Author: Pooja Yadav, pursuing B.B.A LL.B (Hons.) from Narsee Monjee Institute Of Management and Science, School of Law, Indore Campus.
WORKING HYPOTHESIS
Stalking is a criminal offence under Indian Penal Code.
Stalking causes mental or physical harm to the victims.
Victims of Stalking commits Suicide because of fear, pressure and threat.
Any working women, housewives, school girl and college student can be the victim of stalking.
Sometime men are also the victim of stalking.
Indian movies portraying and promoting stalking directly or indirectly.
ABSTRACT
In India Stalking was added in criminal law after 2013 Criminal Amendment Act which was passed by Justice Verma Committee. Stalking was added in criminal law because of increase in number of crimes against modesty of women in society. Stalking is not a gender biased crime but in India most commonly stalking is held against women. In India anyone can be stalked at anytime. Before the amendment the term stalking was not directly included in the Penal Code of India. It was just included under harassment like voyeurism and sexual harassment against women, under section 354 and 509. Because of increasing number of cases, it became very necessary to make a separate law for stalking. Before the amendment it was very difficult to punish the offender. And they are moving freely from the court without any fear.
Due to stalking many of the girls commits suicide, suffers mental pressure or some suffers physical harassment. Some stalkers are so obsessive and after listening no from girl they start torturing them. Torture may be physical or mental. Stalking is often a precursor to other more violent crime.[1] Other more violent crimes like murder, rape, sexual harassment, acid attack etc.
Indian movies play a big role to promote stalking. They were portraying stalking as a cool act. They are showing that stalking is not a crime. They are showing that by following a girl, singing song for a girl, sending present to a girl and protecting a girl from stranger will somehow attract the girls attention towards them. Not all the viewers but some of them are thinking that yes what is all shown in the movie is good and cool and they start doing that all in their real life. But in realty the stalkers open the door of jail for them by doing all that. Stalking is most commonly done by young and teenager peoples. Indian movies are somewhere providing the idea to the people how to stalk anyone. I is not like that movies are only influencing bad things. Movies are not only teaching the bad things to the people I think somewhere it is depending on the peoples mentality, what they are thinking and taking from the movie.
KEY WORDS: Stalking, Victims, Threat, Fear, physical torture, suicide, mental pressure, harassment, obsessive, nonconsensual communication, follow, implied threat, Indian Movie, Indian Penal Code, Stalkers.
INTRODUCTION
Stalking is a criminal offence defined under Indian Penal Code.[2] It is defined by statutes and by court decisions interpreting those statutes.[3] Stalking puts a mental pressure or threat on the victims. The danger and terror a victim of stalking feels has no way to resolve it. In most of the reported cases there is inclusion of male stalkers and female victims. Stalking is an important policy issue for the criminal justice system, for advocates concerned about violence against women and for agencies providing services to victims of crime.[4] Stalking should not be a gender biased crime. But in our Country Stalking is mainly held against women. Stalking is communication crime[5] like stalker is somehow conveying this message to the victim that he is trying to get her consent and in this way it was communicated. An unwanted and/or repeated watching or following or caring to an another person by an individual or group of people is called stalking. Many of the times someone get stalked even without having knowledge that she / he is getting stalked by someone. In our society until a legal action is not taken against someone, it is not accepted as a crime. Because sometimes peoples are not aware of that crime and not having knowledge that there are some laws regarding that crime.
In 1860 Indian Penal Code became a colonial law. At that time Stalking is not mentioned in Indian Penal Code as an offence. At that time Section 354 and section 509 only provides the protection to women. Section 354 covers the offence related to sexual harassment and section 509 covers the offences related to using words or gestures to insult a woman's modesty. If anyone is assaulting a women believing that it will offend the modesty of women is liable under section 354 to be prosecuted by law. There are three tests which will proof that the act is illegal or not.
1). "The act must be against a women,"
2). "The perpetrator must have used excessive force, and"
3). "Their modesty should be offended."
