under threat from the stalker.
Defects in the new laws
Under the new regulation, Stalking must be committed regularly to be constituted as a crime. Here the measure of what is “frequent” is not disclosed in this law. So, subjective opinion has to be relied upon to consider the act as Stalking. Tragically, in a recent case involving a triple murder in the country, the perpetrator evaded being convicted of primary Stalking by relying on this technicality under the new law.[44]
This law is applied in such a way that “if there is no explicit bodily harm” then the person is not guilty of Stalking. As a result, punishment is imposed only "after an incident has occurred"[45]. This has led to 9 out of 10 Stalking suspects going unpunished.[46]
Furthermore, the new laws have not been implemented effectively, as there were three cases of a stalker victim being murdered “right under police protection" by the stalker[47].There was a clear sign of Stalking not being taken seriously by the policeman as well as signs of complacency in even dealing with violent cases of the same.[48] Received by the public as a knee-jerk reaction, the Seoul Police Department announced that they will re-review all their Stalking cases and create a separate task force for the same.[49]
A recent ordinance has also been brought in to do a “risk assessment” for the stalker[50]. There would be three levels assigned to each degree of risk. The second and the third level that involve higher degree of risk shall contain acustodial element, that allows the police to confine potential stalkers to police custody. This means that only those cases which involve the stalker threatening to murder, assault the victim or violate a restraining order may land them in custody. This ordinance would have discounted those cases that exhibited a lower level of threat but actually resulted in violent outcomes. This has been remedied in the new amendment brought out, that gives preventive support to everyone and not just people who have suffered directly due to Stalking[51].However, the harm caused by the ordinance cannot be erased now.
The Stalking law was seen to have the potential to create a better framework that addresses stalking. However the new ordinances that were brought in to address the gaps in the new law dampened people’s hope, because it further complicated the process. It becomes apparent thatto solve the law-and-order issue, instead of enacting fresh laws, one must concentrate on ensuring that the existinglaws are implemented properly. The actors who have to implement the law – the police and the executive– should make sure that the law is understood and interpreted properly.
The recent amendment regarding the distribution of “self–protection gear” [52]that helped the victim track the stalker, and keep themselves safe, might be enacted out of noble intentions buthas problematic repercussionsthatthe authorities did not take into account.A cursory search towards the features of the gear set will result in uncovering the fact that it includes a mobile application which monitors the entrance of the victim’s house, a home surveillance camera and a door opening sensor or a whistle alert. Consequently, the amendment might inflame privacy and safety concerns of the victims if the application is hacked, furthermaking it harder to rationalise the amendment as a legitimate response to an already complicated issue. The same concerns can be traced to combating COVID – 19, where South Korea used extensive surveillance and had immense criticism as people’s privacy was compromised[53]
India and South Korea have very similar social makeup. In both the countries, there exists heavy normalisation of Stalking by the common public and the mass media. The laws made in both countries was also a knee-jerk reaction to a horrendous crime that followed Stalking, and in a way was an attempt to save face by both governments. It has created more problems as the laws are not well debated and thought through. Whereas makingStalking a bailable offence has made the Indian Stalking Law “toothless”, the risk assessment system has made the South Korean Law broken.
The provision of a “safe house” for the victims of Stalking, if implemented effectively can be an excellent solution to safeguard the victim in South Korea, since the new amendment has been brought in for the prevention of crimes and not necessarily as an after-effect of a crime. However, that is not a feasible option for India to follow. The overworked[54]and understaffed[55] police systems in India[56], combined with the high population would make it nearly impossible to station every victim in a safe house and have them protected. The 2020 NCRB data suggests there are approximately more than 8,000[57] cases of Stalking in India, while South Korea had about 4,000 cases[58] in the year 2020.
The protection gear that is provided for victims in South Korea, might not be a great option for India. To a country that has recently dealt with the Pegasus project and other surveillance mechanisms and does not have a robust data protection system, it might lead to severe backlash than support among the common public. Feasibility is another hurdle, as India’s mobile phone penetration stands at 56 per cent[59] while, that of South Korea stands at 96 per cent.[60]
It is not that South Korean laws cannot provide insight and support for India’s legal perspective on Stalking, however, India can definitely learn from Korea’s mistakes. The highly detailed Korean laws on stalking havehelped increase awareness on what can be construed as Stalking, leading to more and more reporting of the offence. The special treatment of Stalking legislation in the Korean parliament can help India address Stalking as a separate crime through new laws and amendments. The gender-neutral approach taken by the country can provide a detailed mechanism on how to de-gender the laws and make it all inclusive even for male victims. The self-protection gear, for example, is even made available to men[61] therefore India too can follow in Korea’s footsteps in this regard.
Poha Act [62] (Singapore)
Singapore has a multicultural foundation and a legal system inherited from its colonisers, one that is also shared by India. The nation has thrived for decades without any communal enmity. With digitisation sweeping the city-state, it has seen a sharp spike in Cyber Stalking offences.
