Understanding Section 78 of the Bharatiya Nyaya Sanhita: Laws on Stalking in India

 

Introduction

In today's digital age, stalking has become a serious issue in both physical and online spaces. Recognizing the growing concern, Indian law has made efforts to define and criminalize stalking under clear legal provisions. With the introduction of the Bharatiya Nyaya Sanhita (BNS) in 2023, the laws surrounding stalking have been reframed and codified under Section 78. This article explains the meaning, legal provisions, punishments, exceptions, and significance of Section 78 of the BNS in a simple and clear way.

What is Stalking?

Stalking refers to repeated and unwanted attention by one person towards another. This attention can come in various forms—following someone physically, monitoring their movements, repeatedly contacting them despite being asked to stop, or using social media to track or harass someone. The key element of stalking is persistence without consent, often leading to fear, mental stress, and invasion of privacy.

Earlier, stalking was covered under Section 354D of the Indian Penal Code (IPC). However, with the introduction of the BNS, this has now been replaced and defined more clearly under Section 78.

Legal Definition under Section 78 of BNS

Section 78 of the Bharatiya Nyaya Sanhita defines stalking in the following way:

A man is said to commit the offence of stalking if he—

1. Follows a woman and contacts, or tries to contact her repeatedly, despite a clear indication of disinterest by her.
   
   

2. Monitors the use of internet, email, or any other form of electronic communication by a woman without her consent.
   
   

The law specifically targets men stalking women, highlighting the gender-based nature of this offence in the Indian context.

Essential Ingredients of the Offence

To understand Section 78 better, it is important to look at its essential elements:

• The offender must be a man.
  
  

• The victim must be a woman.
  
  

• The act must be repeated and unwanted.
  
  

• There must be a clear indication of disinterest by the woman.
  
  

• The stalking can be both physical (following) or digital (online tracking).
  
  

This shows that the law recognizes not only physical stalking but also cyberstalking, which has become more common with the rise of smartphones and social media.

Punishment under Section 78 of BNS

Section 78 also lays down clear punishments for those found guilty of stalking:

• For the first offence: Imprisonment up to three years, and fine.
  
  

• For a second or subsequent offence: Imprisonment up to five years, and fine.
  
  

This shows that the law is stricter for repeat offenders. It treats stalking as a serious and punishable offence, aiming to act as a deterrent.

Is Stalking a Cognizable and Bailable Offence?

Yes. As per Section 78:

• The first offence is cognizable and bailable. This means that the police can arrest the accused without a warrant, but he may be released on bail.
  
  

• A second or subsequent offence is cognizable and non-bailable, showing increased seriousness in repeated behaviour.
  
  

This structure is designed to balance the rights of both the accused and the victim, while ensuring the law takes progressive steps to protect women.

Exceptions under Section 78

The law also lists certain exceptions, where the act of stalking does not amount to a criminal offence. These include:

1. If the act is done to prevent or detect a crime.
   
   

2. If the act is under any law or legal obligation.
   
   

3. If it is carried out with reasonable and justified grounds by authorized personnel.
   
   

These exceptions ensure that law enforcement or investigative work does not get wrongly interpreted as stalking.

Cyberstalking: An Emerging Threat

Cyberstalking is a growing concern in India, especially with the rise in internet usage and smartphone access. Many women face harassment through:

• Repeated messaging on social media
  
  

• Sending inappropriate emails
  
  

• Tracking online activity
  
  

• Creating fake profiles to monitor or defame
  
  

Section 78 of BNS is significant because it clearly includes digital acts of stalking. This helps address crimes committed in the virtual world, making the law more relevant to modern-day problems.

Why Section 78 is Important

Stalking is often the first step in a cycle of harassment that can escalate into more dangerous acts like assault, blackmail, or even physical violence. By criminalizing stalking early, Section 78 helps in:

• Protecting women's right to privacy
  
  

• Preventing potential crimes
  
  

• Deterring harassers from repeat behaviour
  
  

• Empowering victims to take legal action early
  
  

This section of law also reflects a shift in society—acknowledging women's personal space, autonomy, and freedom.

Case Laws Related to Stalking in India

Here are some important cases where courts have addressed stalking:

• Kartar Singh v. State of Punjab: Emphasized that stalking can severely affect a woman’s mental peace and dignity.
  
  

• Ritika Tiwari v. State of Delhi: Highlighted how digital forms of stalking need serious attention and legal remedy.
  
  

• Shafiq Ahmed v. State: The Delhi High Court noted that repeated messaging and following a woman despite warnings falls under the definition of stalking.
  
  

These cases helped shape how courts interpret stalking and apply punishment.

How Can Victims Protect Themselves?

Victims of stalking should take the following steps:

• Report to the police immediately under Section 78 of BNS.
  
  

• Keep a record of all incidents, messages, calls, or social media harassment.
  
  

• Seek help from family, friends, or legal aid organizations.
  
  

• Block and report the offender on social platforms.
  
  

• Use legal tools such as restraining orders or court protection.
  
  

The law is on the side of the victim, and awareness of rights is the first step toward justice.

Conclusion

Section 78 of the Bharatiya Nyaya Sanhita is a much-needed legal tool to address the widespread issue of stalking in India. By defining both physical and online stalking as punishable offences, and providing clear punishments, the law aims to safeguard women’s freedom and mental peace. As society becomes more aware of personal rights and digital threats, such legal protections become essential.

Every citizen, especially women, must be aware of these legal rights. At the same time, the justice system must ensure swift action, fair investigation, and strict punishment against offenders. Only then can stalking be effectively prevented, and the right to live with dignity be fully protected.