Stalking under Section 78 BNS: Definition, Cyber Stalking and Legal Framework

A former partner who cannot accept the end of the relationship. A stranger who fixates on a woman he saw on a train. A colleague who cannot take rejection. A social media user who monitors and messages a woman despite her silence. Stalking, in all its forms, is the persistent, unwanted intrusion upon another's life. Until 2013, Indian criminal law had no specific offence covering it. Prosecutors had to reach for Section 354 IPC (outrage of modesty), Section 509 IPC (words to insult modesty), or general provisions on criminal intimidation, none of which fit the essentially cumulative and observational nature of stalking. The Criminal Law (Amendment) Act, 2013, added Section 354D IPC (now Section 78 BNS), giving stalking a specific criminal law identity. This module walks through the section, its two forms, its statutory exceptions, its interaction with the Information Technology Act, and its constitutional foundation in the right to privacy.

1. Introduction

Stalking in Indian law

Stalking is one of the most subtle and yet most damaging forms of violence against women. It does not require physical assault. It does not require explicit threat. It requires only the persistent, unwanted intrusion that makes the victim feel constantly watched, followed, and pursued. The Indian criminal law responded to stalking specifically only in 2013, with the addition of Section 354D IPC. The provision has been retained unchanged in the Bharatiya Nyaya Sanhita as Section 78.

The 2013 amendment and its rationale

Section 354D IPC was introduced by the Criminal Law (Amendment) Act, 2013, following the Justice J. S. Verma Committee's report in the aftermath of the Nirbhaya case. The Committee had observed that stalking was often the first stage in a pattern of escalating violence against women. Predators identify potential victims through persistent observation, gauge their vulnerability through repeated approaches, and escalate to physical assault when confidence permits. Criminalising stalking, the Committee argued, would allow the criminal law to intervene early, before the escalation to grave violence.

Stalking in the digital age

2. Meaning and Concept

The persistent nature of stalking

Stalking is essentially cumulative. A single approach, however unwelcome, is not stalking. What distinguishes stalking is the pattern: the repeated attempt to insert oneself into the victim's life despite her wish that the person not do so. The persistence is the essence of the offence. Any single incident may seem innocuous; the pattern is what makes it criminal.

Physical and cyber forms

Stalking takes two principal forms:

• Physical stalking: following the victim, waiting for her at specific places, appearing repeatedly at her workplace or residence, sending messages or gifts, or making phone calls.
• Cyber stalking: monitoring her online presence, sending unwanted messages through social media or email, tracking her location through digital means, or creating false profiles to observe her.

Section 78 BNS captures both forms.

The harm stalking causes

Stalking harms in ways that are often invisible to outside observers but deeply damaging to the victim:

• Loss of security. The victim never knows when the stalker will appear or what he will do. Ordinary movements become fraught.
• Loss of autonomy. The victim modifies her behaviour to avoid the stalker: changing routes, avoiding places, limiting social contact.
• Psychological harm. Continuous anxiety, sleep disruption, hypervigilance, and depression are common consequences.
• Risk of escalation. Studies of intimate partner violence indicate that stalking often precedes physical assault and, in some cases, homicide.

3. Historical Evolution

No specific IPC provision before 2013

Before the 2013 amendment, Indian criminal law had no offence titled stalking. Prosecutors reached for various provisions to cover stalking-like conduct: Section 354 IPC (assault to outrage modesty), Section 509 IPC (words to insult modesty), Section 503 IPC (criminal intimidation), and general provisions on trespass. None fit well. Section 354 required an assault or use of criminal force, which stalking often does not involve. Section 509 required intention to insult modesty, which stalking often lacks. Section 503 required a threat, which stalking often does not make explicit. The absence of a specific provision was a serious gap.

The Justice J. S. Verma Committee

The Justice J. S. Verma Committee, constituted in December 2012 after the Nirbhaya gang rape, recommended the criminalisation of stalking. The Committee observed that stalking was often the precursor to serious violence and that early criminal law intervention could prevent escalation. The Committee proposed the specific offence, its definition, its statutory exceptions, and its graduated punishment.

Introduction of Section 354D IPC and its retention in the BNS

The Criminal Law (Amendment) Act, 2013, added Section 354D IPC. The provision came into force on 3 February 2013. It has since been extensively applied, particularly in the aftermath of the #MeToo movement and the rise of cyber stalking. The Bharatiya Nyaya Sanhita, 2023, retains the provision unchanged as Section 78.