There are a lot of movies where stalking is shown very often. Indian Movies are portraying stalking as a cool and good act. They are showing that following a girl, commenting on a girl, singing a song for a girl is a romanticizing act and not putting any stress on girls. They are showing that this is a good way to get the consent of a girl and girls do not have any problem from that. Indian Movies are showing stalker as a hero of the film and he is following heroine singing some songs for her and after sometime he will get the consent of girl. Indian Movies are conveying that, stalking does not put any mental pressure or physical injury to girl. But in reality it is not true, many of the victims of stalking are facing mental pressure and physical injury. So many victims are there who are not able to bear that mental pressure and commits suicide. Some commits suicide because of fear of society, family and also because of some threat. The victim of stalking are not only young girls but also the married women, working women and school and college going girls. There are a lot of movies since 19's in which stalking scenes are shown and now also it is in the tradition of Indian Movies to show stalking. Tere Naam, Anjam, Darr, Badrinath Ki Dulhaniya, Toilet Ek Prem Katha and Deewana Mujhsa Nahin etc. These are some movies in which scenes of stalking is shown and also the stalkingful songs are also shown where hero is singing song and following the girl at everywhere knowingly that she is not interested, still he is troubling her and at last of the song or at last of the movie the heroine finally consents the hero. And after watching all these stuff people are thinking that it is true and tries this all thing in their real life and faces a lot of troubles and causing injury to others.
In this research I am just trying to show that how from 19's to till now Indian movies are showing Stalking. In many of the movies, stories are supporting the crime of Stalking and in some of the movies they are showing that how stalking is affecting the victims and in some movies that how Stalking leads to other heinous crimes. Various movies shows that how "stalking leads to a positive outcome."
In 1994 Anjaam movie was released in which Shahrukh Khan was playing the role of a psycho and stalker. The whole movie is filled with stalking, and murder. Shahrukh Khan was named as Vijay Agnihotri and Madhuri Dixit was named as Shivani Chopra. Here Shivani is the victim of stalking. This movie shows that how a girl or a women get affected by their stalkers badly in their life. In this movie Vijay is stalking Shivani but she is not aware that someone is stalking her. In this movie Vijay reaches Shivani's home to sign her as model but she denied. For some meeting Vijay had booked tickets of flight for London but then at airport he saw Shivani, she is going on duty for Air India Dubai, so now to follow Shivani Vijay asked receptionist to change the ticket from London to Dubai and he bored the dubai flight then in the flight he called Shivani and asked to bring a drink for him she said Ok. Immediately he again press the bell and called Shivani she turned and he said that or commented that "drink should have to be more addictive than her eyes and more spicy than her tongue."
When the flight reached Dubai every passenger leaved the flight Vijay also leaved. But after hearing that the same flight is backing for Mumbai Vijay again bored the flight for Shivani. After watching him again Shivani get surprised. In the flight Vijay again irritated Shivani. When flight land on Mumbai Vijay started singing song for Shivani at front of everyone but she ignored and went from there.
This movie shows that how Vijay stalks Shivani after her marriage also. He is following her at every place where she is going with her husband and family. At one point Vijay asked Shivani to marry with him but she denied and shouted on him and said that she is a married women. Then to marry her with a malice intention Vijay murdered Shivani's husband in hospital.
This movie shows that how a stalker from the normal stalking stage comes up to the stage of heinous crimes. How they become obsessive towards anything.
In 2003 movie Tere Naam was released in this movie there are some scenes which are related to stalking here Salman Khan is the hero and acting as a stalker. In this movie Salman Khan is playing the role of Radhe Mohan and Bhumika Chawla is playing the role of simple girl Nirjara. Here in this movie Radhe Mohan Proposes Nirjara to marry after meeting and talking to her 3 to 5 times. Radhe Mohan just make a perception in his mind that she is also loving to him and ready to marry because Nirjara did not replied anything in fear in the college. He also blackmailed Nirjara's pheonsay that he should not move or talk to Nirjara because he is going to marry her. Next day Radhe catches the train and waiting for the Nirjara because he knows that she is travelling from train to reach the college. Nirjara catches the train and she is not knowing that Radhe is following her, waiting for her in the train. She entered the train and find a sit, and she saw at the front of her Radhe was there. In the train Radhe started talking to her like now we are going to marry don't scare with the peoples think about ourself and tried to give present to her and said that it will look beautiful on her feet, after listening all this rubbish she got scared but then she denied because she is not liking that all. She requested that please stop talking to me like this because she is not interested in that all and somewhere all this act is defaming her she is feeling fear of reputation but still Radhe keep on convincing her at last she shouted and went from there. After sometime Radhe again followed her and tried to stop her in the way and tried to talk her and convince her, she again shouted and moved on her way where she is going. Now Radhe kidnapped her this time and started expressing his feelings and tried to convince her Nirjara tried to ran but she did not succeeded. After this all she got scared and cried than Radhe tried to beat her also but he stopped. Radhe said that he wants to keep her happy and he is not a bad person, he will care her like a queen and then after all it is a movie at the last of all these heroine Bhumika Chawla that is Nirjara consented him to marry.
