PROJECT ON

CYBER STALKING
 ACKNOWLEDGEMENT
I take this opportunity to express my profound gratitude and deep regards to my guide Prof. Divya
Salim for her exemplary guidance, monitoring and constant encouragement throughout the course of
this thesis. The blessing, help and guidance given by her from time to time shall carry me a long way in
the journey of life on which I am about to embark. I would further like to thank her for giving me this
opportunity to do this project by instilling his faith in me.

Further I would like to extend my gratitude towards National Law Institute University which as an
institution gave me the platform to carry out my research on such an important.

I am also grateful to my parents for their constant guidance and support throughout the project. It would
have been impossible for me to complete this project without their love and affection.

Last but not the least; I would like to thank God for being with me throughout the course of the project
and keeping everything in its place.
 TABLE OF CONTENTS
RESEARCH FRAMEWORK ............................................................................................................. 3

A. STATEMENT OF PROBLEM ................................................................................................................ 3

B. HYPOTHESIS ................................................................................................................................... 3

C. MODE OF RESEARCH ....................................................................................................................... 3

D. AIMS AND OBJECTIVES .................................................................................................................... 3

I. INTRODUCTION TO CYBER STALKING ................................................................................... 4

II. DEFINITION OF CYBER STALKING .......................................................................................... 6

III. TYPES OF STALKERS IN GENERAL ....................................................................................... 7

A. REJECTED STALKERS ....................................................................................................................... 7

B. RESENTFUL STALKERS ..................................................................................................................... 7

C. INTIMACY SEEKERS ......................................................................................................................... 7

D. INCOMPETENT SUITORS ................................................................................................................... 7

E. PREDATORY STALKERS .................................................................................................................... 7

IV. MODES OF CYBER STALKING ................................................................................................ 8

A. EMAIL STALKING ............................................................................................................................. 8

B. INTERNET STALKING........................................................................................................................ 8

C. COMPUTER STALKING ..................................................................................................................... 8

D. CHAT ROOM STALKING .................................................................................................................... 8

E. BULLETIN BOARD SYSTEMS STALKING ............................................................................................... 9

V. PECULIAR CHARACTERISTICS OF CYBER STALKING ...................................................... 10

A. DIGITAL MODE OF PURSUING ........................................................................................................ 10

B. NEGATIVE ONLINE SOCIALISING ..................................................................................................... 10

C. CHOICE OF THE VICTIMS FOR BEING ACCESSIBLE ........................................................................... 11

D. CHANGING MOTIVE OF THE STALKER ............................................................................................. 11

1
VI. INDIAN LEGISLATION ........................................................................................................... 12

THE RITU KOHLI SAGA .............................................................................................................................. 13

VII. THE FALLBACKS OF THE INDIAN LEGISLATION ............................................................ 14

A. LIMITED SCOPE ............................................................................................................................ 14

B. REGULATORY RELIEFS DO NOT COVER THE FULL CONCEPT OF CYBER STALKING .......................... 14

C. UNWANTED SURVEILLANCE AND VICTIMISATION ........................................................................... 15

D. SENTENCING POLICY ................................................................................................................... 16

VIII. CONCLUSION ........................................................................................................................ 17

2
 RESEARCH FRAMEWORK
A. STATEMENT OF PROBLEM

Lack of adequacy of the existing cyber laws in the country with respect to stalking.

B. HYPOTHESIS

The hypothesis is to draw up an impression that the existing cyber laws with respect to stalking and
harassment of women are insufficient to curb the rise of cyber stalkers in light of digitisation.

C. MODE OF RESEARCH

A doctrinal mode of research shall be adopted to complete the study.

D. AIMS AND OBJECTIVES

• Understand the meaning and ambit of cyber stalking.

• Understand the various modes of cyber stalking.
• Understand the various kinds of stalkers.
• Analyse the current status of cyber stalking in India.
• Analyse the drawbacks of the current cyber stalking laws in India.
.