After much deliberation, the legislature of Singapore launched Protection from Harassment Act. 2019.The act was passed with the aim to address all complaints of harassment, including charges. This section seeks to study how a gender-neutral bill targeting harassment functions, look at its impacts and analyse whether it can prove as an example for India to follow.
Singapore lacked a dedicated anti-harassment statute, leaving aggrieved
parties with only scant statutory protection in patchwork legislation incorporating ad hoc
measures. Before this legislation, Stalking was not considered a criminal act. So, to address the insufficiency, Singapore passed a landmark bill that tried to touch all the elements of harassment, including Stalking.
The Bill made the following amendments to Singapore's harassment law:
● The expansion of harassment law to include 'cyberbullying.'
● Introduction of a new offence of unlawful Stalking
● More sentencing and relief provisions[63]
Unlawful Stalking[64] is now a crime under the POHA Act. If a pattern of behaviour involves stalker-related acts or omissions, produces harassment, alarm, or distress, and was intended or understood to be likely to create harassment, alarm, or distress, it is considered illegal Stalking. The ‘pattern’ element is also seen in Korean laws, but it begs whether a series of Stalking activities is necessary to constitute one offence. The "repeated" clause further highlights how far its reforms have to reach.
On June 1 2021, a new court was established to handle all civil and criminal harassment issues, including doxing (the internet publication of a person's personal information) and threatening behaviour.[65]
As Stalking cases boomed in India with a 46 % rise in 6 years[66] and the pendency rate for Stalking stands at nearly 40%[67] , it must institute a similar specialised court system to address the burgeoning of ordinary courts and fast-track proceedings for speedy justice. Another learning curve for India could be about the very definition of Stalking.
As mentioned above, the POHA act’s definition and coverage of unlawful Stalking is one the most comprehensive ones. It also has a demarcated section for additional punishment for Stalking intimate partners[68] and vulnerable victims[69]. This caters to the layered problem of Stalking – that most of the victims know their stalkers and intimate partner Stalking is also a growing problem. The same can also be incorporated in India. Another approach for the same could be that of the points system as suggested by the High court, where each factor related to the offence is given a range of points, based on the intensity of the aggravating factor, before the total amount of points is tallied at the end. The higher the number of points, the longer the imprisonment term.[70]
Conclusion and Way Forward.
The current Indian legal system is not enough to address Stalking. The legislature has failed to come up with a comprehensive law, the executive has not effectively and optimally implemented the law, and the judiciary has not done a great job with the speedy disposal of the cases. The Indian society’s normalisation of the crime has not created a social deterrent and has in fact, done just the opposite.
India is still stagnant in neutralising gender in laws that affect men too. Factions of the populace, such as the LGBTQIA+ community, often suffer more nuanced experiences than a heteronormative one. They are more likely to get stalked and are susceptible to repeated offences related to Stalking[71].
The mostvulnerable partyin the crime ofStalking, is the victim. Although the law would have punishment and sanctions against the perpetrator, the victim is not given the same relevance as the stalker. So, from the victims' shoes, speedy and timely disposal of cases-through specialised courts, restorative and retributive justice can be ways to heal their scars effectively. It could be in the form of counselling, therapy, support groups or subsidy on mental health services for the victims. This is all the more important in times when suicide attempts by victims of Stalkinghave increased.[72]
Due to the dearth of perception of Stalking in India, It is high time that standardised sensitisation on a national level is brought to existence, through media, like mandatory inclusion of disclaimers and trigger warnings that can be set for any visual depiction of Stalking in media. The government can also encourage these sensitisations programs in vernacular languages which can have a better reach. Also, promoting films that call out this behaviour /which address Stalking, through tax concessions, publicity, exclusive screenings etc would help in de-normalising the crime.
Efforts from social media giants like Instagram should ideally involve establishing user-friendly guidelines, in order to empower users to report Stalkingand tackle Stalker-likebehaviour. Recent endeavours include, showing profile visits in case of private accounts, notifying the user about calls being recorded and South Korea’s Law on making shutter sound effect mandatory for when photos are clicked[73]. These guidelines would at the least alert the user of being stalked. It must also be ensured that the redressal process for Stalking does not end at the user report. It must be a complete process of full transparency including disclosure of penal action taken, if any, on the stalker by the company. There must be a two-pronged approach between the companies and the government wherein there would be defined sanctions in case of non-compliance to the proposed guidelines.Recognising Stalking as a standalone offence and not just an additional offence to another more significant crime would lead to more visibility, which will have a domino effect and lead to more reporting[74] of the crime as well as increased deterrence. But to recognise Stalking as a standalone crime, it must be exhaustive enough in its definition, while simultaneously considering the nuances of the societies.
[The authors are 3rd year law student at NLU, Orissa.]
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