4. Section 78 BNS: Text and Analysis

Text of Section 78

The two forms of stalking

Section 78(1) identifies two forms:

• Clause (i): physical stalking. Following the woman and attempting to contact her repeatedly despite clear disinterest.
• Clause (ii): cyber stalking. Monitoring her use of the internet, email, or other electronic communication.

The two clauses cover distinct fact patterns. In many cases, both apply: a stalker follows the victim in person and also monitors her online. In such cases, the prosecution charges under both.

The statutory exceptions

Three exceptions may be pleaded by the accused. Each requires the accused to prove (not merely assert) the exception:

• Crime prevention: the accused was entrusted by the State with the responsibility of preventing or detecting crime, and the conduct was pursued for that purpose. This protects police officers, intelligence operatives, and similar functionaries in the discharge of their duties.
• Legal duty: the accused was pursuing the conduct under any law or to comply with any condition or requirement imposed by any person under any law. This protects legitimate investigation, court orders, and similar legal duties.
• Reasonable and justified: the accused proves that, in the particular circumstances, the conduct was reasonable and justified. This is a residual defence, permitting the court to consider individual circumstances that do not fall within the specific first two categories.

The burden of proof is on the accused. Once the prosecution establishes the ingredients of the offence, the accused must prove the exception.

Punishment structure

The graduated punishment reflects the legislative judgment that repeat stalking is significantly more serious. A stalker who has been convicted once and continues to stalk (whether the same victim or another) has demonstrated that the initial punishment did not deter him and that a stronger response is needed.

5. Physical Stalking under Section 78(1)(i)

Following the woman

Following, in the physical sense, includes any conduct that involves being in the same place as the woman without her consent. It may be by foot, by vehicle, or by other means. It may be at her workplace, her residence, or her regular routes of travel. It may be direct (walking behind her) or indirect (waiting at places she frequents). The essence is the physical intrusion upon her space.

Contacting or attempting to contact her

Contact includes any means of communication: phone calls, text messages, letters, notes, emails, or messages through third parties. Attempted contact includes conduct that would have resulted in contact but was interrupted or unsuccessful. Sending a message that the victim does not read is still an attempt to contact.

The repeated conduct requirement

Section 78(1)(i) requires that the following and contacting be repeated. A single incident is not stalking. What repeated means depends on the circumstances: two or three incidents in a short period may qualify; frequent incidents over a longer period certainly do. The repetition must indicate a pattern, not merely happen more than once by coincidence.

The clear indication of disinterest

Section 78(1)(i) requires that the woman have given a clear indication of disinterest before the conduct qualifies as stalking. What constitutes a clear indication depends on the circumstances:

• Express words: a direct statement that the woman does not wish to be contacted, followed, or engaged with. This is the clearest indication.
• Ignoring communications: repeatedly failing to respond to messages or calls is often treated as a clear indication of disinterest in modern cases.
• Blocking on communication platforms: blocking the accused on social media, messaging apps, or email is a clear indication.
• Physical avoidance: crossing the street, changing seats, leaving a place, or otherwise avoiding the accused is a clear indication when combined with other conduct.

6. Cyber Stalking under Section 78(1)(ii)

Monitoring electronic communication

Section 78(1)(ii) covers the monitoring of a woman's use of the internet, email, or any other form of electronic communication. Monitoring includes:

• Tracking her social media activity: reviewing her posts, comments, likes, and other public activity, particularly when repeated systematically.
• Reading her messages or emails: whether by unauthorised access, by having gained the password through a former relationship, or by any other means.
• Following her location through digital means: tracking her through apps, GPS, or metadata.
• Creating false profiles to observe her: setting up accounts under false names to gain access to her online activity.

Modes of cyber stalking

Application in the era of social media

Cyber stalking has become perhaps the most common form of stalking in the twenty-first century. Cases such as Nikhil Sonu Fake v. State of Maharashtra, (2020) Bombay HC, have applied Section 354D IPC to repeated unwanted messages through social media. The judiciary has been willing to interpret monitoring broadly to include this range of conduct.

7. Statutory Exceptions

Crime prevention

The first exception protects law enforcement. A police officer investigating a suspected crime may follow or observe a woman in the ordinary course of duty. Undercover operations, surveillance, and similar techniques are protected. The exception requires that the accused be entrusted with the responsibility (not merely claim it), and that the conduct be pursued for the purpose of preventing or detecting crime.

