VOYEURISM: THE SILHOUETTED CRIME IN INDIA
Today we live in a progressive world where things change every now and then as it is truly said that ‘Change is the law of the nature’ and it’s a matter of fact that one needs to accept the changes happening around him in order to be at power with others in this world, which is full of competition and struggle, and most importantly change is essential for the better functioning of the society and peaceful co-existence of the individuals living in a society as every single thing existing in this universe is a subject to change and it’s a bitter truth but one needs to remember that there’s nothing in this world that remains constant forever. However, contrary to the fact that ‘Change is the law of the nature’, it is not necessary that change is always positive or must yield positive results- the above narrative is an indication towards the changing nature of crimes around the globe. As we generally say that Law is dynamic in nature which implies that it doesn’t remain static or it changes with time, the similar thing is been noticed in case of crimes wherein the nature of the crime, including the ways to commit a crime and even modes of committing a particular crime are undergoing a constant change which is a matter of grave concern today.
I remember one of the dialogues from a Bollywood movie named ‘Chhapaak’ starring Deepika Padukone (based on the life of acid attack survivor Lakshmi Agarwal) which gained a lot a attention which stated that ‘Kitna Achha Hota Agar Acid Bikta hi Nahi’, fails to convince me as if not acid, but a mere sharp object like a pen or pencil is enough to distort a women’s face justifying the implication that there exists a constant change in the way crimes could be committed irrespective of the fact that men with an intention to distort a women’s face more often took the resort of acid to seek revenge from women for their personal grudges, provided for the reason that it was pretty much pocket friendly and was within the reach of many as it was sold at a much cheaper price and many a times sold by the drugstores without any proper, legal state affiliated licenses earlier in India however later The Criminal Law (Amendment) Act, 2013 had inserted Section 326A and Section 326B in the Indian Penal Code, 1860 thereby including special provisions for the acid attack survivors. The offenders found guilty under these sections were to be imprisonment for a minimum of ten years and could also be granted life imprisonment along with fine; inclusive of the medical expenses incurred by the victim.
Crimes such as domestic violence, abuse, sexual assault and rape are pretty much commonly committed crimes against women but apart from these mainstream crimes there are some crimes against women which are often ignored or unnoticed one such crime is that of Voyeurism, however both men and women can fall prey to Voyeurism. Voyeurism can be best defined as obtaining pleasure or interest in observing individuals mainly while they undress, are naked or engaged in sexual activities and the interest usually lies in the act of watching rather than the person being watched. The person deriving interest and pleasure out of such activities is commonly called a ‘Voyeur’ or also referred as ‘Peeping Tom’ in general terms. A key element of voyeurism is that the person being watched doesn’t know they’re being observed. The person is typically in a place where they have a reasonable expectation of privacy, such as their home or other private area and the most relevant example of common day to day Voyeurism is Pornography and even the common surveillance cameras installed in public places such as parks, malls, public washrooms etc for the safety and security of the general masses could be used by Voyeurs to commit Voyeurism. According to the latest reports of NCRB there has been a remarkable increase in the cases of voyeurism amounting to 1,393 cases in 2018 whereas 1,090 such cases were reported back in 2017, and 932 back in 2016 with Maharashtra topping the lists alone with 252 cases in the state, followed by Madhya Pradesh with 163 and Kerala with 126 cases. Talking about the cities, it was again Mumbai that had recorded the maximum of 47 cases of Voyeurism, followed by Delhi with 31 cases. The above-mentioned statistics are shocking as an activity such as voyeurism is totally against an individual’s right to privacy
VOYEURISM V/S VOYEURISTIC DISORDER (A THIN LINE DIFFERENCE)
There is a very thin line difference that exists between both i.e.; Voyeurism and Voyeuristic disorder as both are completely two different concepts where Voyeurism can be described as obtaining pleasure or interest by means of observing someone while undressing, are naked or engaged in sexual activity wherein the interest of the Voyeur is inclined more towards observing such an activity rather than the person performing such activity as it solely refers to an interest in watching others and there are maximum chances that it might never progress beyond a fantasy. For example, someone might masturbate while viewing any type of sexual content. Meanwhile, on the other hand in some cases voyeurism can become a paraphilic disorder known as voyeuristic disorder. Paraphilic disorders are defined as having sexual fantasies or urges that most frequently result in causing affliction in an individual. They may involve inanimate objects, children, or un-consenting adults. Voyeurism, by its nature, implies that one party doesn’t consent (the person who is been observed) to the activity. However, the feeling of arousal while watching someone undress, or engaged in sexual activities from afar refers to an individual’s voyeuristic interests and there is nothing to feel ashamed or uncomfortable about the same as studies show that sexual motivation is the most dominant and leading driving force in human beings and is considered, to be normal behavior but contrary to this casual Voyeurism can become problematic when an individual take steps that violate a person’s right to consent or their expectation of privacy that’s when it actually amounts to a serious sex offence. The situation can be of extreme concern if an individual depicts such a behavior wherein, he violates a person’s expectation of privacy in their home, in a locker room or in a similar area, watching a person engaged in sexual activity without their consent, or begin filming or photographing another person without their permission, entering an area illegally in order to watch people feel frustrated or stressed when can’t engage in these behaviors, constantly experiencing feelings of guilt after engaging in these behaviors on a frequent basis is what leads to Voyeuristic Disorder in an individual.
