Guest Post: On 354C IPC — An Inadequate Provision to Combat Voyeurism?

(This is a guest post by Ritu Bhatia and Manas Agrawal)

Voyeurism is commonly understood to mean the act of watching someone secretly while the person is engaged in a private act. The harms caused by instances of voyeurism include humiliation, breach of trust and privacy, increased risk of sexual violence, ramifications on professional and personal relations, among others. Thus, it is vital to have an adequate provision penalising such conduct. In India, voyeurism can be the basis of civil action, and is criminalised under s. 354C of the Indian Penal Code, 1860 [“IPC”] and s. 66E of the Information Technology Act, 2000 [“IT Act”]. 

The former provision is what occupies our attention in this post. We argue that this provision is grossly inadequate to cover many different situations in which voyeurism can take place. Our focus will be on the concept of “private act” in the definition of the offence as provided today. We do not engage in detail with Section 66E of the IT Act, but suffice to state that while that clause is certainly broader in scope than Section 354C IPC, it is not comprehensive and may yet fail to cover certain scenarios.   

The Provision

Section 354C was enacted on the recommendation of Justice Verma Committee. While there are some differences between the enacted provision from what was recommended, Explanation 1 to Section 354C is materially similar to the recommended definition of ‘private act’ in the Verma Committee Report. 

As per Explanation 1, for anything to qualify as a ‘private act’, there are two conditions that must be met. Firstly, there must be ‘reasonable expectation to provide privacy’. Secondly, there must be an exposure of victim’s genitals, posterior or breasts or covered only in underwear; or using of lavatory or engaged in sexual act. These two conditions are dealt with in segments I and II of the Post. We also briefly compare this definition with its counterpart in Section 66E of the IT Act. 

I. ‘Engaging in private act’ 

Section 354C states in material part that “Any man who watches… a woman engaging in a private act in circumstances where she would usually have the expectation of not being observed …” (Emphasis supplied). A literal interpretation of “engaging in private act” conveys that the woman is actively and consciously carrying out a private act. This requirement of active engagement makes ‘private act’ where an expectation of privacy could arise as narrow, excluding various instances of voyeurism. For instance, consider a situation where P has installed cameras underneath tables at a cafe that allow him to see up the skirts of women and capture them. This act will not be voyeurism under Section 354C because she was at a café drinking coffee and not ‘engaged in a private act’. 

P cannot be charged under Section 354C IPC; however, he can be charged under Section 66E of the IT Act because it does not require an ‘engagement in private act’. What is needed is that the image of the private area must be captured without consent. Furthermore, the Explanation(e)(ii) to s. 66E defines “under circumstances violating privacy” such that a person can expect that his/ her private parts are not visible in public places as well. Thus, though the woman was in a public place it will still be covered under circumstances where privacy must be respected. It will be reasonable for a woman to expect that while she is in a cafe, her private areas are not visible.

[Note, though, that if there is no capturing of an image but say, merely using a mirror to observe the underskirt area, then the conduct may go unpunished even under the IT Act]

II. Exposure of body parts 

The second condition for ‘private act’ is that there must be an exposure of victim’s genitals, posterior or breasts or covered only in underwear [A]; or using of lavatory [B] or engaged in sexual act not ordinarily done in public[C]. Thus, for the fulfilment of the second condition any among A, B or C must be satisfied. 

Coming to Part A, we argue that it requires mandatory exposure of the genitals, posterior or breasts; or there being covered only in underwear. The word ‘exposed’ as per Cambridge Dictionary means “not covered or able to be seen”. Thus, there must either be a complete exposure, i.e., not covered in any clothing of any of the three body parts [1] or the genitals or posterior must be covered only in underwear [2]. 

The implication of [1] is it does not cover situations where there was no exposure of other two parts but breasts are visible partially. For example; V, a woman, is breastfeeding her newborn baby in a baby care section in a shopping mall, where she has a tthereasonable expectation of not being observed. Now D, a man, had installed a camera in the room and is watching and capturing images. The breasts were only partially visible as some parts were covered. Will this be penalised under s. 354C of the IPC? The answer is no because the breasts were not ‘exposed’; thus, the act was not a private act as per Explanation 1. It may yet be penalised under s. 66E IT Act because there the capturing of private area is not qualified by ‘exposed’. 

Sub-part A can also be satisfied if [2] is satisfied. The usage of the word ‘underwear’ has caused difficulties in the UK and might also be a point of contention as the jurisprudence on voyeurism develops in India. Let us consider an illustration: M, a woman wearing a bikini, has gone to the changing room of the swimming pool club. N, a man, had placed a camera in that changing room. However, he was only able to capture the picture of the woman wearing the bikini. 

The question that arises is whether the term ‘underwear’ includes ‘swimwear’. A UK Court had answered this question in Police Service for Northern Ireland v. MacRitchie. and it held that the context is what mattered. It was stated that if a swimwear bottom is used as underwear and then a woman is photographed in circumstances where there was a reasonable expectation of privacy, it will be voyeurism (See, this paper for a discussion). Consequently, for the above facts, the court held that N was wearing a bikini as swimwear and not underwear at the relevant time and, thus, N could not be charged with voyeurism.

A similar reasoning may be used by Indian courts because Explanation 1 of s. 354C IPC is taken from s. 68 the Sexual Offence Act, 2003 [SOA]. We would argue that adopting this line of reasoning would be flawed and would further water down the already limited scope of Section 354C IPC. The following two examples will illustrate the oddness and absurdity of this reasoning. 

1. R, a woman, is going to the beach and for convenience wears a skirt over her bikini. She thought she will discard the skirt when she goes for swimming. 

2. S, a woman, is going to her laundry and since she has no spare underwear, she wears her bikini bottoms.

Now in both these situations, consider that while going to their destination they get engaged in private act with a reasonable expectation of privacy and their bikini bottom covered genitals are exposed. T, a man, observed it and managed to capture it. Now as per the reasoning of the UK Court in MacRitchie, T will be penalised under s. 354C in the second example and not the first one. In both the examples, T observed and captured the same thing but the only difference was in the intentions of the two women. R used the bottom as swimwear and S used it as underwear. Even if we consider Section 66E, the first situation may not be penalised. That provision uses the words “undergarment clad genitals” and undergarment means ‘a piece of underwear’ as per the Cambridge Dictionary. Thus, the same reasoning will follow. 

Though in both the situations, the privacy of the woman is comprised, but only one gets justice. This shows that the provisions criminalising voyeurism are inadequate.

Concluding Remarks 

Section 354C was added to the IPC on the recommendation of Justice Verma Committee for the prevention of initial minor deviance that would prevent the escalation of a major sexual offence. However, Explanation 1, which defines ‘private act’, is very restrictive and ends up excluding many instances which would otherwise constitute voyeurism. Though many of these instances get covered in the IT Act, that statute also does not criminalise the act of ‘watching’, leaving the scope for several kinds of offending conduct to go unpunished.

What is needed is a definition of ‘private act’ which criminalises the perpetrator’s actions and does not put the onus on the woman to actively ‘engage’ in a private act or ‘expose’ certain parts. To adequately cover the different instances of voyeurism a provision similar to Section 67 and 67A of the Sexual Offences Act must be adopted that also criminalise upskirting. Additionally, an approach that was followed in West Bengal v. Animesh Box, ought to be mandated. The court here along with imprisonment and fine under Section 354C IPC ordered that the victim should be treated as a rape survivor and provided compensation. Considering the harm caused, it will play an important role in assuaging the victim’s difficulties.