3
I. INTRODUCTION TO CYBER STALKING

The Internet has become a platform for people to connect globally in the course of business, education
and their social lives. The Internet has made it easy for people to communicate, meet a companion, or
compete with people on the other side of the world with a click of a mouse.

The growth of the information technology is accompanied by new and serious threats. When internet
was invented, inventors did not envisage for its bad behaviour. But the criminal mentality of human
psychology started its misuse by using internet as a tool of crime, which gave the birth to “Cyber-crime”
and world is facing a huge challenge from these cyber criminals. Cyber-crime is a major issue facing
society today. With the advent of technology, cyber-crime and victimization of women are on the high
and it poses as a major threat to the security of a person as a whole. Cyber-crime also known as computer
crime can be defined as “Criminal activity directly related to the illegal use of computer and a network,
for unauthorized access or theft of stored or on-line data that can be used for several criminal activities
against a victim.” 1

Cyber Stalking is one of the most widespread net crimes in the modern world. The word “stalking”
means "pursuing stealthily". Cyber stalking can be used interchangeably with online harassment and
online abuse. 2 It is the use of the Internet or other electronic means to stalk or harass a person. 3 Cyber
stalkers need not have to leave their home to find, or harass their targets, and has no fear of physical
violence since they believe that they cannot be physically touched in cyberspace. They use Internet, e-
mail, and other electronic communication devices to stalk persons. At the same time the unique
environment of the Internet creates “remoteness” on the part of the stalker, and provides a false sense
of security arising from the apparent anonymity that is present on the Internet.

In Cyber Stalking, stalker access the victim’s private information like name, family background,
telephone numbers and routines of the victim. 4 It is believed that Over 75% of the victims are female.
More than one million women and 370,000 men are stalked annually in the United States. An
astonishing one in twelve women and one in forty-five men will be stalked in their lifetimes From sexual
harassment to rape threats to gender-based hate speech, women face disproportionate levels of abuse

1
Saini, H & Rao, S “Cyber-Crimes and their Impacts: A Review” International Journal of Engineering Research and
Applications, 2. IJERA VOL. 2 (Mar-Apr 2012) at pp.202-209
2
Muthukumaran, B, “Cyber Crime Scenario In India” (2008) available on http://www.gcl.in/downloads/bm_cybercrime.pdf.
3
Kumar, M, “Cyber stalking : Online harassment or Online abuses” (2010) available on
http://www.cyberarmy.in/2010/12/cyber-stalking-online- harassment-or.html.
4
The Times of India, March 18 (2013) “Cyber stalkers leave residents in web of trouble” available on
http://articles.timesofindia.indiatimes.com/2013-03- 18/ludhiana/37813762_1_cyber-stalkers-cyber-cell-e-mail-account

4
online. In ‘”Don’t Let It Stand!”: An Exploratory Study of Women and Verbal Online Abuse on the
Internet in India’, research findings indicate that this is a growing issue for women across the world,
and that women develop a variety of strategies to deal with the verbal threats they face.

Even though India is one of the very few countries to enact IT Act 2000 to combat cyber-crimes, issues
regarding women still remain untouched in this Act. The said Act has termed certain offences as
hacking, publishing of obscene materials in the net, tampering the data as punishable offences. But the
grave threat to the security of women in general is not covered fully by this Act and hence, the Criminal
law amendment Ordinance, 2013 introduced Section 354D in order to remedy this lacuna.

5
II. DEFINITION OF CYBER STALKING

Academically, the concept of cyber stalking has been construed mainly as a behavioural misconduct
conveyed by digital communication technology. Cyber stalking is defined as “a group of behaviours in
which an individual, group of individuals or organization, uses information and communications
technology to harass one or more individuals. Such behaviours may include, but are not limited to, the
transmission of threats and false accusations, identity theft, data theft, damage to data or equipment,
computer monitoring, the solicitation of minors for sexual purposes and confrontation”. 5 According to
Brenner, “in a sense, cyber stalking and cyber harassment are lineal descendants of the obscene or
annoying telephone call offenses that were created roughly a century ago, to address harms resulting
from the misuse of a nineteenth century technology”. 6 Further, Elison and Akdenziz had construed the
term cyber stalking as “online harassment, which may include various digitally harassing behaviours,
including sending junk mails, computer viruses, impersonating the victim, etc.” 7

