by Divij Joshi, a law student at NLS, interning with CIS for its privacy project
What is the Criminal Law (Amendment) Bill, 2013? What will it change?
The Criminal Law (Amendment) Bill is a bill to be introduced in the Indian Parliament, will replace the Criminal Law (Amendment) Ordinance, 2013 currently in force, and aims at amending the existing provisions in criminal law in order to improve the safety of women. The Bill seeks to make changes to the Indian Penal Code (IPC), the Code of Criminal Procedure, and the Indian Evidence Act. The Bill will introduce provisions in the IPC which would criminalise sexual voyeurism and stalking amending legal provisions to protect the privacy of individuals, such as discontinuing the practice of examination of the sexual history of the victim of a sexual assault for evidence.
What threats to privacy will the Act address?
The Act will address the following violations of physical privacy:
Current Law: Stalking is generally characterized by unwanted and obsessive harassment or persecution of one person by another. It can be a physical act or can be done through electronic means usually the internet. It may or may not be an act physically threatening the security of an individual; however, it can cause mental trauma and fear to the victim. It is a blatant intrusion into an individual’s privacy, where the stalker attempts to establish relationships with their victim without their consent. The stalker also intrudes into the victim’s private life by collecting or attempting to collect personal information the victim may not want to disclose and also misuse it. Stalking, in any form, degrades the privacy of the victim by taking away their choice to use their personal information in ways they deem fit. Presently, stalking is not recognised as a punishable offence.
Draft Provision for Stalking: The ordinance introduces the offence of stalking under Section 345D of the IPC, and makes it punishable by imprisonment of not less than one year to three years, and a fine. The provision prescribes that ‘Whoever follows a person and contacts, or attempts to contact such person to foster personal interaction repeatedly, despite a clear indication of disinterest by such person, or whoever monitors the use by a person of the internet, email or any other form of electronic communication, or watches or spies on a person in a manner that results in a fear of violence or serious alarm or distress in the mind of such person, or interferes with the mental peace of such person.’ Under the new law, constant, unwanted interaction of any one person with another, for any reason, can be made punishable, if the actions result in fear of violence or distress to any person, or interferes with their mental peace.
What is being Amended: The present law disregards the reasons or intent for the stalking, by clearly defining the elements of the offence and making stalking as a stand-alone, punishable offence. Prior to this draft provision in the IPC, India had no appropriate response to stalking as an offence in both physical or electronic forms. The Information Technology (IT) Act, that is supposed to deal with cyber-crimes, overlooks breach of online privacy and stalking that don’t lead to publication of obscene images or other obvious manifestations of physical or mental threat. Presently, the general provision under which victims of stalking can file complaints is Section 509 of the IPC, that states, ‘Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both.’
There are several problems with using this existing section to address stalking. There is no clear definition and scope for ‘intrusion of privacy’ under this section. Usually the offence is coupled with other forms of harassment or violence and not considered as a separate offence. The provisions of this section require the criminal to have the ‘intent of insulting the modesty of a woman’. Apart from difficulties in defining ‘modesty’ of a woman, the scope of harassment is also limited to acts that intend to insult the modesty of a woman excluding any other intentions as criminal behaviour. Australia, United States of America and Japan have penal provisions which criminalise stalking.
Current law for Voyeurism: A ‘voyeur’ is generally defined as “a person who derives sexual gratification from the covert observation of others as they undress or engage in sexual activities.” This includes observing, capturing or distributing images of another person without their consent or knowledge. With advancement in technology, cameras etc. may be placed in public places like changing rooms, where individuals generally expect a reasonable degree of privacy. Voyeurism blatantly defies this reasonable expectation of individuals infringing privacy and personal dignity.
Draft provision for Sexual Voyeurism: The Act will add Section 345D to the IPC, as follows — ‘Whoever watches, or captures the image of, a woman engaging in a private act in circumstances where she would usually have the expectation of not being observed either by the perpetrator or by any other person at the behest of the perpetrator shall be punished on first conviction with imprisonment of either description for a term which shall not be less than one year, but which may extend to three years, and shall also be liable to fine, and be punished on a second or subsequent conviction, with imprisonment of either description for a term which shall not be less than three years, but which may extend to seven years, and shall also be liable to fine.”
Explanation 1: For the purposes of this section, “private act” includes an act carried out in a place which, in the circumstances, would reasonably be expected to provide privacy, and where the victim’s genitals, buttocks or breasts are exposed or covered only in underwear; or the victim is using a lavatory; or the person is doing a sexual act that is not of a kind ordinarily done in public.
Explanation 2: ‘Where the victim consents to the capture of images or any act, but not to their dissemination to third persons and where such image or act is disseminated, such dissemination shall be considered an offence under this section.’
The provision seeks to protect victims of voyeurism, from being watched, or recorded, without their consent under circumstances where the victim could reasonably expect privacy. A reasonable expectation of privacy implies to both public or private places where the victim has a reasonable expectation that she is not being observed engaging in private acts such as disrobing or sexual acts. Similar provisions can be found in voyeurism laws across the world, and section 66E of the IT Act. It is particularly important because voyeurism also takes place in public spaces where there is generally an expectation that exposed body parts are not being watched.
What is being Amended: Including voyeurism as an offence in the IPC will close several loopholes in the voyeurism law and hopefully set precedence for the government to work better on protecting the privacy of its citizens. Prior to this draft provision, the act of voyeurism was punishable with imprisonment of up to three years or with fine not exceeding two lakh rupees, or with both. However, this did not cover instances where a person observes another without their consent to be observed. Voyeurism is a criminal offence in Australia, U.S.A, Canada, and U.K, which criminalise either the capturing of images, or observation of individuals, or both.
Current law for Evidence of Consent: So far, in cases of rape or sexual assault and related crimes, the previous sexual experience and “promiscuous character” of the victim is also taken as evidence to determine the victim’s consent to the act. Even though widely censured by the highest court, this practice continues in the Indian courts. The examination of the victim’s sexual history in court is an unwarranted intrusion of privacy, public disclosure of her sexual life, especially in a conservative, patriarchal society like in India that stereotypes women.
Draft provision for Examination of Sexual History and Privacy: The amendment to Section 53A of the Indian Evidence Act in the Bill reads, “In a prosecution for an offence under section 354, section 354A, section 354B, section 354C, sub-section (1) or sub-section (2) of section 376, section 376A, section 376B, section 376C, section 376D or section 376E of the Indian Penal Code or for attempt to commit any such offence, where the question of consent is in issue, evidence of the character of the victim or of such person’s previous sexual experience with any person shall not be relevant on the issue of such consent or the quality of consent.”
A similar proviso is also added to Section 376 of the Indian Evidence Act. According to the above provision, in a trial for sexual assault or rape, the victim’s previous sexual experience or her ‘character’ would not be relevant evidence to determine the fact of the consent or the quality of the consent.
What is being Amended: With the new amendments, such evidence will not be permitted in a court of law, hence, it will act as a safeguards against defendants attempting to influence the court’s decision through disparaging the ‘character’ of the victim, and will protect the disclosure of intimate, personal details like previous sexual encounters of the victim.
A version of this post was published on Centre for Internet & Society, India website
The Centre for Internet and Society is a non-profit research organization that works on policy issues relating to freedom of expression, privacy, accessibility for persons with disabilities, access to knowledge and IPR reform, and openness (including open government, FOSS, open standards, etc.), and engages in academic research on digital natives and digital humanities.