Open Access Research Article
ADDRESSING VOYEURISM IN INDIA: LEGAL IMPLICATIONS AND EFFECTIVENESS BY: D DONNA GADIEL
Published Paper
Article Details
ADDRESSING VOYEURISM IN
INDIA: LEGAL IMPLICATIONS AND EFFECTIVENESS
ABSTRACT
This paper examines the legal
framework surrounding voyeurism in India, with a focus on the Indian Penal
Code and related statutes. It delves into the provisions and penalties defined
in the law, analyzing their effectiveness and limitations. The paper highlights
the gender bias present in voyeurism laws and emphasizes the need for
gender-neutral legislation to protect all victims. Furthermore, it explores
the challenges associated with evidence collection, procedural aspects, and
the role of intermediaries in handling voyeuristic content. Drawing on a
comparative analysis of voyeurism laws in the United Kingdom, the United
States, and Russia, the study underscores the need for comprehensive measures
that address the changing dynamics of voyeuristic crimes in the digital era.
It emphasizes the importance of public awareness campaigns to educate
potential victims and perpetrators about the gravity of voyeuristic acts and
the legal consequences involved. This research calls for legislative reforms
that ensure comprehensive and gender-neutral laws, provide clearer
definitions, enhance evidentiary standards, and promote better support
mechanisms for victims of voyeurism.
KEYWORDS: Vouyeurism, United
Kingdom, United States, Russia, Comparative Study
INTRODUCTION:
1. PRESENT SCENARIO
Women have
long been victims of crimes such as rape, domestic violence, and sexual
assault. Indian legislation acknowledges women's rights and has various
provisions and laws that criminalize sexual offenses. These include provisions
in the Indian Penal Code, The Sexual Harassment of Women at Workplace
(Prevention, Prohibition, and Redressal) Act and Rules 2013[2],
Protection of Children from Sexual Offences Act 2012[3],
Tamil Nadu Prohibition of Eve-teasing Act 1998[4], and more.
However, with the advent of technology, new crimes against women have emerged
alongside these existing crimes like rape and dowry death. To address these
evolving challenges, the Indian law has continually aimed to be progressive,
introducing new offenses in The Criminal Law Amendment Act of 2013. It included
Voyeurism under section 354C[5] of the Indian
Penal Code, 1860. Voyeurism is a
criminal act where someone watches, captures, and publishes a woman in a
private setting without her knowledge. It can involve hidden cameras in places
like changing rooms, swimming pools, or spying through windows or keyholes and the
victims are often unaware of being watched. The person engaging in voyeurism is
commonly known as a "voyeur" or "Peeping Tom.".[6] Sex tapes and
the sale of pornographic film CDs on the internet highlight deep divisions
within Indian culture.
In Indian
voyeurism cases, the voyeur must watch, capture, and publish someone's private
acts. Unlike UK laws, the term "watching" is not clearly defined, which
frequently causes confusion. Publishing obscene information electronically is
punishable under the IT Act, but action is usually taken only when a complaint
is filed. Victims need to report the offense, but in most cases, the voyeur
observes without direct interaction or discreetly, leading to fewer reported
incidents. Section 354C criminalizes a man who watches or captures images of a
woman engaged in private activities without her knowledge. First-time offenders
can be imprisoned for one to three years and fined, while subsequent convictions
carry a prison term of three to seven years, along with a fine. The section
incorporates the principle of reasonable expectation of privacy, similar to the
United States. Section 66E of the Information Technology Act addresses the
capture, publishing, or transmission of images of a person's private area
without their consent, in a manner that violates their privacy. The offense is
punishable by imprisonment for up to three years or a fine of up to two lakh
rupees.
2. HISTORY OF VOYERISM LAW
Before
2013, Indian law lacked strong provisions to address the increasing number of
crimes against women, including rape, stalking, and acid attacks. The
high-profile gang rape case of Nirbhaya in December 2012 exposed the inadequacy
of the Indian legal system to effectively handle such heinous incidents and
bring perpetrators to justice. The Indian government faced severe criticism and
public outcry regarding the safety of women in the country. Consequently,
amendments were necessary to adapt Indian law to the current circumstances and
combat sexual offenses.
In
response, a committee chaired by former Chief Justice of India, J.S. Verma, was
formed. The committee presented its report on January 23, 2013, leading to the
passing of the Criminal Law (Amendment) Act of 2013[7].
This act introduced voyeurism as a criminal offense in India under Section 354C
of the Indian Penal Code, 1860, along with other legislative amendments. The
concept of voyeurism is rooted in the notion of a reasonable expectation of
privacy. The committee recognized that various sexual offenses such as
voyeurism, teasing, and stalking were treated as minor misdemeanours despite
their serious impact on women's fundamental rights as well as their sense of
self.