The concept of cyber stalking neither received any new academic understanding in India until 2010,
when Halder and Jaishankar provided a functional definition of cyber stalking which is as follows: “In
one word, when ‘following’ is added by mens rea to commit harm and it is successfully digitally carried
out, we can say cyber stalking has happened.” 8After the horrifying Delhi Gang rape, Justice Verma
Committee was set up in order to deal with the rising crimes against women. In light of such
recommendation, stalking was legally recognised as an offence in India through S.354D of the Indian
Penal Code which was inserted through the Criminal Law Amendment Act, 2013.

The criminal law amendment Ordinance, 2013 defined stalking in the following words: “Any man who
follows a woman or contacts or attempts to contact such woman to foster personal interaction
repeatedly despite a clear indication of disinterest by such woman or whoever monitors the use by a
woman of the internet, email or any other form of electronic communication or watches or spies a
person in a manner that results in fear of violence or serious alarm or distress, in the mind of such
woman or interferes with the mental peace of such woman, commits the offence of stalking.” 9

5
Bocij, P., Griffiths, M.D., McFarlane, L. (2002) “Cyber Stalking: A new Challenge for Criminal Law. The Criminal
Lawyer” at pp. 3-5.
6
Brenner, S. “Cyber Crime Metrics: Old Wine in New Bottles?”, VIRGINIA JOURNAL OF LAW AND TECHNOLOGY, (2004)
13, pp. 1-53.
7
Ellison, L., Akdeniz Y. “Cyber-stalking: the Regulation of Harassment on the Internet”, CRIMINAL LAW REVIEW, (1998)
at pp. 29-48
8
Halder, D., Jaishankar, K. “Cyber Victimization in India: A Baseline Survey Report”, (2010). Available at:
www.cybervictims.org/CCVCresearchreport2010.pdf.
9
Criminal Law (Amendment) Ordinance, 2013, Section 6.

6
III. TYPES OF STALKERS IN GENERAL

A. REJECTED STALKERS
This type of stalker is driven to pursue their victim in attempt to reverse what they perceive as a wrongful
set of circumstances causing a separation, prior divorce or termination of a relationship. These offenders
either feel misunderstood hoping to reverse the break up or feel angry and seeking revenge because their
attempts at reconciliation with the victim has failed in the past.

B. RESENTFUL STALKERS
Resentful stalkers are fully aware the victim is cognizant of the stalking, but continues to fulfil a
distorted vendetta he/she feels is warranted. Fear and anguish experienced by the victim are the
objectives of this type of stalker. For this type of profile, the stalker believes the victim both deserves
and requires being frightened because they have caused them and/or others agony and distress.

C. INTIMACY SEEKERS
This type of stalker does not have ill will towards their victim and simply wants to engage in a loving
relationship with them. Intimacy seekers view their victims as their soul mate destined to be together at
all costs. Intimacy seeker stalkers are often the segment of men or women who harass celebrities and
public figures. Blinded by their distorted perceptions of a destined love, they lose sight of the distress
and fear they are causing the person they stalk.

D. INCOMPETENT SUITORS
These people who fit this profile are stalkers deeply enamoured with their victim. Their interest for the
victim at times is focused on the endeavour of one day becoming a couple. They tend to lack social,
communication or courting skills and may feel entitled that their fantasy of a loving relationship is
inevitable. Feeling entitled and/or deserving of a relationship with the victim inspires the stalker to
gradually increase their frequency of contact. Although similar to the Intimacy Seeker stalker,
incompetent suitors are more gradual in their means and methods of contact.

