In her seminal essay, “Can the Subaltern Speak?”, Gayatri Chakravorty Spivak discusses the reproduction of silence by refusing to recognise certain forms of speech or experience. Indian stalking law mimics this silencing. A pronouncement by the Himachal Pradesh High Court in Krishnan Kumar Kasana vs State of Himachal Pradesh is illustrative in this context. While deciding an anticipatory bail application filed by the accused, the court, while elaborating on the scope of ‘stalking’ in Section 78 of the Bharatiya Nyaya Sanhita, stated that the only allegation is that the petitioner (accused) had taken photographs of the informant’s wife. Prima facie, these allegations, it was deduced, do not satisfy the definition of stalking.
The interpretation of the court’s opinion evokes the same interpretive anxieties that have plagued Section 354D of the Indian Penal Code. Irrespective of how invasive they are, certain acts do not meet the statutory threshold of stalking in India. In December 2024, the Nagpur Bench of the Bombay High Court in Amit Chavan vs State of Maharashtra had insisted that stalking under Section 354D requires repetition, tying up criminal liability to the number of intrusions rather than its impact.
The insertion of Section 354D in the IPC and its reincarnation as Section 78 of the BNS were born out of public outrage in the aftermath of the Nirbhaya case. On paper, it was meant to serve as a deterrent. In reality, the law continues to be oblivious to the lived experience that a single invasive act, whether following, photographing or unsolicited pursuit, can be enough to instil fear and insecurity. By tethering stalking to repetition, it denies recognition to the first act of violation and places the burden on women to endure further harassment before the law will listen.
Stalking is a crime of escalation, often beginning with what society dismisses as minor harassment. After the Nirbhaya case, the Justice J.S. Verma Committee had warned that “preventive measures for the initial minor aberrations are necessary to check their escalation into major sexual aberrations”. The logic of criminalisation of stalking is not simply punitive but is inherently preventive. Yet the present framework is not preventive in its entirety. The lack of a clear and swift ‘no-contact injunction’ at the instance of stalking leaves the police and the court with a blunt choice: to wait for repetition or force the victim into a sluggish and high-threshold criminal process.
The legislative blind spot is ostensible as the menace of stalking in India has grown sharply in the digital age. Stalkers no longer only lurk at street corners but live
in smartphones, spywares, GPS tags and burner accounts. The National Crime Records Bureau’s statistics of 2023 state that around 10,495 cases of stalking were registered in India; many must have gone unreported. The conviction rate has been abysmally low, around 21.3%. The weakness is baked into the language of the law, which is still fixated on counting incidents rather than measuring impact.
In the United Kingdom, the response to stalking as an offence was a deliberate legislative conversation between principle and precision. The Protection from Harassment Act 1997 criminalised “course of conduct” that causes alarm or
distress. Subsequently, Section 2A of The Protection of Freedoms Act of 2012 criminalised stalking as an offence based on the course of conduct while Section 4A deemed it an aggravated offence that turned the inquiry from repetition to the impact of stalking.
The precedents set by the Himachal Pradesh High Court and the Bombay High Court expose the legislative blind spot with stark clarity. Such precedents do not merely expose the weakness of law; they calcify it, narrowing the scope of an already inadequate framework. The legal grammar of silence is the fact that the first encounter with the predatory conduct or where the fear or intimidation was born remains invisible in both law and in judicial precedents.
Rishav Sharma is a legal practitioner and a freelance writer