Additionally,
the Information Technology Act of 2000 was amended in 2008[8],
and it came into force on October 27, 2009. The amendment introduced the
concept of "electronic voyeurism" in India. This amendment drew
inspiration from Section 1801 of the Video Voyeurism Prevention Act of 2004[9],
a federal law in the United States. The objective was to strengthen the
legislation against voyeurism in light of technological advancements. With the
widespread use of smartphones and internet connectivity, there emerged a
serious threat to women's privacy and integrity, as they could be unknowingly
recorded through covert means. Perpetrators could easily evade liability since
they didn't need to be in close proximity to the victim while committing the
crime. The incorporation of Section 66-E in the IT Act aimed to protect
individuals' privacy in the context of technology, prohibiting the transmission
of obscene and sexually explicit content.
REVIEW OF LITERATURE
1.
UNITED KINGDOM:
Unlike
India, the United Kingdom does not have an explicit constitutional provision
for the right to privacy. However, the Human Rights Act of 1998[10]
indirectly recognizes the right to privacy by giving effect to Article 8 and
Article 10 of the European Convention on Human Rights (ECHR)[11], which
encompass privacy rights and freedom of expression. English legislation has
thus acknowledged the right to privacy and protection against intrusion.
In England, the Sexual Offences Act
of 2003[12]
not only penalizes the act of observing and recording private acts of others
but also the act of installing equipment or modifying structures with the
intent to facilitate such offenses. This aspect differs from India, where a
person cannot be punished solely for installing a camera unless there is
evidence of recorded images or videos. The English courts have held that
filming a sexual act without the consent of the female partner, even for
personal viewing, constitutes a crime. Instances have occurred where
individuals were sentenced to imprisonment, even in the absence of evidence that
the recorded material was leaked. Indian laws are not as stringent in this
regard.
However, similar to India, the UK
laws criminalize the act of watching, capturing, and publishing people's
private acts. Nevertheless, the UK legislation goes a step further by
specifying that observation or watching must be deliberate and not incidental,
thus avoiding punishment for accidental encounters. The Voyeurism (Offences)
Act of 2019[13] amended
the UK Sexual Offences Act of 2003 and established a dedicated provision for
voyeurism. This act, which came into force on April 12, 2019, outlines the
elements of voyeurism, including the creation or use of equipment to view
genitals, buttocks, or underwear beneath clothing where they would not normally
be visible. The act should be done for the purpose of sexual gratification or
to cause humiliation, alarm, or distress. The maximum penalty for this offense
is two years of imprisonment, and those convicted may be added to the Violent
and Sex Offender Register in more serious sexual cases.
UNITED STATES OF AMERICA:
In
contrast to other countries like Canada, New Zealand, and Australia, the United
States of America has established a distinctive system known as the Sex
Offenders Register, which sets it apart. Notably, this registry is accessible
to the general public, further enhancing its efficacy as a preventive measure
against heinous acts. The fear of being exposed and tarnishing one's reputation
acts as a strong deterrent for potential perpetrators. Moreover, individuals
with criminal records may face difficulties in securing employment due to the
consideration of their past actions during the hiring process.
Following
the footsteps of the United States, numerous jurisdictions have adopted similar
laws that prioritize the right to privacy in public places. An illustrative
case is R v Hamilton[14],
where the defendant argued that photographing women's skirts in a supermarket
was permissible since privacy rights did not extend to public spaces. However,
the court rejected this argument, recognizing the existence of a legal loophole
that could potentially legitimize acts of voyeurism in public settings.
Consequently, legislation has been amended in various regions, such as
California, to encompass clandestine non-consensual filming "under or
through" clothing in areas where reasonable privacy is expected. By
including this provision, the intention behind the law becomes clear, i.e., to
criminalize voyeuristic behaviors in both public and private domains.
(i) Video Voyeurism Prevention Act of 2004
The Public
Law, enacted on December 23, 2004, brings changes to the Federal criminal code,
making it illegal to intentionally capture, through video, photography,
filming, recording, or broadcasting, the private area of an individual without
their consent. This prohibition applies when the individual reasonably expects
privacy in the given circumstances.
(ii) RCW
9A.44.115
The law on
voyeurism provides detailed definitions for terms related to the offense.
Voyeurism is classified into two degrees. First-degree voyeurism involves
knowingly viewing, photographing, or filming someone without their consent in a
place where they expect privacy or capturing images of their intimate areas
without their consent. It is a class C felony. Second-degree voyeurism refers
to intentionally photographing or filming someone's intimate areas without
their consent and with the intent to distribute or disseminate the material. It
is a gross misdemeanor and not considered a sex offense for sentencing or sex
offender registration purposes.
2.
