An Australian lawyer has successfully argued that his client, a 32-year-old Indian-origin security guard who emigrated to Tasmania three years ago, should not go to jail for up to five years for stalking a woman, because Bollywood movies had taught him that pursuing a woman hard enough could make her fall in love with a man, reported ABC.

According to ABC, Tasmania magistrate Michael Hill heard from Sandesh Baliga's lawyer Greg Barns, that it was “quite normal behaviour” for Indian men to pursue women in a way that could count constitute a criminal offence of stalking in Australia.

Baliga had stalked two women between 2012 and 2013 – one for 18 months and another for four months. The Times of India had re-reported in July 2014 that he had been texting, calling and approaching the women “excessively” after prior one-off chance encounters.

While the judgment was not available online, ABC reported that Hill agreed that Baliga may not have appreciated the seriousness of his actions because of his cultural background.

Hill “after anxious consideration”, did not convict Baliga on the condition that he would be of good behaviour over the next five years, because the security guard had entered a guilty plea, sparing the women the stress of testifying, and that Baliga had stopped rinking, which had been a contributory factor.

The actual law

Ironically, Indian anti-stalking laws are now stricter than Tasmanian laws since India’s 2013 criminal amendments, which followed the 2012 gang-rape of a woman in Delhi.

The main difference, in a nutshell, is that under Indian law there is no requirement of mens rea – a guilty mind - whereas in Australia, the stalker ought to have anticipated that his action would cause another person apprehension.

As such, the same defence that worked with the Australian magistrate, would not have worked in India, where it is irrelevant whether a man was or claimed to have been ignorant of the fact that his behaviour made his target(s) uncomfortable.

Under Tasmanian law a person can be guilty of stalking if “if at the relevant time the person knew, or ought to have known, that pursuing the course of conduct would, or would be likely to, cause the other person physical or mental harm or to be apprehensive or fearful”.

In India, it is enough for a man to follow a woman, or attempt to contact her to to foster personal interaction repeatedly despite a clear indication of disinterest by such woman”, resulting “in a fear of violence or serious alarm or distress in the mind of such woman, or interferes with the mental peace of the woman”.

Under the Tasmanian Criminal Code Act 1924, section 192, stalking is:

(1) A person who, with intent to cause another person physical or mental harm or to be apprehensive or fearful, pursues a course of conduct made up of one or more of the following actions:

(a) following the other person or a third person;

(b) keeping the other person or a third person under surveillance;

(c) loitering outside the residence or workplace of the other person or a third person;

(d) loitering outside a place that the other person or a third person frequents;

(e) entering or interfering with the property of the other person or a third person;

(f) sending offensive material to the other person or a third person or leaving offensive material where it is likely to be found by, given to or brought to the attention of the other person or a third person;

(g) publishing or transmitting offensive material by electronic or any other means in such a way that the offensive material is likely to be found by, or brought to the attention of, the other person or a third person;

(h) using the internet or any other form of electronic communication in a way that could reasonably be expected to cause the other person to be apprehensive or fearful;

(i) contacting the other person or a third person by postal, telephonic, electronic or any other means of communication;

(j) acting in another way that could reasonably be expected to cause the other person to be apprehensive or fearful –

is guilty of a crime.

(2) For the purposes of subsection (1)

(a) a person pursues a course of conduct if the conduct is sustained or the conduct occurs on more than one occasion; and

(b) if the conduct occurs on more than one occasion, it is immaterial whether the actions that make up the conduct on one of those occasions are the same as, or different from, the actions that make up the conduct on another of those occasions.

(3) A person who pursues a course of conduct of a kind referred to in subsection (1) and so causes another person physical or mental harm or to be apprehensive or fearful is taken to have the requisite intent under that subsection if at the relevant time the person knew, or ought to have known, that pursuing the course of conduct would, or would be likely to, cause the other person physical or mental harm or to be apprehensive or fearful.

In India, under the 2013 Criminal Law Amendment Act, section 354D, stalking is defined as:

(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, email or any other form of electronic communication; or   

(iii) watches or spies on a woman in any manner, 

that results in a fear of violence or serious alarm or distress in the mind of such woman, or interferes with the mental peace of the woman, 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 with imprisonment  of either description for a term which shall not be less than one year but which may  extend to five years, and shall also be liable to fine.’.