Section 78 Stalking of the Bharatiya Nyaya Sanhita (BNS)

Section 78 Stalking of the Bharatiya Nyaya Sanhita (BNS)

Stalking

78. (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

(ii) monitors the use by a woman of the internet, e-mail or any other form of electronic communication,

commits the offence of stalking: 

Provided that such conduct shall not amount to stalking if the man who pursued it proves that— 

(i) it was pursued for the purpose of preventing or detecting crime and the man accused of stalking had been entrusted with the responsibility of prevention and detection of crime by the State; or

(ii) it was pursued under any law or to comply with any condition or requirement imposed by any person under any law; or 

(iii) in the particular circumstances such conduct was reasonable and justified. 

(2) Whoever commits the offence of stalking shall be punished on first conviction with imprisonment of either description for a term 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 may extend to five years, and shall also be liable to fine.

Explanation of Section 78 Stalking of the Bharatiya Nyaya Sanhita (BNS): 

What is Stalking?

Under Section 78 of the Bharatiya Nyaya Sanhita (BNS), 2023, Stalking is when a man repeatedly follows or contacts a woman, despite clear indications of her disinterest, or monitoring her online activities without her consent.this act is being a breach of privacy and personal space, is a serious offence.

The provision also provides certain exceptions where stalking may be justified, such as when the accused is trying to prevent or detect a crime or acting under lawful authority. However, outside of these exceptions, stalking is punishable.

Definition of Stalking:

Under Section 78(1), a man is considered to have committed stalking if he:

• Repeatedly follows a woman and attempts to contact her to foster personal interaction, despite clear indications of her disinterest; or
• Monitors a woman’s online activities, including her use of the internet, email, or other electronic communications, without her consent.

Exceptions to Section 78 Stalking :

The law provides specific situations where such conduct may not constitute stalking:

1. Crime Prevention or Detection: If the actions were undertaken to prevent or detect a crime, and the individual was entrusted with this responsibility by the state.
2. Legal Compliance: If the conduct was pursued under any law or to comply with conditions or requirements imposed by any person under any law.
3. Reasonable and Justified Conduct: If, in the particular circumstances, the conduct was reasonable and justified.

Ingredients of Section 78 Stalking of the Bharatiya Nyaya Sanhita (BNS):

For an act to be considered stalking under Section 78, the following ingredients must be present:

1. Repeated following or contact:The man must follow the woman or repeatedly attempt to establish personal contact, even after she has shown disinterest.

2. Monitoring online activities: The man must monitor the woman’s use of the internet, email, or any form of electronic communication without her consent.

3. Clear indication of disinterest: The woman must clearly indicate her disinterest, which the man knowingly ignores.

4. Intent to foster personal interaction: The man’s actions should have the purpose of fostering some form of personal interaction with the woman.

Punishment for Stalking

According to Section 78(2), the punishments for stalking are:

First conviction:The person guilty of stalking will be punished with imprisonment of up to three years and may also be liable to pay a fine.

Second or subsequent conviction: For a second or subsequent conviction, the imprisonment may extend up to five years, along with a fine.

Section 78 Stalking : Particulars of the Offence

Examples of Stalking

1. Rakesh follows Priya every day as she walks home from work. Despite Priya telling him to stop and making it clear that she is not interested in any interaction, Rakesh continues to follow her. This act constitutes stalking under Section 78.

2.Sunil continuously sends messages to Neha on social media, even after she blocks him and tells him she is not interested. Sunil also starts monitoring her social media posts and comments on them regularly, trying to gather information about her life. This too amounts to stalking.

3. If a police officer monitors the online activities of a woman under suspicion of involvement in criminal activity, this might not constitute stalking, as it could fall under the lawful exception for crime detection.

Case Laws on Stalking

1. Shafi Mohammad v. State of Rajasthan, (2018) : The Supreme Court held that persistent online surveillance or unwanted electronic contact could constitute stalking under Indian law, even when physical contact or proximity is absent. This case expanded the definition of stalking in the context of technological advancements.