RUSSIA:
Russia does not explicitly address
voyeurism in its Criminal Code. Instead, voyeuristic acts can be prosecuted as
a "violation of privacy" according to Article 137 of the Criminal
Code of the Russian Federation. This offense carries potential penalties of a
fine in the amount up to 200 thousand roubles or salaries or in the amount of
the wage or salary, or any other income of the convicted person for a period up
to 18 months, or by compulsory works for a term of 120 to 180 hours, or by
corrective labour for a term of up to one year, or by arrest for a term of up
to four months. Additionally, prosecutors often overlook the infringement of
citizens' privacy rights. This article covers violations related to the secrecy
of personal correspondence, telephone conversations, mail, telegraphs, and
other forms of communication, and can result in penalties ranging from an
80,000 ruble fine to correctional labor for up to one year.
METHOD:
This research paper compares the
various nation’s laws with respect to voyeurism and therefore includes the
analysis of National and International statutes of India, United States, United
Kingdom and Russia. The mode of conduct of this research is through secondary
data. The secondary sources of information have been taken from various
Committee reports, reputed books, journals, international reports, magazines
and newspaper articles, Government reports, commentaries, published electronic
sources such as internet, e-journals, websites, and research papers of various
scholars. The researcher has followed the Bluebook 20th Edition model
for citing footnotes.
RESEARCH METHODOLOGY:
The
study employs a combination of doctrinal, historical, comparative, and
analytical methods of legal research. The doctrinal method is used to examine
the national and international legal framework pertaining to voyeurism. A
comparative approach is employed to analyse existing and proposed modalities
for protection against voyeurism, particularly in the legal systems of the
United Kingdom, the United States, and Russia. The historical method is
utilized to trace the origins of voyeurism laws, while the analytical method
helps analyse the current situation in India and identify areas for improvement
in the laws to enhance protection against voyeurism. For the doctrinal
research, the researcher collected statistical and other relevant data from
various sources. Authoritative primary sources of information were gathered
from national and international legislations. Additionally, case studies were
included to provide insights into the present state of voyeurism and related
crimes.
ANALYSIS:
1.
EVIDENCE:
In India,
many instances of voyeurism remain unreported due to the stigma surrounding
sexual abuse victims. Since offenders are only punished based on victim
complaints, numerous voyeurs go unpunished. Proving voyeurism can be difficult,
especially if the content was not filmed or published. Mere outrage of the
victim's modesty is not enough to establish an offense, it requires intent or
knowledge from the accused to outrage the victim's modesty. Thus, mens rea is
crucial in proving a voyeurism case. In such cases, independent witnesses may
not always be available, particularly when the act occurs in private.
Therefore, courts rely on surrounding circumstances to verify the offense and
consider the victim's oral testimony, which must be convincing and reliable.
According to the statistics provided
by NCRB, there were 1,090 cases of voyeurism in 2019, and this number has
slightly increased to 1,260 this year. Among the states, Andhra Pradesh has
reported the highest number of cases, with 124 incidents. The year 2020
witnessed a significant decrease in the number of voyeurism cases, likely due
to the COVID-19 pandemic and subsequent quarantine measures. The reasons behind
this decrease are not fully clear, as it could be attributed to the effects of
quarantine or potential difficulties faced by women in filing complaints.
Nevertheless, there was an increase in the consumption of explicit content
online during this period.
There were 1,513 reported cases of
voyeurism in India in the year 2021, according to the NCRB. The state with the
highest number of cases was Maharashtra with 210 cases, followed by Andhra
Pradesh with 159 and Odisha with 148 cases. Mumbai had the most reported
instances with 73, followed by Delhi with 22, Hyderabad with 18, Chennai and
Kolkata tied for fifth with 17 each.[15]
2.
PROCEDURE:
In
India, voyeurism carries a minimum imprisonment of one year, extendable to 3
years, and a fine for the first conviction.[16] It is a cognizable,
bailable offense triable by any magistrate. For second or subsequent
convictions, the minimum imprisonment is 3 years, up to a maximum of 7 years,
and the offense becomes non-bailable. Section 320 of the same code specifies
that voyeurism is not compoundable, meaning charges cannot be withdrawn or
compromised after filing the case. To report offenses like sexual harassment,
voyeurism, stalking, or rape, the victim can file a First Information Report
(FIR) with a female police officer. The complaint can be submitted in writing
or verbally, and a written copy must be provided by the officer. The offense is
bailable for the first conviction but non-bailable for subsequent convictions.
3. JUDICIAL
PRECEDENTS
The law of
voyeurism is not gender-neutral and its validity was questioned. The act of
assault or the use of criminal force on any man with the intention or the
knowledge of “outraging his modesty” is not made an offence under the Penal
Code. In the case of Girdhar Gopal v.
State[17] as
a violation of Article 14 and Article 15, wherein the constitutional validity
of section 354 was questioned.