VOYEURISM AS A CRIME PUNISHABLE UNDER SECTION 354C OF IPC
Voyeurism can be coined as a biggest attack on an individual’s personal space or right to privacy and is held violative of both Section 354C of IPC and Article 21 of the Indian Constitution though not explicitly mentioned in the Constitution, it forms an inherent part of some other provisions of the Constitution of India. ‘Right to Privacy’ is one of the essential Fundamental Rights granted to the Indian citizens by its supreme law of the land that is its Constitution. Though right to privacy is not mentioned separately as an individual article, it comes within the purview of Article 21 which talks about right to life or to be more precise bestows upon its citizens to lead their lives with utmost dignity, and is a much broader concept than mere existing of individual’s as the term “life” includes all aspects of life that make a person’s life meaningful, complete as well as worth living including a person’s right to privacy which is equally essential for the human survival which according to my opinion the expression ‘privacy’ does exists in our society but just somehow for the sake of existing as privacy isn’t something that is enjoyed by individual’s in its true sense today as the true execution of “Right to Privacy” and that too also at its best is still to be seen when talking about a society like India because an individual’s right to his/her personal space and privacy should be protected at any cost in, this context Voyeurism poses biggest threat on an individual’s right to privacy.
Section 354C of the Indian Penal Code defines Voyeurism as-Any man who 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 or disseminates such image 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. Though voyeurism doesn't harm any person physically as such but creates a mental trauma and pressure over the person. It is the grave violation of Right to privacy which is a facet of Right to Life according to article 21 and violation of equality before law and equal protection of law according to article 14 of the Indian Constitution. The private acts includes when a woman is in toilet, or who is undressed, or who is involved in a sexual activity, etc. After the Nirbhaya gang rape case, Justice Verma Committee was established by the dint of which Criminal Law Amendment Bill, 2013 was brought into force. The Committee's report looks at privacy in tandem with other jurisdictions where the right to privacy is looked at as a right to personal development and autonomy offering a zone of interaction even in public spaces. The panel recognized the need to curb all forms of sexual offences and recommended-Voyeurism to be punished up to seven years in jail; stalking or attempts to contact a person repeatedly through any means by up to three years. Acid attacks would be punished by up to seven years if imprisonment; trafficking will be punished with RI for seven to ten years. Various sections of Indian Penal Code (IPC) were revised and amendments were made in the Code of Criminal Procedure (1973), the Indian Evidence Act (1872) and the Protection of Children from Sexual Offences Act (2012). Many new provisions were made and new offences such as acid attack, sexual harassment, voyeurism, stalking have been incorporated into the Indian Penal Code. At present we are living in a digital era where people are closely connected through the internet and mobile lines. Especially due to the rise of smart phones and cheap internet prices a large section of people, are able to access the internet easily. Many digital revolutions also took place such as Jio's data revolution which made internet accessible to everyone.
Due to these rapid changes IT (Information and Technology) ACT, 2000 came into force which covers various cyber- crimes. The electronic voyeurism is also covered under this act. The separate section has been introduced in the IT Act, 2000 by Information Technology Amendment Act, 2008 by the influence of Section 1801 of Video Voyeurism Prevention Act of 2004 a Federal Law of USA dealing with the felonious act of video voyeurism. Also, Section 66E of IT Act, 2008 recognizes the right to protect the human body from unreasonable and obscene intrusion by video technology and adequately protects the individual privacy from the crime of video voyeurism which destroys personal privacy and dignity by secretly videotaping or photographing unsuspecting individuals. Sending obscene material (photos, pictures, films, messages) to a woman through social media is an act of sexual harassment under the IPC. Showing or sending a woman pornographic or sexually explicit material without her consent is a form of sexual harassment under Section 354A of the IPC. The perpetrator of such a crime can be punished with 3 years of imprisonment, or a fine, or both. It is a crime if the woman gave consent for the pictures to be taken but did not give consent for these private pictures to be shared online. The punishment for this offence can range from 3 to 7 years and a fine. Section 67A of the IT Act states that if material which is published online is sexually explicit, the person can be imprisoned for 5 years and be liable to pay a fine of up to ten lakhs.
