Bharatiya Nyaya Sanhita: Section 78 – Stalking

(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.

Simplified Explanation

Section 78 of the Bharatiya Nyaya Sanhita (BNS) defines and criminalizes stalking, which involves repeated, unwanted attention or harassment directed toward an individual, typically a woman, with the intent to cause fear, distress, or to intrude upon her personal life. This section recognizes stalking as a serious violation of personal boundaries and safety, aiming to protect individuals from harassment and intimidation.

Key Elements of Section 78

1. Definition of Stalking
   • Stalking involves repeatedly following, contacting, or attempting to communicate with an individual, despite clear indications that the attention is unwelcome.
   • This can include physically following someone, attempting to establish contact through electronic means (e.g., phone calls, messages, social media), or any behavior that infringes on the person’s privacy or creates fear.
2. Acts Covered Under Section 78
   • Section 78 applies to various behaviors that constitute stalking, such as:
     • Following or monitoring a person’s movements, in person or through electronic means.
     • Attempting repeated communication despite being asked to stop, through calls, texts, or social media.
     • Surveillance or any action aimed at tracking a person’s activities, with or without their knowledge.
   • The section is intended to protect individuals from sustained harassment that creates an environment of fear, discomfort, or intimidation.
3. Purposeful and Unwanted Attention
   • The essence of stalking is that it involves persistent and unwanted attention, which the victim has made clear is undesired.
   • Section 78 focuses on ensuring that individuals can set boundaries without being subjected to fear, harassment, or invasion of their personal space.
4. Punishment for Stalking under Section 78
   • Section 78 prescribes penalties for stalking based on whether it is a first or subsequent offense:
     • For the first offense: The stalker may face imprisonment for up to three years, along with a possible fine.
     • For repeat offenses: The punishment may extend to imprisonment for up to five years, along with a fine.
   • The increased penalty for repeat offenses is intended to deter persistent offenders and protect victims from continuous harassment.
5. Examples of Stalking under Section 78
   • Example 1: An individual persistently follows a woman to her workplace and home, despite her repeated requests to stop. This behavior constitutes stalking and can be punished under Section 78.
   • Example 2: A person repeatedly sends unwanted messages to someone on social media, even after being blocked or asked to stop. This conduct can be considered stalking under Section 78, as it invades the individual’s privacy and creates distress.
6. Purpose of Section 78
   • Section 78 aims to:
     • Protect individuals from harassment and intimidation by penalizing those who repeatedly engage in intrusive behavior.
     • Reinforce the right of individuals to live free from fear and unwanted attention.
     • Deter individuals from engaging in behavior that infringes upon another person’s boundaries and personal safety.
7. Upholding Personal Safety and Privacy
   • Section 78 emphasizes that personal boundaries and safety are fundamental rights, and repeated intrusion upon these rights is unacceptable.
   • By criminalizing stalking, this section provides individuals with legal recourse against those who violate their privacy and peace of mind through harassment.

Importance of Section 78

Section 78 is an essential provision for ensuring the safety and privacy of individuals by criminalizing stalking and holding offenders accountable. It underscores society’s commitment to respecting personal boundaries and protecting individuals from harassment that can cause significant psychological and emotional distress.

In summary, Section 78 of the BNS criminalizes stalking, prescribing up to three years of imprisonment and fines for a first offense, and up to five years for repeat offenses. This section supports victims’ rights to privacy and security, helping to deter persistent harassment and promote respectful, non-intrusive behavior in society.