2.7 Cyberstalking

Many cases of cyberstalking are centred around the aspect of intrusion into the lives of victims, be it through monitoring online activities, repeated online interactions, or through violence perpetrated in cyberspace. Recognizing how the constitutionally guaranteed right to privacy under Article 21 is violated is important in such cases. Further, cyberstalking deserves as much importance as cases of offline stalking, and, for effective prosecution, it is crucial to understand the spatial fluidity of the crime, which can manifest online and offline simultaneously.

As mentioned above, Section 354D of IPC punishes the act of stalking a woman, and specifically cyberstalking. Exceptions to the Section include following/contacting/monitoring a woman by an authorized officer for the detection or prevention of a crime, in compliance with a law, or for other reasonable and justified acts under given circumstances. It is important to note that Section 354D emphasizes two points: the repeated nature of the act and disinterest on the part of the woman. These factors should guide courts in determining whether an accused’s online activities amount to stalking.

The IT Act, on the other hand, does not consider cyberstalking as a standalone offense. Instead, it addresses the consequences of online stalking. For example, Section 66D of the IT Act terms a scenario in which multiple accounts are created to stalk a person online as an offense of impersonation. In this case, a person assumes a fake identity with an intention to deceive another, or cheats by using a computer or a communication device. Section 66C of the IT Act may be invoked when a person uses, for instance, passwords to a woman’s social media accounts to monitor her online activities.

Sometimes the act of stalking by repeatedly contacting a woman may be accompanied by demands for sexual favors, passing sexually colored remarks, and sending obscene or pornographic images or videos. This constitutes sexual harassment, and the corresponding provisions may be invoked along with Section 354D of the IPC. Further, if stalking is accompanied by sharing of obscene or pornographic images, the perpetrator can also be charged under Section 67A of the IT Act, which penalizes the transmission of sexually explicit images.

2.7.4.1 Kalandi Charan Lenka v. State of Orissa (2017)⁵ Kalandi Charan Lenka v. State of Orissa, BLAPL No.7596 of 2016, judgment dated 16 january 2017, Odisha High Court.

In this case, the accused had proposed to marry the victim, and when the marriage could not be finalized, had sent obscene letters and mail, and published pamphlets denigrating the character of the victim. He also created a fake Facebook account in her name and a morphed nude image of her was sent as a public post through that account. The accused intimidated the victim so as to compel her to surrender to the design of the petitioner. When the incessant sexual harassment forced the woman to change her place of study, the accused followed, and continued to harass her both online and offline.

The Cyber Cell of the Crime Branch investigated the case, and the Odisha High Court held that the accused was prima facie liable for sexual harassment under Section 354A of the IPC, online stalking under Section 354D, identity theft under Section 66C of the IT Act, impersonation under Section 66D, and transmitting obscene and sexually explicit material online under Section 67 and 67A. Noting that the charges brought against him were bailable, the court released the accused on bail, but not before observing that the offense of stalking affects the rights of women, and especially the right to dignity.

Unlike this case, which directly recognized cyberstalking, courts often do not pay heed to the specific crime even though the facts of the case point in that direction. An example is discussed below.

2.7.4.2 Mrs. Rehana Begum v. The Inspector Of Police (2021)⁶Mrs. Rehana Begum v. The Inspector Of Police, Crl.O.P.No.6642 of 2021, judgment dated 13 June 2022, Madras High Court.

In this case, the court granted bail to a person accused of cruelty towards his wife, with the stipulation that he should refrain from contacting her. Once released, however, the accused contacted the petitioner via WhatsApp, harassed her by sending abusive messages and private photographs of her, and threatened to publish the said photographs on a website. After the woman lodged a complaint, the police registered a case under Sections 66E, 67, and 67A of the IT Act, Sections 354A, 354C, and 509 of the IPC, and Section 6 of the Indecent Representation of Women (Prohibition) Act, 1986. This time, the court rejected the bail plea, but failed to acknowledge that the accused’s act of repeatedly contacting the victim despite clear disinterest on her part amounted to cyberstalking, and should therefore, have invited charges under Section 354D of the IPC as well.

The state of California in the US was the first jurisdiction to enact a specific criminal provision, Section 646.9 of the California Penal Code, to deal with stalking.⁷Van der Aa, S. (2017). New Trends in the Criminalization of Stalking in the EU Member States. Eur J Crim Policy Res, (2018) 24:315–333. https://link.springer.com/content/pdf/10.1007/s10610-017-9359-9.pdf. The Section makes it punishable to “willfully, maliciously, and repeatedly follows or willfully and maliciously harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family”.⁸The California Penal Code, Part 1. https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=646.9&lawCode=PEN Like California, many jurisdictions treat stalking as a form of harassment and cover it under anti-harassment laws. The UK, for instance, defines stalking to include the act of following; contacting or attempting to contact any person by any means; monitoring a person’s use of the internet, email, or any other form of electronic communication; or publishing any statement or material relating to a person or as purporting to originate from such person, if such acts amount to harassment of the targeted person.⁹ Protection from Harassment Act, 1997, Section 2A. (United Kingdom). Here, it can be seen that the Section, like the Indian law, expressly makes the act of stalking via electronic communication punishable.

On the other hand, countries such as Singapore do not have specific provisions to deal with cyberstalking, but include it within the ambit of laws on unlawful stalking. For instance, Section 7 of Singapore’s Protection from Harassment Act, 2014, defines unlawful stalking to include acts such as making any communication or attempting to make any communication with the victim or a related person, keeping the victim or related person under surveillance, etc., with the intention or with the knowledge that it will cause harassment, alarm, or distress to the victim. Even though this Section does not expressly refer to online forms of communication, the language is broad enough to cover all forms of communication, and hence stalking through online means.

Though these laws are gender-neutral, their emphasis on addressing the harassment, intimidation, or distress arising from stalking makes them suitable to deal with the gendered impact of cyberstalking.