IMPORTANCE OF LANDMARK JUDGEMENTS IN THE DEVELOPMENT OF LAWS FOR PROTECTION OF WOMEN
Ritu Kohli Case is of utmost importance as it was supposedly the first case of cyberbullying that was reported in India where the case was reported by Ritu Kohli, the victim against the illegal act of Manish Kathuria who stalked her on the internet via a social media chatting website often misusing her name to invite individuals to chat with him using obscene and offensive language for them as a result of which the victim started receiving calls from different states including foreign countries, talking to her in a salacious manner. Her case was filed by the Delhi police under section 509 of IPC for insulting a women’s modesty by means of words and actions and also for misusing her identity for own selfish needs. This law brought an Amendment to the Information Technology Act under section 66E because section 509 of IPC could not deal with such cases.
Vishaka & Ors. Vs State of Rajasthan is a milestone judgement given by the honorable Supreme Court of India that deals with the sexual harassment faced by women in workplace where the court had formulated the famous vishaka guidelines where it was made mandatory for all the private and public sectors to establish mechanisms to redress sexual harassment complaints when Bhanwari Devi a social worker from Bhateri in Rajasthan was brutally raped for stopping a child marriage which is held illegal and a chargeable offence under The Prohibition of Child Marriage Act 2006 and led to the enactment of historical POSH Act (Prevention, Prohibition and Redressal) against the Sexual Harassment of Women at workplace Act, 2013 marked as India’s first law against prevention, prohibition, and redressal of sexual harassment for women at the workplace.
The very recent case of M.J Akbar Vs. Priya Ramani is a perfect example of how men enjoying a privileged class, status and mostly a dominant position by means of money, muscle power and highly designated positions when accused of sexual harassment or assault are able to shut the victim’s mouth by taking cognizance of section 499 of IPC i.e the “Criminal Defamation” is the most common defense mechanism used by assaulters against the women who had dared to speak about their morally and ethically wrong deeds. It was held in this case that sexually harassing someone not only by means of touching somebody inappropriately but also by means of using unpleasant or discomforting words making a woman uncomfortable and conscious about her surroundings and the people present around her is a biggest attack on a women’s dignity and modesty and the court was also of the view in this case that the women have a right to speak about their experiences on any platform, even decades later, as in maximum of the cases related to sexual harassment, the women are always scared to disclose such things, so keeping in mind the societal factors there should be no such time limitation or restriction where a women could speak about the wrong done to her held a High Court in Delhi.
The privacy and keeping their personal information private are also an essential part of the security of people. The criminalization of stalking, acid attacks and voyeurism give some confidence to the citizens that their privacy rights are being safeguarded. Right to Privacy is the very basic right and is the facet of Right to life which is a fundamental right of every citizen. Some people get habituated for the offence (paraphilia) of voyeurism knowing that it's not correct. Such people need to be diagnosed under the medical supervision. There is a need to come up with more strict and stringent laws so that any person intending to commit such crimes loose courage to perform such an act. Introduction of Voyeurism as offence in the Indian Penal code, 1860 under section 354C and certain changes in information technology can bolster the women safety in our society.
Voyeurism- Legal Service India; https://www.legalserviceindia.com/legal/article-3010-voyeurism.html
What is Voyeurism? Definition, Voyeuristic Disorder, Consent; https://www.healthline.com/health/what-is-voyeurism
Sexual Harassment Prevention Laws in India- iPleaders Blog; https://blog.ipleaders.in/sexual-harassment-prevention-laws-india/
All you need to know about the POSH Act, 2013; https://in.style.yahoo.com/all-you-need-to-know-about-the-posh-act-2013-030011356.html?guccounter=1&guce_referrer=aHR0cHM6Ly93d3cuZ29vZ2xlLmNvbS8&guce_referrer_sig=AQAAAKIFDNtu2o5FZDX9xhPqrmnWrTEHUtIjbhjBNiFrCUNC4Gko16Q_um11hB2Khsh-NtMxineG0dQFmMZ8MSupIEqmtJVxIL1C7DYYR75IN3kfTMm1FY0p7gdXyrZ-rjnP0SD-q74oH9yYg6
Landmark Judgements on Offences against women under the IPC, 1860; https://blog.ipleaders.in/landmark-judgments-on-offences-against-women-under-indian-penal-code-1860/
Privacy as a Fundamental Right; https://lawtimesjournal.in/privacy-as-a-fundamental-right/
Voyeurism and stalking highest in Mumbai, Delhi says data- mint; https://www.livemint.com/news/india/voyeurism-and-stalking-highest-in-mumbai-delhi-says-data-11578655314549.html
Second Year (3rd semester), BA LLB (H)
Xavier Law School
XIM University, Bhubaneswar