In 2013 Raanjhanaa movie was released in this movie Dhanush is playing the act of stalker named Kundan Shankar and Sonam Kapoor is playing the role of a girl Zoya haider. Kundan is stalking Zoya since her school time. But the movie is showing the situation of stalking look like romance[6] and that's why the people watching this movie also think that following a girl and asking her name again and again is not a crime it's just a little thing. This movie is conveying that Kundan's love is a dedicated love towards Zoya. They are not addressing that how much problematic and real repercussions it has on audiences[7].
Movie shows that how to get the consent and attention of Zoya, Kundan coerces her. He said to her to confess that "she also loves him otherwise he will cut his wrist." Sometime it happens that in reality peoples applying this way to get the consent of a girl, to coerce a girl or in want of doing something filmy and to get the attention of a girl.
In this movie Zoya called him as "jahil" still he keep on following her. The word jahil shows that how much she get irritated or she suffered the nonsense. If any person is in too then he uses this type of words and it also shows that she is nowhere fell in love with him. But it is a trend in our Indian movies that stalking leads to positive outcome[8]. Movie shows that instead of trauma which Zoya faced the story at the end is in the favour of Kundan.
All the above movies shows that how Indian movie are portraying stalking. In first movie stalking leads to murder of victim's husband. In second movie how after getting tortured also victim consented for marriage. In third movie it shows that how to coerce a girl to get her attention and how to force a girl to confess. In Indian society people thinks and it is their mentality that whatever is shown in the television is something good and true because they are only showing what is really happening in the life of peoples or in the world. If we took an example of a child like he is watching his or her favorite cartoon and in that cartoon the lead cartoon is beating an enemy after eating sweats. So the child also thinks that it is true, if I eat beat someone after eating sweats then no one can defeat me. So with this example we can interpret that how a cartoon influences children mind.
In the same way the adults also get influenced after watching the movie some felt that whatever is show in movie was bad and some felt it was good. So here logical thinking is different as compared to child but it is true that peoples get influenced by movies. And it depends on person or on their thinking that what they interpret from the movie. But most probably people thinks the same way what movies are conveying.
A. General Concept of Stalking
In General Stalking is defined as "a course of conduct directed at a specific person that involves repeated visual or physical proximity, nonconsensual communication, or verbal, written, or implied threats, or a combination thereof, that would cause a reasonable person fear."[9] Without the consent of victim, stalker's keep on sending unwanted items and presents and trying to get the consent of victim. They are trying to damage or threaten the victim's property, slander the victim's character, or harassing the victim via the internet by posting personal information or spreading rumors about the victim.[10] It is a type of behavior of stalker's.
Stalking creates a threat and fear in the mind of victims. Threat may be either explicit or implicit. Stalker's commit offence of stalking with the people's whom they know or with whom they have relationship. Stalking can be done either through electronic media or without electronic media. On regular basis many women in India get stalked, she can be a working women, a college student or a housewife.
B. Definition of Stalking under IPC
Stalking is defined under Section 354D of Indian Penal Code
[11]354-D. Stalking - (1) Any man who -
(i) 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[12]
(ii) monitors the use by a woman of the internet, email or any other form of electronic communication,[13]
commits the offence of stalking[14]
If a person commits the offence of stalking shall be punished with imprisonment and fine. On first conviction criminal shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine[15]
If a person commits the offence of stalking second time or again he shall be punished with imprisonment of either description for a term which may extend to five years and shall also be liable for fine, further it is provided[16]
C. How Indian Movies are portraying Stalking
Indian Movies are somewhere promoting stalkers to commit the crime of Stalking, because they are showing some scenes or songs where hero is acting as a stalker and trying to get the consent of heroine, knowingly that she is not interested in him but still he is trying, by sending presents, giving flowers, continuously watching her and following her at school, market, till her home etc. And after sometime he get the consent of heroine and that person who is acting as a stalker now became hero and they are enjoying their life. In this way Indian movies are conveying this message to all the audience.