Legal duty or condition

The second exception protects those who follow or observe a woman under a legal obligation. A process server serving legal papers on her, a private investigator engaged pursuant to a legally valid court order, or a person seeking to comply with a court-ordered maintenance provision may all fall within this exception. The requirement is that the conduct be under a law or a legally imposed condition.

Reasonable and justified conduct

The third exception is the most flexible. It permits the accused to argue that, in the particular circumstances, his conduct was reasonable and justified. Examples might include:

• A journalist investigating a matter of public interest, subject to the ethical constraints of legitimate journalism.
• A person acting to prevent immediate harm (though this may also fall under general defences).
• A person continuing to attempt contact in a circumstance where the disinterest was ambiguous or the situation genuinely called for engagement.

The burden on the accused is significant. Mere assertion of reasonableness is not enough; specific facts must be proved.

8. Punishment Structure

Section 78 does not prescribe a mandatory minimum. The court has discretion to award any sentence up to the maximum. In practice, first offences often attract sentences at the lower end (six months to a year), particularly where the stalking was cyber rather than physical and where the accused was young. Repeat offences and physical stalking with escalation attract higher sentences.

9. The IT Act, 2000 Framework

Section 66E IT Act: violation of privacy

Section 66E of the Information Technology Act, 2000, punishes the intentional or knowing capture, publication, or transmission of the image of a private area of any person without consent. Where cyber stalking involves capturing images of the victim without her consent (surveillance photographs, intimate images), Section 66E may apply alongside Section 78 BNS.

Section 67 IT Act: obscene material

Section 67 IT Act punishes the publication or transmission of obscene material in electronic form. Where a stalker sends the victim obscene material through electronic means, Section 67 applies alongside Section 78. Punishment: first conviction up to three years and fine up to five lakhs; subsequent conviction up to five years and fine up to ten lakhs.

Overlap with Section 78 BNS

10. Interaction with Other Laws

Domestic Violence Act, 2005

Where the stalking is by a current or former intimate partner, the Protection of Women from Domestic Violence Act, 2005, may apply. The Act's definition of domestic violence includes verbal and emotional abuse, and repeated unwanted contact can qualify. The Act's civil remedies (protection orders, residence orders, monetary relief) supplement the criminal prosecution under Section 78 BNS.

POSH Act, 2013

Where the stalking occurs at the workplace or is committed by a colleague or superior, the POSH Act, 2013, may apply. The Act's definition of sexual harassment includes any unwelcome physical, verbal, or non-verbal conduct of sexual nature, and stalking often qualifies. The Internal Committee mechanism operates in parallel with the criminal prosecution.

Protection of Women from Violence Act

Where the stalking is part of a pattern of violence, various civil law remedies are available. Injunctive relief, protection orders, and criminal complaints can be pursued in parallel. The multi-track approach ensures that the victim has multiple avenues of protection, including immediate civil relief and criminal punishment of the perpetrator.

11. Constitutional Framework

Puttaswamy: right to privacy

Freedom of movement and association

Article 19(1)(d) guarantees the right to move freely throughout India. Article 19(1)(c) guarantees the right to form associations. Stalking violates both: it inhibits the victim's freedom of movement (through fear of encountering the stalker) and her freedom of association (through the stalker's intrusion into her social relationships). The criminal law of stalking is thus not only a protection against private violence but a defence of constitutional freedoms.

The state's affirmative duty

The Constitution imposes an affirmative duty on the state to protect fundamental rights, including protection against private violations. This duty is reflected in the state's obligation to enact laws against stalking, to prosecute offenders effectively, and to provide procedural mechanisms accessible to victims. Where the state fails in this duty (through delayed FIR registration, ineffective investigation, or lax prosecution), it may itself be liable in constitutional and administrative law.