E. PREDATORY STALKERS
Of the five types, the predatory stalker is by far the most dangerous and determined. This type of stalker
is motivated by a perverted sexual need. They engage in actively planning an attack and premeditation as
the predator how he will go about engaging in a sexual act(s) with his victim. They do not have feelings
of love for their victim nor motivated by a belief of predestination. Their fuel to dominate and victimize
resembles the sociopath experiencing little to no remorse for the welfare of their victim.

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IV. MODES OF CYBER STALKING

Low cost of internet and ease of use motivate stalker to use information technology tool to stalk people.
Cyber stalker use three different ways for stalking their target. 10

A. EMAIL STALKING
Email or electronic mail is the most commonly and heavily used network based application. Due to the
increasing use emails it is now become a most common way to harassed, threaten or stalk any individual.
In this type of stalking, stalkers basically send spontaneous email in the form of nuisance, including
hatred, obscene or threatening. Email stalker repeatedly send mails to their target for an attempt to
initiate a relationship, fix a relationship or threaten and hurt a person.

B. INTERNET STALKING
While email stalking is equivalents to traditional stalking in some ways, it is not restricted to, this
format. Stalkers casn more widely use internet in order to abuse and jeopardize their victims. In this
type of cyber stalking, stalker are more concern about public element then private.

C. COMPUTER STALKING
Computer stalking is a more dangerous form of stalking as in this mode of cyber stalking, the stalker
control its victim’s computer by unauthorized access. A cyber stalker can communicate directly with
their target as soon as the target computer connects in any way to the Internet. The stalker can assume
control of the victim’s computer and the only defensive option for the victim is to disconnect and
renounce their current Internet “address”.

D. CHAT ROOM STALKING

A chat room is a connection provided by online services and available on the internet that allows people
to communicate in real time via computer text and modem. Cyber stalkers can use chat rooms to slander
and endanger their victims. In such cases the Cyber stalking takes on a public rather than a private
dimension. During chat‘, participants type instant messages directly to the computer screens of other
participants. When a person posts a message to a public news group this is available for anyone to view
copy and store. In addition, a person’s name, email address and information about the service provider
are easily available for inspection as a part of the message itself. The Cyber-stalker can engage in live

10
Ogilvie, E. “Cyberstalking: Trends And Issues In Crime And Criminal Justice”, (2000) at 166.

8
chat harassment or abuse of the victim (otherwise known as flaming) or he/she may leave improper
message on the message board or in chat rooms for or about the victim.

E. BULLETIN BOARD SYSTEMS STALKING

A bulletin board system (BBS) is a local computer that can be called directly with a modem. Usually
they are privately operated and offer various services depending on the owner and the users. A bulletin
board allows leaving messages in group forums to be read at a later time. Often a BBS is not connected
to a network of other computers, but increasingly BBSs are offering intern net access and co Cyber
stalkers area using bulletin boards to harass their victims. Online have been known to known to post
insulting messages on electronic bulletin boards signed with email addresses of the person being
harassed. The Cyber stalker can also post statements about the victims or start rumours which spread
through the BBS. In addition a Cyber stalker can ‘dupe’ another internet users into harassing or
threatening a victim by posting a controversial or enticing message on the board under the name , phone
numbers or email address of the victim, resulting in subsequent responses being sent to the victim.

9
V. PECULIAR CHARACTERISTICS OF CYBER STALKING

Cyber stalking and physical stalking can be distinguished from each other. Various scholars and
academicians have helped in elaborating such differences, and thereby, regarding certain traits peculiar to
cyber stalking.

A. DIGITAL MODE OF PURSUING

Unlike physical stalking, cyber stalking may not need the perpetrator and the victim to stay in near
proximity. It can be seen that the core mode of cyber stalking is pursuing of the victim digitally with
intent to infringe her privacy against her will. Here lies the main distinctive feature of cyber stalking,
which makes it different from physical stalking. This persuading stage can be described as shadowing
of the victim. The process of shadowing includes accessing vital information of the victim including her
personal as well as workplace data. It may be noted that such data may float in the internet due to ever
increasing data contribution by the users themselves to the internet through various social media and
web platforms like Facebook, Twitter, LinkedIn, and search engines like Google, which provide free
services, as well as paid services such as mobile networking apps. 11