By watching all these stuffs in the cinema our young generation get distracted from the good path. They are thinking that it is cool and girls have no problem with these. If the famous hero is doing that it means it is good and we can do this. It is no crime at all. In this way it Indian movies are hampering the thinking of young generation and not only the young generation other generations too get promoted. Some stalkers who are obsessive and not ready to hear no from girl or women commits heinous crime. Stalkers obviously spoiling their life as well the victim's life.
They are not showing the reality that how stalking puts a mental pressure on a women or girl, how they are feeling threat or under threat, how some girls are facing the physical injury as well by the stalkers. In reality if a girl is not interested in their stalker than it is not possible that by sending presents and romanticizing her stalker will get the consent.
In Indian movies stalking is shown as "cool" and good thing. They are portraying in a way that stalking is not at all crime and due to this a lot of girls are suffering a lot. Some girls are committing suicide in fear of Stalker and lose their precious life.
Following are some movies in which stalking is shown:
1). Badrinath Ki Dulhaniya
2). Toilet : Ek Prem Katha
3). Deewana Mujhsa Nahin
4). Rehna Hai Tere Dil Mein
5). Tere Naam
6). Anjaam
7). Darr
And so many other movies in which stalking scenes are shown. Movies are not directly conveying that we are showing stalking but indirectly this massage is being conveyed to peoples.
D. Impact of Stalking
Impact of stalking on victim is I think depend on victim's mental strongness or weakness may be some victims are mentally so weak and not able to share all the things to anyone or fight for their safety. And may be some victims are mentally so strong, they are able to fight for themselves. Mostly it is severe and psychologically traumatic for many victims who are emotionally weak.[17] There are so many victims who are suffering from mental health disorders and they feel unsafe, pressurized, out of control, and most of the time they may experience a loss of trust, loss of long term emotions from closed ones and it leads to uneasiness, bipolar illness etc.[18] All this habits also result in all time anger and pressure.[19] Sometimes victims change their jobs, change their residence location, change their telephone numbers to protect themselves from stalker. Sometimes victim also carrying weapons or firearms to protect themselves.[20]
In youth and in teenagers the stalking and harassing is mainly usual in India. It is the influence or inspiration from films, series and movies as they are showing that following a girl or boy, making comments and showing love and care or sending presents is a heroic thing.
E. Stalking In India
There was no direct insertion of the term stalking in penal law of India before the amendment in criminal laws. Before the amendment stalking was just covered under the category of harassment such as voyeurism and sexual harassment against women. And it was covered under section 354 and section 509 of Indian Penal Code for using words or gestures to insult a women's modesty.[21] In lots of cases the stalker or criminals moves freely without any fear from the court. It is hard to proof the certain necessary conditions to constitute a crime.[22] Stalkers moves freely because of the imperfections in the essentials of section 354 and section 509 Indian Penal Code.[23] Therefore it was became need to make separate law for stalking in India.
F. Amendment In Stalking
Amendment in Stalking law is done after the Delhi gang rape case i.e. Nirbhaya Case. 16, December 2012 is the day when jyoti sing 23 year old girl physiotherapy intern was raped, tortured and beaten by six men in the bus and her friend was also being beaten by them. After this case most concrete steps was taken by the Indian Government. To curb the violence against women Criminal Law Amendment Act 2013 has been one of the most concrete steps taken by the Indian Government. Criminal Law was amended as well as new sections are also inserted in the Indian Penal Code with regard to various sexual offences.[24] After this amendment a separate section i.e. section 354D is made in Indian Penal Code to cover the Stalking cases. Under section 354 D punishment is also specified by law-makers on first conviction criminal is punished with imprisonment of three years and also liable to fine. If someone is committing the offence of stalking again and again then he shall be punished with imprisonment of five years and also liable to fine.
G. Stalking : A Bailable Offence
In India Stalking is bailable offence when it is committed by someone for the first time.[25] When punishment is given for the first time for three years then accuse may get the bail from the court but if the crime is committed by someone for second time or again and again then accuse will not get the bail from court. Stalking is sometime became a first step for commission of other crimes like rape, murder, acid attack, kidnapping and etc.[26] If court will not allow bail to peoples on the first conviction then may be there is chances that some people will not commit the same crime again because of deterrence. But when the court grant the bail order to the accuse then the accuse move freely on the road and then to take revenge they commit other crimes as well like rape, acid attack and etc.