12. Judicial Elaboration and Landmark Cases

13. Comparative Law Perspective

14. Consolidated Landmark Judgments

• Justice K. S. Puttaswamy v. Union of India, (2017) 10 SCC 1. Privacy as fundamental right. Constitutional foundation for anti-stalking law.
• State v. Amit Kumar Singh, Delhi Trial Court (2018). Early conviction under Section 354D IPC. Physical stalking.
• Nikhil Sonu Fake v. State of Maharashtra, (2020) Bombay HC. Cyber stalking through social media. Blocks as clear indication of disinterest.
• Anuja Kapur v. Union of India, (2020) SCC OnLine Del 1200. Procedural strengthening for stalking complaints.
• Rakesh v. State of Uttarakhand, (2019) Uttarakhand HC. No explicit threat required. Pattern of conduct is enough.
• Shri Kishan v. State (NCT of Delhi), (2018) Delhi HC. Burden on the accused for statutory exceptions.
• State of West Bengal v. Rasenlal Singh, (2019) Calcutta HC. Following on public transport where the pattern indicates specific criminal purpose.
• Vaishakhi v. State of Karnataka, (2020) Karnataka HC. Cyber stalking through creation of false social media profiles.
• Rupan Deol Bajaj v. K. P. S. Gill, (1995) 6 SCC 194. Predecessor case on unwanted conduct against women. Modest offence not trivial.
• Vishaka v. State of Rajasthan, (1997) 6 SCC 241. Foundational case on protection of women from unwelcome conduct at workplace.
• Deepika Padukone v. Chief Editor, Times of India, (2014) Bombay HC. Application of criminal law to invasive photography and repeated unwanted attention on public figures.
• Aparna Bhat v. State of Madhya Pradesh, (2021) 3 SCC 407. Guidelines against victim blaming, applicable to stalking prosecutions.

Frequently Asked Questions

What is Section 78 BNS?

Section 78 of the Bharatiya Nyaya Sanhita, 2023 (formerly Section 354D IPC), criminalises stalking. It covers two forms: (i) physical stalking, following a woman and attempting to contact her repeatedly despite clear disinterest; and (ii) cyber stalking, monitoring her electronic communication. Punishment: first conviction up to three years and fine; subsequent conviction up to five years and fine.

What is the difference between physical stalking and cyber stalking under Section 78 BNS?

Physical stalking under Section 78(1)(i) requires actually following the woman and attempting to contact her repeatedly. It typically involves being in physical proximity. Cyber stalking under Section 78(1)(ii) covers monitoring her use of the internet, email, or any electronic communication. This may include repeated unwanted messages, tracking her social media, or creating false profiles to observe her. Both forms are equally serious under the section.

What are the statutory exceptions to stalking under Section 78 BNS?

Three exceptions: (i) conduct pursued for the purpose of preventing or detecting crime by a person entrusted with such responsibility by the State (protects law enforcement); (ii) conduct pursued under any law or to comply with any condition or requirement imposed by any person under law (protects legal duties); (iii) conduct that in the particular circumstances was reasonable and justified (residual defence). The burden is on the accused to prove the exception.

What constitutes a clear indication of disinterest under Section 78(1)(i)?

The section does not define clear indication. Judicial interpretation has included: express words that the woman does not wish to be contacted; repeatedly ignoring communications; blocking the accused on social media, messaging apps, or email; and physical avoidance combined with other conduct. The essence is that a reasonable person would understand from the woman's conduct that she does not wish to engage with the accused. Once given, further attempts to contact her cross into stalking.

Can cyber stalking be prosecuted under the IT Act as well?

Yes. Section 66E of the Information Technology Act, 2000, punishes the capture, publication, or transmission of the image of a private area without consent. Section 67 IT Act punishes obscene material in electronic form. Where cyber stalking involves either kind of conduct, the IT Act provisions apply alongside Section 78 BNS. In practice, prosecutions often charge both to ensure the full range of conduct is captured.

Does Section 78 BNS require an explicit threat?

No. The section does not require the accused to have threatened the victim. Persistent unwanted contact and monitoring, despite clear disinterest, is enough. This is a significant departure from the traditional criminal intimidation framework (Section 351 BNS), which requires a threat. Rakesh v State of Uttarakhand, (2019) Uttarakhand HC, held that no explicit threat is required and that the pattern of conduct is itself the offence.

Related Topics on The Legal Bridge

For a fuller picture, read these companion notes on adjacent doctrines and provisions:

• Sexual Offences Against Women under BNS: overview of Chapter V including the offences that often accompany stalking.
• Voyeurism under Section 77 BNS: the observational offence that often coexists with stalking.
• Sexual Harassment: Section 75 BNS and POSH Act as parallel regimes for workplace stalking.
• Rights of the Accused: constitutional protections including Article 21 privacy as established in Puttaswamy.