B. NEGATIVE ONLINE SOCIALISING

As such, pursuing or shadowing the victim or data mining about the victim can turn into an offensive
behaviour when the information gathered is used to keep ‘unwanted’ contact with the victim.
Traditionally, negative socialisation means a phenomenon which “occurs when others use punishment,
harsh criticism or anger, to try to teach us a lesson, and often we come to dislike both negative
socialisation and the people who impose it on us.” 12 The scope of this traditional explanation can be
enlarged for constructing the meaning of negative online socialising and it can be interpreted as a type
of online socialising where by a victim enters the vicious socialising network of the perpetrator
knowingly or unknowingly and the perpetrator gains undue evil benefits from such socialising, which
can harm the victim. Both the victim and the perpetrator can play their own roles in building up negative
online socialising scenario.

11
Gelman, L. (2009) Privacy, Free Speech, and “Blurry Edged” Social Networks. B.C.L. Review. Available at:
www.lawdigitalcommons.bc.edu/bclr/vol50/iss5/2.
12
What is the socialization process? Available at: www.soc.ucsb.edu/faculty/baldwin/classes/ soc142/scznDEF.html.

10
 C. CHOICE OF THE VICTIMS FOR BEING ACCESSIBLE
It may also be noted that the social media, email/message/digital communication service providers and
search engines may be parts of a wider database which can share the information of the user if the user
wishes so 13; the user can further be followed by people interested in the same subject, colleagues,
students, friends of the students, etc. Such followers can get to see not only the professional profile of
the user, but also the Facebook link and user email id if the user wishes to include them in his/her profile.
Similarly, a Twitter account can be used to log into storyfy.com through which users can share their
experiences, trending news, etc; it can also use hash tag in the similar fashion as in Twitter, and it
provides further opportunity to share the ‘story’ through Facebook, Twitter, Google+ or LinkedIn. All
that the user needs to do is to confirm participation in the site through his /her email id. As such, the
social media and the cloud attached to it, carry on ‘commodification of personal information’ 14 and,
nonetheless, it can provide a wider platform to carry out pursuing activity for cyber stalking through
data mining and reality mining.

D. CHANGING MOTIVE OF THE STALKER

It must also be noted that digitally pursuing or shadowing alone may not make the pursuer an offender
of cyber stalking. Such ‘shadowing’ by the stalker, if accompanied by an ill motive, may fall into the
category of cyber stalking. As the academic and legal definitions suggest, to attract the penal provisions
meant for cyber stalking, pursuing or shadowing must be done with an intention to monitor the victim
digitally as well as in real life in some cases. This understanding makes regulating the behaviour of
digitally pursuing challenging. This is especially so in cases when the pursuer or shadower shadows his
target, who may be a celebrity, in the course of simple fan following and not for obsessive monitoring
and stalking of the celebrity.15 Digitally pursuing or monitoring the victim fits in the concept of cyber
stalking only when the perpetrator starts making his victim aware of such pursuing or shadowing or
monitoring by communicating with his victim, which may be perceived as annoying, unwanted or
threatening by the victim.

13
Armbarst, M., Fox, M., Griffith, R., Joseph, A.D., Katz, R.H., Konwinski, A., Lee, G., Patterson, D.A., Rabkin, A.,
Stoica, I., Zaharia, M., “Above the Clouds: A Berkeley View of Cloud Computing”, Technical Report No. UCB/EECS-2009-
28, (2009).
14
Tavani, H.T., Grodzinsky, S. Cyber Stalking, Personal Privacy, and Moral Responsibility. Ethics and Information
Technology, (2002), pp. 123-132.
15
Wykes, M. “Constructing Crime: Stalking, Celebrity, ‘Cyber‘and Media” in Y. Jewkes (Ed.) CRIME ONLINE.
CULLOMPTON, WILLAN PUBLISHING, (2007) at pp. 128-143.