The case of R v. Jarvis[18],
a Canadian high school teacher secretly recorded students using a pen camera
without authorization. The Supreme Court concluded that the recordings violated
the school board's policy, breached the trust between teacher and student, and
infringed upon the students' reasonable expectation of privacy.
In the case of State v.
Shailesh[19],
it was held that voyeurism is “a ridiculous type of enjoyment for men whereas
it causes mental trauma to women”. Such acts infringe the Right to privacy of
women and she feels unsafe in the places which are generally meant to be safe
for women. In the case of State v.
Unknown[20], it was
held that to prove the case under Section 354, IPC the video taken by the
accused should contain obscene footage.
In the case of Kalandi Charan
Lenka v State of Orissa[21], the
accused was charged for the offenses under Sections 354-A / 354-D/ 465/ 469/
506/ 507/ 509 of the I.P.C. read with Section 66-C/ 66-D/ 67/ 67-A of the
Information Technology Act because he threatened the girl, made a fake profile
in her name to sexually manipulate her and even published her obscene pictures
because she rejected his marriage proposal. The accused was found prima facie
guilty in all the cases and thus was convicted.
In Govind v. State of Maharashtra[22],
the court recognized the importance of privacy in safeguarding personal
intimacies within the home, such as family, marriage, and child-rearing. While
drawing on US privacy rights cases, the judgment primarily centered around
state surveillance and bodily privacy.
SUGGESTIONS:
The
provision for voyeurism in IPC section 354C has flaws, particularly its lack of
gender neutrality and failure to acknowledge male victims. Voyeurism has
evolved with technological advancements, with content being uploaded online and
permanently impacting victims. Cyber cells should be established to locate and
remove voyeuristic content from the internet, while the liability of
intermediaries in such cases needs clarification. Raising awareness about
voyeurism laws is crucial, as many victims may not be aware of their legal
protections. Measures like searches for hidden cameras can help detect and
prevent voyeuristic acts. Offenders with voyeuristic tendencies may benefit
from psychological counselling, therapy, support groups, and medication to
address and control their behaviour. Victims may hesitate to approach the
police due to societal humiliation and therefore, by prioritizing anonymity and
involving women's organizations, a supportive environment can be fostered which
in return leads to empowering victims and encouraging them to seek justice.
This holistic approach addresses the social and emotional dimensions of
victimization, enhancing efforts to combat voyeurism.
Consequently,
voyeurism like some other crimes, continue to be woman-centric and fail to
victimise men. There is a need for inclusion of men as potential victims of
such crimes under the newly added provisions. Countries like the US, use
terminology in their statute such as ‘someone’ to denote the crime being
punishable against both men and woman.
CONCLUSION:
This research paper explores
voyeurism, specifically focusing on its legal implications under section 354C
of the Indian Penal Code (IPC). A comparative analysis is conducted between
voyeurism laws in the UK, US, and Russia. The study highlights the lack of
evidence and procedural aspects related to voyeurism and emphasizes the need
for landmark cases to improve understanding. It acknowledges that voyeurism and
stalking primarily target women. The existing provisions of voyeurism laws are
found to be insufficient and lacking clarity, which is a common issue globally.
Legislative bodies must address this by improving punishments and establishing supportive
provisions for evidence and procedures. Victims of voyeurism can experience
significant emotional trauma similar to victims of rape or physical sexual
abuse. The paper offers suggestions for enhancing voyeurism laws and better
protecting victims.
[1] The Author
is a 3rd year BCOM LLB (Hons.) Student at the School of Excellence
in Law, The Tamil Nadu Dr. Ambedkar Law University
[2] The Sexual Harassment of Women at
Workplace (Prevention, Prohibition and Redressal) Act, No.14, Acts of
Parliament, 2013 (India) and Rules 2013.
[3]
Protection of Children from Sexual Offences Act, 2012, No.32, Acts of
Parliament, 2012 (India).
[5] The Indian Penal Code,1860, § 354C, No.45, Acts of
Parliament, 1860 (India).
[6] Sofia Bambri, VOYEURISM: THE
SILHOUETTED CRIME IN INDIA, S. Bhambri & Associates (Sep.17,2022, 11:20
AM), https://www.sbhambriadvocates.com/post/voyeurism-the-silhouetted-crime-in-india.
[15] The perversive act of
voyeurism: A shadow crime that is turning virulent (26 Nov 2022, 1:55 pm) https://www.barandbench.com/apprentice-lawyer/the-perversive-act-of-voyeurism-a-shadow-yet-virulent-crime.
[19] State v. Shailesh, CRL.A.
1025/2018.
Article Information
ADDRESSING VOYEURISM IN INDIA: LEGAL IMPLICATIONS AND EFFECTIVENESS BY: D DONNA GADIEL
Authors: D DONNA GADIEL
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/10/11
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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