Combating Physical and Cyber Stalking

In pursuance of our objective to conceptualize and draft policies and legislation on the issues of public importance, CFPS took upon itself to make contributions in the effort to address the menace of stalking in Delhi. Our proposal seeks to amend the anti-stalking law for Delhi by bringing a state amendment to the existing anti-stalking provisions under Section 354D of the Indian Penal Code (IPC). Our proposal overhauls the language of the penal provision by bringing in specificity in order to reduce lexical vagueness. Further, it aims to augment the inclusivity of the law by making it gender neutral. The proposed draft is also supplanted with well-defined terms so as to curtail misinterpretations and misuse of the provision. Lastly, the proposed draft also makes the offence non-bailable and specifically addresses the growing threat of cyberstalking.

How CFPS’s Proposed Stalking Law is different from the Present Law (Section 354D)

S. No. Present Law (Section 354D) & other proposed amendments CFPS’s Proposed Draft
1. It is not gender neutral; only punishes a man for stalking a woman. It is gender neutral.
2. It adopts the General Prohibition Model i.e. it uses generic language to broadly define the boundaries of the crime. It adopts the List Model i.e. it has a list of acts (both, physical and cyber) that are construed to come under stalking. However, the provision is not exhaustive and has a residuary provision.
3. Does not define the term “repeatedly”; it makes the section vague as courts tend to define the term inconsistently. The term “repeated course of conduct” is specifically defined in Explanation I.
4. Restricts the ambit of stalking to instances where the victim was able to demonstrate a “clear indication of disinterest” towards the offender. Defines the term “unconsented contact” to also include scenarios where the victim was either not given an opportunity to express disinterest or was criminally intimidated by the offender.
5. To cover physical stalking, it only uses the terms “follows” and “contacts” in a broad sense. To cover physical stalking, it lists different acts of physical stalking, including:

i.     following the victim,

ii.   loitering, watching, approaching or entering the victim’s place of residence or work

iii. interfering in possession of property

iv. sending or delivering letters, packages, objects etc. to the victim

6. To cover cyberstalking, it only uses the term “monitor” in a broad sense. To cover cyberstalking, it lists different acts of cyberstalking, including:

i.      Communicating through telephone or sending electronic messages by any means to the victim

ii.    Tracing the victim’s use of internet, e-mail or any other electronic communication

iii.  Keeping the victim under surveillance

iv.  Making information about the victim available to others

In the Criminal Law (Amendment) Bill, 2017 tabled by Dr. Shashi Tharoor in the Lok Sabha, as well as, the Criminal Laws (Amendment) Bill, 2018 introduced by Mr. Hussain Dalwai – an attempt was made to bring “watching or spying” the victim, to “cause fear of violence or serious alarm or distress”, within the definition of stalking. The quoted terms were left undefined in these proposals.
7. It has no residuary provision to cover others acts which may not fall under the definition stated in the provision but may yet cause substantial emotional distress to the victim. It includes a residuary provision under paragraph (i) of sub-section (1) to cover any such act which may cause substantial emotional distress to the victim.  “Substantial Emotional Distress” has been defined under Explanation II.
8. It does not cover the act of instigating others to stalk the victim within the definition of the offence. It brings the act of instigating others to stalk the victim within the ambit of the offence via paragraph (j) of sub-section (1).
9. It does not impute criminal liability on those who, with the intention to screen the offender, fail to prevent the act of stalking or inform the police / nearest magistrate. It borrows from section 354E, inserted via Chhattisgarh’s state amendment to IPC, and imputes criminal liability on those who, with the intention to screen the offender, fail to prevent the act of stalking or inform the police / nearest magistrate.
10. It does not cover the harassment of family members, friends and close associates of the victim under the definition of the offence. It specifically covers the subjection of family members, friends and close associates to acts of stalking under sub-section (4). The term “family members” has been defined under Explanation V to include blood relatives and others closely connected to the victim.
11. Presently, the first offence of stalking is classified as a bailable offence as per Schedule I of the Code of Criminal Procedure, 1973 while the subsequent offences will be treated as non-bailable. In our report, CFPS too recommends amending Schedule I of the Code of Criminal Procedure, 1973 to make the first offence of stalking non-bailable.
The Criminal Law (Amendment) Bill, 2017 tabled by Dr. Shashi Tharoor in the Lok Sabha, as well as, the Criminal Laws (Amendment) Bill, 2018 introduced by Mr. Hussain Dalwai – both sought to make the first offence of stalking non-bailable.