11
VI. INDIAN LEGISLATION

Section 72 of the Indian Information Technology Act, 2008 which deals with breach of confidentiality
and privacy, section 72A of the said Act which prescribes punishment for disclosure of information for
breach of lawful contract read with section 441 and 509 of the Indian Penal Code (which deal with
offences related to Criminal trespass and acts intended to insult the modesty of a woman respectively),
were being used to prosecute offenders for cyber stalking before coming into force of the Criminal Law
Amendment Act, 2013.

The Indian IT Act 2000 which was amended in 2008 does not directly address stalking. But the problem
is dealt more as an "intrusion on to the privacy of individual" than as regular cyber offences which are
discussed in the IT Act 2008. Hence the most used provision for regulating cyber stalking in India is
section 72 of the Indian IT Act 2000, which runs as follows;

Section 72: Breach of confidentiality and privacy: “Save as otherwise provided in this Act or any other
law for the time being in force, any person who, in pursuant of any of the powers conferred under this
Act, rules or regulations made there under, has secured access to any electronic record, book, register,
correspondence, information, document or other material without the consent of the person concerned
discloses such electronic record, book, register, correspondence, information, document or other
material to any other person shall be punished with imprisonment for a term which may extend to two
years, or with fine which may extend to one lakh rupees, or with both.”

Some opined that erstwhile Section 66A of the IT Act, 2000 which prescribed punishment for sending
annoying, misleading, etc, can be used as an effective regulatory provision for cyber stalking. 16

However, after the December, 2012 Delhi gang rape incidence, the Indian government had taken several
initiatives to review the existing criminal laws. A special committee under Justice Verma was formed
for this purpose and basing upon the report of the committee, several new laws were introduced. In this
course, anti-stalking law was also introduced. The Criminal Law Amendment Ordinance, 2013 added
S.354D to the Indian Penal Code to define and punish the act of stalking. Indian penal code provided
remedies against defamatory act or an act outraging the modesty of the women. The amendment of the
Act in 2013 introduced other offences and also made cyber stalking as an offence.

16
PRS (Institute for Policy Research Studies, New Delhi, India). 2012. Justice Verma Report Summary.
http://www.prsindia.org/parliamenttrack/report-summaries/justice-verma-committee-reportsummary-2628/.

12
Section 354D provides punishment against stalking. If a man contacts a woman or attempts to even after
her expressed disinterest, or monitors her activities on the internet, shall be liable for punishment of
imprisonment up to three years and fine under first conviction. Under second or subsequent conviction,
he shall be punished with imprisonment up to five years and fine. 17

It may be noted that the above provision was made specifically as a ‘women centric law’ and the
wordings of this law have put much emphasis on the infringement of privacy by way of monitoring and
stalking, which creates fear from violence, serious alarm or distress. It therefore provides a three
dimensional explanation to stalking: (i) despite her disinterest, physically persuading a woman
repeatedly by conducting in such a way that may create fear in her, may interfere with her peace of
mind, (ii) monitoring her digital whereabouts, communications, etc. by digital conducts which create
serious threat, alarm or interfere with her mental peace, and (iii) spying or watching her to in order to
pose a harm to her.

S.354D of the Indian Penal Code sets these confusions at rest by criminalising cyber stalking as a
behavioural pattern. The main aim of this law is to prevent the perpetrator from taking up behaviours
which construct cyber stalking. While this is appreciated, it must be remembered that this law was
created in the shadow of physical stalking laws and therefore suffers from numerous drawbacks which
are further analysed.

THE RITU KOHLI SAGA

The first case reported of cyber stalking in India is the Manish Kathuria Case and is regarded as the eye-
opener for the 2008 amendment to the IT Act. 18 In the said case, Manish was stalking a person called
Ritu Kohli by initially following her on the website www.mirc.com, abused her by using obscene
language and then gave her telephone number to various people. Then, he adopted her name to chat on
the website. This resulted in Ritu receiving almost forty obscene telephone calls at odd hours of the
night over three consecutive days. The police had registered a case under 509 IPC but the section did
not cover the instance of cyber stalking.

