A Delhi district court last week dealt with a case of voyeurism by awarding the accused with a year’s simple imprisonment along with a fine of ten thousand rupees. A point of interest was the characterisation of the offence of voyeurism under Section 354C of the Indian Penal Code in terms of privacy, in the latter part of the judgment. Authored by Justice Susheel Bala Dagar, the portion in question reads:

“Voyeurism is a ridiculous form of enjoyment for men but a mental torture for women. Men who indulge in such enjoyment do not seem to realize that they are infringing on the fundamental right to privacy of her body of the woman. Due to such offenders the women do not feel safe inside such places where she would usually expect not to be observed.”

The offence of voyeurism under the section is defined as “watching, or capturing the image of a woman engaging in a private act in circumstances where she would usually have the expectation of not being observed either”. The application of the right to privacy here employs the conventional understanding of “the right to be left alone”. The Indian Supreme Court has upheld the right to privacy of the person as the right to be left alone, and has read it into Article 21 of the Constitution which guarantees the right to life, which it did in the famed Auto Shankar case.

This conception of the right to privacy was famously expounded in one of the first pieces of academic writing to argue for the existence of a right to privacy. Simply titled ‘The Right to Privacy’, the article was one written by Samuel Warren and Lois Brandeis, the latter of whom would go on to become a judge in the Supreme Court of the USA. This conception of the right to privacy was later transformed into a legal principle through application in American tort law. It encapsulates the relevant aspect of the right as ‘intrusion upon seclusion’, which is said to occur when a person “intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns”.

The case in question dealt with a 19 year old male peeping into a lavatory whilst in use by a woman. Along with the conception of privacy as described by Warren and Brandeis, the judge also mentions the aspect of being in a place “where she would usually not expect to be observed”. Indeed, even if a potential victim occupies a public place, it has been made clear in a number of later judgments such as Nader v. General Motors Corporation, that a person does not automatically make public everything that they might do in a public space. The point is however moot, as the facts involve circumstances that are clearly more grave and fall clearly into the mischief of the section as described in the Penal Code.

An encouraging thread observable in the District Court judgment was the focus on the activities of the defendant, as opposed to those of the complainant, as is seen to be the case in so many analyses of crimes against women. The judge does make it a point to question the defendant on his lack of a reaction if his alleged unprovoked slap by the complainant was in fact true. This apart, she also points out that the objective of the punishment in this case is not merely to make an example of the accused for the cause of deterrence. The larger objective is to reduce the amount of crimes committed against women, and reformative action forms part of this agenda. To once again quote the judgment,

“The seriousness of the offence lies not in the extent of punishment it carries but on the impact, it has on the social psyche and public order. A societal change is required via education and awareness to curb such kind of crimes. Also, there is a need for formulation and implementation of policies by the government to create sensitization of the masses, more so, the youth in schools and colleges towards the need for gender equality…”

It is extremely heartening to see an example of judicial decision making at the Trial Court level displaying the breadth of vision to not fall prey to the practice of inflicting retributive justice, and more importantly to lend a voice to the articulation of the right to privacy in India. The right to bodily privacy in an enclosed space is one of the basic forms of privacy that can be asserted by an individual, prior to norms of data security in technology, and it is imperative that such a right is clarified in Indian jurisdictions so as to enable further jurisprudence to engage with the larger questions in the field of privacy.

Photo by kellinahandbasket, Flickr. CC License 2.0 Generic.