Understanding Stalking Under the Bharatiya Nyaya Sanhita, 2023: A Complete Legal Guide
By Advocate Avichal Pandey
Advocate, Allahabad High Court
In today's digital era, stalking is no longer limited to physically following someone. It has evolved into online harassment, persistent messaging, social media monitoring, and digital surveillance. Recognising this growing threat, the Bharatiya Nyaya Sanhita, 2023 (BNS) has retained the offence of stalking with clear legal consequences under Section 78.
This article explains what amounts to stalking under Indian law, its essential ingredients, statutory exceptions, punishment, and the legal remedies available to victims.
What is Stalking Under Section 78 of the Bharatiya Nyaya Sanhita, 2023?
Section 78 of the BNS makes stalking a criminal offence when a man repeatedly follows or contacts a woman despite her clear indication that she does not wish to interact with him. The law also extends to certain forms of electronic surveillance and online harassment.
The objective of the provision is to protect a woman's dignity, privacy, and personal liberty while ensuring that repeated unwanted conduct does not escalate into more serious offences.
Acts That May Constitute Stalking
Depending upon the facts of each case, stalking may include:
- Repeatedly following a woman in public places.
- Persistently attempting to communicate after being refused.
- Sending continuous unwanted messages, emails, or social media requests.
- Monitoring a woman's online activities without her consent.
- Tracking her movements through digital means.
- Repeated digital surveillance causing fear or mental distress.
A single casual interaction generally does not amount to stalking. The conduct must usually demonstrate persistence despite the woman's unwillingness.
Essential Ingredients of the Offence
For an allegation of stalking to sustain under Section 78 BNS, certain essential elements are generally required.
1. Repeated Conduct
The behaviour should not be an isolated incident. There must be repeated attempts to follow, contact, or monitor the woman.
2. Lack of Consent
The woman must have clearly shown that she does not wish to communicate or interact. Continuing despite such refusal is a crucial factor.
3. Invasion of Privacy
Monitoring electronic communications, internet usage, or digital activities without justification may amount to an invasion of privacy.
4. Fear or Harassment
The conduct should be capable of causing intimidation, emotional distress, anxiety, or fear.
Online Stalking Is Also a Crime
Modern technology has created new methods of harassment. Digital stalking may include:
- Repeated social media messages.
- Creating fake profiles to monitor someone.
- Tracking online activity.
- Sending continuous emails or messages.
- Monitoring a person's electronic communications.
Indian criminal law recognises that harassment through digital platforms can be as harmful as physical stalking.
Statutory Exceptions
The law also recognises situations where certain conduct may not amount to stalking.
These include:
- Acts undertaken by law enforcement agencies for preventing or investigating crime.
- Conduct specifically authorised under any law.
- Actions that are reasonable and justified in the particular circumstances.
Therefore, every instance of monitoring or contact does not automatically become a criminal offence. Courts examine the surrounding facts carefully.
Punishment Under Section 78 BNS
The punishment prescribed is stringent.
First Conviction
- Imprisonment of up to three years, and
- Fine.
Subsequent Conviction
- Imprisonment of up to five years, and
- Fine.
Repeat offenders face significantly higher punishment, reflecting the seriousness with which the law treats persistent harassment.
How Can Victims Protect Their Rights?
A victim of stalking should take timely legal steps.
Some practical measures include:
- Preserve screenshots, emails, chats, and call records.
- Save CCTV footage wherever available.
- Maintain details of dates, times, and locations of incidents.
- Avoid deleting electronic evidence.
- Report the matter to the nearest police station without unnecessary delay.
- Consult an experienced criminal lawyer for appropriate legal advice.
Proper documentation often plays a crucial role during investigation and trial.
Important Legal Considerations
Every allegation of stalking must be assessed on its own facts. Courts examine whether:
- There was repeated conduct.
- The woman clearly expressed her unwillingness.
- The accused continued despite such refusal.
- The conduct amounted to harassment or invasion of privacy.
- Any statutory exception applies.
The prosecution bears the burden of proving the ingredients of the offence beyond reasonable doubt.
Conclusion
Stalking is not merely an inconvenience—it is a serious violation of an individual's privacy, dignity, and sense of security. Section 78 of the Bharatiya Nyaya Sanhita, 2023 seeks to address both physical and digital forms of stalking by prescribing clear legal standards and meaningful punishment.
At the same time, the law also provides safeguards by recognising legitimate exceptions and ensuring that every case is decided on its own evidence. Awareness of these legal provisions empowers victims to seek timely justice while ensuring that the criminal justice system is invoked responsibly.
Author:
Advocate Avichal Pandey
Advocate, Allahabad High Court
Practising in Criminal, Constitutional, Service, and Civil Matters.
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