Unfortunately, there is no record of any subsequent proceeding in the instant case and the research is
limited to this extent.

17
The Criminal Law (Amendment) Act, 2013, § 354D.
18
P. Shah, Cyber Stalking & the impact of its Legislative Provisions in India, http://www.legallyindia.in/cyber-stalking -
the-impact-of-its-legislaive-provisions-in-india.

13
VII. THE FALLBACKS OF THE INDIAN LEGISLATION

A. LIMITED SCOPE
It must be noted that S.354D of the Indian Penal Code protects women from men. Creators of this law
failed to take note of famous cases like that of Megan Meier, 19 where the perpetrator was a woman
victimising another young woman. A clear reading of the clause of the Section would show that the
language of the provision indicates that physical and online stalking can be a combined act, or separate
acts. The language in the first clause extends the scope of the law to a person who can be the perpetrator
and who is (i) known to the victim and who may be in relationship with the victim including personal
or professional relationship, and such person may have access to the private data or private internet
activities of the victim with the knowledge of the victim, or (ii) unknown to the victim, who may not be
in any prior relationship and who may try to access the privacy of the victim and also breach the privacy
and confidentiality of the victim. The language also broadly extends its scope to ‘aide stalkers’ and data
mining by the perpetrator when it includes monitoring the web-space, computer, etc. by the victim and
watching or spying the victim. But S.354D does not explicitly mention about interstate stalker as has
been mentioned in Ss.2261A of US Code 18. This makes the question of jurisdiction a critical issue.

B. REGULATORY RELIEFS DO NOT COVER THE FULL CONCEPT OF CYBER

STALKING

Further, it may be noted that clause (1) of Section 354D of the IPC highlights the motive of the act of
stalking, thus reflects the causing of the fear factor. But, unfortunately, this law provides regulatory relief
for only a part of the whole concept of cyber stalking, i.e. invasion of privacy, and not the full concept,
which includes invasion of privacy and also communicating the threat. This provision does not directly
indicate the patterns as how the victim can be ‘monitored’, ‘watched’ or ‘spied’ when she is being cyber
stalked. It neither includes any direct ‘third party’ liability when the aide stalker is involved. It needs to
be understood that in India, the concept of ‘conduct’ has not been critically examined by the courts in
the backdrop of cyber stalking cases. It is obvious that when the courts have to consider ‘conducts’ for
justifying the role of anti-cyber stalking law, the activities of the victim cannot be overlooked. The
courts in the US have interpreted the meaning of the term ‘conduct’ in relation to cyber stalking as a

19
U.S. v. Drew, 259 F.R.D. 449 (C.D. Cal. 2009).

14
holistic term involving the online behaviour of the perpetrator and the communication carried on by
him/her with a particular purpose which caused the victim to feel distressed, or afraid.20

In India, the court’s understanding of the victim’s rights and responsibilities towards using the ‘ignore’,
‘blocking’ options as has been provided by the service providers still needs to be nurtured when it comes
to cyber stalking cases. This is especially so when online activities of the victims may constitute positive
or negative online socialising, which can help the stalker. Further, S.354D of the IPC does neither
proscribe the mannerisms as how the stalker should not use such online conducts, communication and
real life information of the victim to fulfil his purpose; i.e., to create distress or fear for the victim.

In India this can become a particular problem especially when the victims can be women who are
involved in professions including governance of the country, including mainstream politics or
bureaucrats, who need to compulsorily reveal their data regarding assets. Such public data may also
include residential information and data regarding children. Further, many celebrity women, film, TV,
sports, news-media persona have their Twitter or Facebook accounts open for public viewing. The social
media can neither be held liable for data mining as such users may have consciously as well as
consensually opted for minimum privacy policy and thereby contributed more personal data. Such
profiles can very well aide in stalking activities including data mining.21

