July 28, 2020

Voyeurism Concept in India

This article has been written by Himansu Batar, IMS Unison University, Dehradun and Curated by Naman Jain of Bennett University, Greater Noida

A person’s body is a private thing that they possess, and no one had the right to invade this privacy. Keeping this in mind, the amendment in IPC through the Criminal Law Amendment Act 2013 took a most necessary step of recognising and stalking sexual harassment and Voyeurism as a crime. The amendment not only recognises the physical or real-world conduct of such activities, but it recognises their electronic forms as well. While sexual harassment and stalking had always been topics of discussion, Voyeurism has not got much limelight.

Voyeurism is the act of observing, capturing, or distributing the images of another person without their consent or knowledge, usually for sexual gratification. This constitutes a type of sexual harassment under sec.354(c) and describes the act as, “Viewing and/or capturing the image of a girl or woman going about her private acts, where she thinks that no one is watching her, is a crime. This includes a woman using a toilet, or who is undressed or in her underwear, or engaged in a sexual act.” Any other person at the behest of the perpetrator or distributing such image shall be punished on first conviction with the imprisonment of either description for a term not less than one year that may extend to three years, and shall also be liable for fine. It is punishable on a second or subsequent conviction with the imprisonment of any description for a term not to be imposed.

The concept of Voyeurism started with the Information Technology Act 2000, in which, both men and women were covered, and the penalty was up to 3 years with a maximum fine of Rs. 2 lakhs. The Information Technology Act 2008 strengthens the concept of Voyeurism. With the incorporation of provisions like S. 66E, S. 67, S. 67A and S. 79, the act covers the prohibition of all activities like transmitting, recording, capturing, recording of obscenity, and capturing a Sexually explicit act.

A tremendous rise in cybercrimes was seen because of the technological advancements and cyber law being a new field is not known by many people. Thousands of such cases are not filed in fear of getting a bad name. A terrifying, spine-chilling incident of Delhi rape case a.k.a. Nirbhaya Rape case took place in 2012. A wave of outrage spread throughout the nation and understanding the heinousness and brutality of the act; the Criminal law was amended based on the recommendations of Justice J S Verma Committee. Provisions related to sexual harassment voyeurism were added as a part of it.

In April 2015, the concept of voyeurism again was touched upon, when Smriti Irani, the HRD Minister, spotted a hidden camera in one of Fab India store pointing towards trial rooms. She raised the alarm and then reported to the Jurisdictional police. The incident was covered widely. However, it is still not enough to create an awareness in the society regarding this heinous crime.

We must understand that Voyeurism is not just an act that affects the society at large; instead, it is an act that grievously violates the fundamental rights of a person as guaranteed under Article 21 of the Indian Constitution. After the case of Justice K.S. Puttaswamy (Retd) vs Union of India, the incorporation of Right to privacy under Right to dignified life, where the person’s privacy is given excellent protection, the act of Voyeurism stands entirely against it.

Previously, there was no clear definition and scope for ‘intrusion into privacy.’ The offence typically combines with other sorts of harassment or violence and is not considered as a separate offence. The provision of this section requires the criminal to possess the intention to insult a woman’s modesty. It might or might not be an act that physically endangers a person’s security; however, it causes mental trauma and fear to the victim. It is a blatant intrusion into the privacy of a person, where the stalker tries to ascertain relations with his victim without his consent. A person would expect that private space, for instance, his/her house, or an area where he/she can assume they are not being watched or observed. A fair presumption of privacy includes both public and private areas where the victim within reason is expected not to be detected while interacting in private activities like disrobing or sexual acts.

An interesting case regarding Voyeurism was reported in Canada in February 2019 under the head R v. Jarvis, where a high school teacher without any direction from school or school board and without anyone’s knowledge recorded the students, especially, female students through a pen camera. The question before the Supreme court was how to interpret the meaning of “reasonable expectation of privacy”. The members of the Bench had the same conclusion stating that the recording violated the policy of the school board, questioning the relationship of trust between a teacher and a student. The videos targeted specific female students, often with a focus on their breasts. The students would never expect their school teacher to record in such a manner. They had a reasonable expectation of privacy that got infringed.

Despite being new, the concept of voyeurism had a tremendous effect on the legal system of India, but it still has some flaws. The laws are more women centric as they are found more susceptible to such acts, but we cannot ignore the very fact that transgender people and males are susceptible to this crime too. There is a requirement to make such laws more gender-neutral for better results. Privacy, crime, and safety of people are intricately linked in any system. A vital part is the safety of citizens, their privacy, and private information. If a legal system does not protect the privacy of the body and information of its people, insecurity will prevail forever in such a system

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