The Himachal Pradesh High Court has granted anticipatory bail to a businessman accused of stalking, ruling that merely taking photographs of a woman does not meet the legal definition of stalking under Section 78 of the Bharatiya Nyaya Sanhita (BNS), reported Law Chakra . The court underscored that stalking must involve repeated, unwelcome interaction – more than just a one-off act of photography.
Legal Context: Defining Stalking Under BNS Section 78
Section 78 of the BNS defines stalking as a heinous offense. It applies when a man persistently follows or contacts a woman despite a clear indication of her disinterest, or monitors her digital communication, to foster personal interaction. The law positions stalking as a serious infringement on personal autonomy and dignity.
In the present case, the complaint alleged the businessman had taken photographs of the wife of a regional pollution control officer to intimidate him. The complaint also claimed he attempted to follow or even hit the officer’s car, suggesting harassment and coercion. He was booked under multiple sections including obstruction, criminal intimidation, stalking, and related charges.
Justice Rakesh Kainthla, in return, clarified that the allegations of photographing did not equate to stalking. His observation: there was no evidence that the accused had followed the woman or initiated repeated contact to foster personal interaction. As such, the court held that the complaint lacked the necessary elements to sustain a stalking charge—and granted anticipatory bail accordingly.
Parallel Precedents: Photography vs. Voyeurism and Stalking
This ruling echoes similar judgments by other high courts. In Kerala, the High Court held that taking photographs of a woman in public – outside her home, for instance – cannot be classified as voyeurism if there was no reasonable expectation of privacy. Voyeurism under Section 354C of the Indian Penal Code (IPC) requires capturing a woman engaged in a “private act,” such as in a private setting or where her modesty could be reasonably offended. Photography in open or visible places fails to meet this threshold.
The Calcutta High Court, too, ruled that a criminal case against a man who secretly took photographs of a woman standing on the road did not fulfill the required elements for stalking (IPC Section 354D) or voyeurism (Section 354C). The court reiterated that stalking demands unwanted, repeated contact and an element of intrusion – not just observation or photography.
What This Means: Photography Isn’t Automatically a Crime
These rulings highlight a critical nuance: not every act of photographing a woman – especially in a public setting – falls under stalking or voyeurism. For a charge of stalking to stick, there must be sustained, unwanted interaction or surveillance, and the victim must clearly express disinterest. Similarly, voyeurism requires infringement of privacy in settings where privacy is reasonably expected.
That’s not to say all such acts are beyond reproach. Unauthorized photography can still potentially violate a person’s constitutional right to privacy under Article 21, particularly when used in abusive or harmful ways. Additionally, sections of the Information Technology Act (like Section 66E, prohibiting recording private parts without consent) or IPC Section 509 (insult to modesty) can apply in more nuanced scenarios.
Key Takeaways for Legal Interpretation and Practice
- Legal definitions of stalking and voyeurism are precise – they require persistent behavior, invasion of privacy, or intent to harass – not isolated acts like photographing someone in public.
- Courts are careful not to criminalize benign behavior, ensuring that laws protecting dignity don’t overreach into everyday public interactions.
- However, privacy remains a foundational concern, and inappropriate or malicious use of an individual’s image can still attract civil or criminal liability under other provisions.
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