2. Pawan Kumar v. State of Himachal Pradesh, (2017) : The Supreme Court held that stalking includes persistent and unsolicited following or contacting a woman despite her clear disinterest. In this case, the court underscored the importance of respecting a woman’s autonomy and privacy.

3. Kumari Ganga v. State of Delhi, (2021) : The Delhi High Court convicted the accused for stalking under Section 354D IPC (similar to Section 78 BNS). The court emphasized that repeated attempts to communicate with a woman despite her resistance amounted to a violation of her right to live with dignity.

READ MORE: Sections 61, 62, and 63 of the Bharatiya Sakshya Adhiniyam(BSA): Admissibility of electronic records, BNS Sec. 285 : New provision for Obstruction In Public Way,Section 77 Voyeurism of the Bharatiya Nyaya Sanhita (BNS)

FAQs Related Section 78 Stalking of the Bharatiya Nyaya Sanhita (BNS)

1. What is considered stalking under Section 78 of BNS?

Stalking includes repeated unwanted following, contacting, or monitoring of a woman by a man, either physically or electronically, even after the woman has clearly indicated her disinterest.

2. Can stalking be justified under any circumstances?

Yes, stalking may be justified if the accused is a state-authorized officer preventing or detecting a crime, or if the conduct was legally mandated. However, such justifications are limited to specific circumstances.

3. What is the punishment for stalking under Section 78 BNS?

For the first conviction, the punishment is imprisonment for up to three years, along with a fine. For subsequent convictions, imprisonment can extend up to five years, along with a fine.

4. Can online harassment be classified as stalking?

Yes, monitoring a woman’s online activities without her consent or repeatedly attempting to contact her via electronic communication can be considered stalking under Section 78.

5. Does stalking only refer to physical following?

No, stalking includes both physical following and digital monitoring, such as tracking someone’s online activity or sending repeated messages or emails without consent.

6. What is Section 78 of the Bharatiya Nyaya Sanhita (BNS), 2023?

Section 78 of the BNS, 2023, defines the offence of stalking, where a man follows or repeatedly contacts a woman despite her clear refusal, or monitors her online activities without her consent. The law specifically protects women from such unwanted attention and harassment, whether in physical or digital spaces.

7. Is stalking under Section 78 of the BNS bailable or non-bailable?

Non-bailable. The offence of stalking under Section 78 is non-bailable, meaning that bail is not automatically granted as a right, and the court’s discretion is needed to release the accused on bail.

8. Is section 78 BNS only applicable to men?

Yes, Section 78 of the Bharatiya Nyaya Sanhita (BNS), 2023, is specifically applicable to men.

9. Which is similar section of IPC to section 78 of BNS?  

Section 78 of the Bharatiya Nyaya Sanhita (BNS) 2023, which deals with stalking, is similar to Section 354D of the Indian Penal Code (IPC)

10. Is the offence of stalking under section 78 gander bias?

Yes, the offence of stalking under Section 78 of the Bharatiya Nyaya Sanhita (BNS), 2023, is gender-specific and is designed specifically to protect women. The section clearly states that the offence is committed by “any man who follows a woman” or “monitors the use by a woman of the internet, e-mail or any other form of electronic communication.” This wording indicates that the provision is aimed at protecting women from harassment by men.

Why Is It Gender-Specific?

Some may argue that this provision reflects the social reality in India, where women are often the primary victims of stalking and harassment, both in physical and online spaces. By making this law gender-specific, the Bharatiya Nyaya Sanhita focuses on protecting women from behaviors that can lead to psychological harm, invasion of privacy, and fear for personal safety.

Is This Gender Bias?

Some may argue that this provision reflects gender bias because it assumes men are the perpetrators and women are the victims. However, the gender-specific nature of this section is based on the social context of India, where crimes like stalking overwhelmingly affect women. This does not mean that men cannot be victims of similar offences, but this law is specifically tailored to address the prevalent issue of stalking against women.