C. UNWANTED SURVEILLANCE AND VICTIMISATION

Section 354D suffers from another major drawback when it comes to regulating the privacy of the victim
and conduct and communication of the prospective harasser; the proviso clause to Section 354D has
excluded specific persons from being accused of stalking when it is done under specific circumstances.21
This is again a clear resemblance of the prosecutorial guidance as has been mentioned in Section 4A
of the PHA. As such, the provisions which mention that when the breaching of privacy by way of
monitoring internet usage or email or online communication or fostering relationship is done for
preventing and detecting any crime by someone entrusted with the responsibility of detecting and
preventing crime, or when it is done under “any law or comply with any condition or requirement imposed
by any person under any law”, it actually opens the flood gate of ways of misusing the provision and
breaching of the confidentiality and privacy of the victim and victimise her in arbitrary ways. The
language of the third provision proves more dangerous when it says that the act of stalking may not be

20
United States vs. Cassidy, 814 F. Supp 2D 574 (D. md. 2011)
21
Arya, D. (2013) Why are Indian Women Being Attacked on Social Media? Available at: http://www.bbc.co.uk/news/world-
asia-india-22378366.

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considered as a penal offence when the accused person proves that in the particular circumstances, the
course of conduct was reasonable. Understandably, these provisions may safeguard activities to nab
incidences of cyber terrorism or cyber phishing cases, especially when seen in the lights of Section 69
of the Information Technology Act, which provides powers to issue directions for interception or
monitoring or decryption of any information through any computer resource, or 69A of the Information
Technology Act which provides power to issue directions for blocking for public access of any
information through any computer resource, or 69B of the Information Technology Act which speaks
about power to authorize to monitor and collect traffic data or information through any computer
resource for cyber security. Open clauses of provisions may prove extremely dangerous for protection of
freedom of speech and expression and also privacy of individuals, especially when Section 354D of the
IPC has been categorised as non-baliable offence with punishment for an imprisonment term amounting
from one to three years and with fines. This makes the law anti-therapeutic in its nature.

D. SENTENCING POLICY
Section 354D of the IPC suffers from another major drawback in its sentencing policy. This provision
has made cyber stalking essentially a criminal act and, as such, has prescribed criminal recourse for the
same. The provision has made the offence of stalking (including cyber stalking) a cognizable, but
bailable offence. As per this provision, it is punishable with imprisonment for a maximum period of
three years with fine in the case of first conviction. However, for the second conviction, the offence has
been made cognizable, non-bailable and punishable with imprisonment for a period of maximum five
years with fine. In both cases, the provision has empowered “any magistrate” to try the offence.
However, this provision as such, does not prescribe any civil remedy like the US or UK laws by ways of
restraining orders, including no- contact orders which may prevent the stalker from contacting the
victim. It is broadly assumed that once the accused is arrested and imprisoned, his devices would be
ceased by the police and he would not be allowed to use any means to communicate with the victim but
this is not necessarily true.

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VIII. CONCLUSION

Indian laws are competent and well drafted to punish traditional offences on the physical space but the
same cannot be said of cyber space. One of the major reasons for this is the continuous growing and
evolving nature of cyber space, unlike physical space. Cyber socializing has opened the gateway to a
global village which forms its own culture, rules, ethics and ethos. Due to these reasons, what shape the
crimes might take place is still not fully foreseen; cyber stalking is one such crime. Due to risk or fear
of getting abused in the society, nearly half of the victims try to just hush up and ignore such stalking
as a bad dream. However, the issue of cyber stalking, being very sensitive, must be addressed
immediately as it leaves a deep scar on the victim’s psyche if left unaddressed.

Cyber stalking in the contemporary world is of utmost importance and it is a general trend of the masses
to ignore cyber stalking. Hence, there is a pivotal need for an awareness regarding this heinous-online-
abuse should be spread amongst the people. Likewise, existence of the legal remedies to curb it must
be brought to the knowledge of masses as it is the only silver lining in the dark clouds to dispel the
atrocious darkness of cyber stalking. It completely intrigues me and leaves me bewildered as to the
reason for there being almost no landmark judgement elucidating and expanding Section 354D in order
to curb the rising stalkers found these days.

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