After the Delhi gang rape i.e. Nirbhaya Case the Justice Verma Committee suggested that to present formally stalking as a non-bailable offence on the first convction as well.[27] The UPA government also agreed with this bill of making, stalking as a non bailable offence for the first time. And the Parliamentary Standing Committee also agreed. But then because of some opposite parties argument and opposition the bill was not passed and stalking remain bailable offence on first conviction. "This is a massive Lacuna in stalking law."[28]
CONCLUSION
Stalking means following someone, watching someone, sending presents, and singing songs and commenting on someone knowingly that he/she is not interested. Stalking can be done by both boy and girl. But in our country stalking is mainly done against women. Any women can be stalked at any time, she can be a school going girl, college girl, working women or any housewife. Stalking is a communicated crime. At previous time stalking is not properly defined in any of the laws. It is only covered under section 354 and 509. Section 354 covers offences related to sexual harassment and section 509 covers offences related to using words or gestures to insult a women's modesty.
There is no any specific section available in Indian Penal Code which covers the crime related to stalking. After the Nirbhaya gang rape case government has taken a very concrete step to amend the criminal law. In India after the Criminal Amendment Act 2013 stalking was separately defined under section 354 D. The Criminal Amendment Act 2013 was passed by the Justice Verma Committee to stop the increasing cases of stalking and to secure the girl child and women of the country from stalking.
In India peoples are not considering anything as crime until the legislature make strict laws for that. There are so many victims who are not aware that how to file complaint for the crime like stalking. Common peoples are not knowing that there are any specified law for stalking is present or not. Many of the victims are not filing complaint or not lodging FIR because of threat and fear. Victims are fearing may be because of stalker's blackmailing, because of family reputation fear, society fear, mental fear etc. There are so many victims who are committing suicide in fear. So many victims are there who suffer with mental pressure and physical injury like acid attack and harassment etc. Because of the crime of stalking life of both accuse and victim gets damaged and both of them suffer. In this crime victims suffers a lot than accuse.
Indian Movies are portraying stalking in movies in a very cool way. There are a lot of movies in Tamil, Uttar Pradesh and Punjab and national movies in which stalking is shown very interestingly and often. People of the whole nation watch that movies and makes a type of perception in their mind may be some will get aware of that crime and not at all think to commit in life and some will think it as cool and that influences them to commit that crime further in life. In starting may be sometime they are also not aware that they are committing crime by stalking someone, they are troubling someone's life. There are so many peoples who will not try after stalking one time but there are some peoples also, who knows that he or she is not interested at all but then also they keep on stalking them because they are obsessive stalker. They are not at all ready to listen no they want to listen only, what they want and this thing provokes them to commit other heinous crime.
If Crime of Stalking is being done by someone for the first time then the accuse will get the bail in India. They do not have a sense of fear on first conviction. This is a loophole in the Law of stalking. Because there are chances that after getting bail from the court, accuse may commit some other crimes to take revenge from the victim. Other crimes like acid attack, rape, kidnapping, harassment and etc. If law does not grant bail to the criminals of Stalking on first conviction and strictly give punishment to them then there are chances that people will not commit the crime of stalking. It can create a kind of deterrence among peoples and stop them from committing the crime.
[1] Venderbilt.edu, (article on stalking law) [2] Prof. S.N. Misra, Indian Penal Code (21st ed. 2018) [3]A few states do not gives brief statutory definitions of what are titled "common law" crimes. It may include assault, battery, rape and murder. Before the Revolutionary War Common law crimes are inherited from the English common law that was in place in the 13 colonies. Stalking is must be defined by statute. It is not a common law crime. Stalking behavior was often distinguished as "psychological rape" before the enactment of stalking laws. [4]Institute for Law and Justice [5] blog.ipleaders.com [6] idiva.com [7] Ibid [8] Ibid [9]National Institute of Justice [10]Ibid [11] Prof. S.N. Misra, Indian Penal Code (21st ed. 2018) [12] Ibid [13] Ibid [14] Ibid [15] Ibid [16] Ibid [17] blog.ipleaders.in [18] Ibid [19] Ibid [20] Ibid [21] Ibid [22] Ibid [23] Ibid [24] manifestias.com [25] The Indian Express [26] Ibid [27] Ibid [28] Ibid