Harassment and Stalking: Key Differences

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In today’s world, Harassment and stalking are crimes that have become rampant with numerous cases filed, especially by women, claiming to be stalked or harassed. While both involve behaviors that cause distress or fear to the victim, there are certain differences between them. In this article, we will define harassment and stalking under the new criminal law, Bharatiya Nyaya Sanhita, 2023 (BNS), and discuss the key differences between harassment and stalking with the help of parameters.  

Harassment

The term ‘harassment’ generally means to annoy or intimidate another person persistently. It has evolved over time to take new forms and has mocked the physical, sexual, and online lives of an individual. According to the Merriam-Webster Dictionary, harassment is defined as an act “to create an unpleasant or hostile situation, especially by uninvited and unwelcome verbal or physical conduct.” It can take various forms such as verbal, physical, cyber, or sexual harassment, and can occur in the workplace, online platforms, schools, etc. Harassment causes mental distress, anxiety, irritability, lack of confidence, isolation, depression, and other psychological effects. It can include making offensive remarks and infringing on a person’s privacy. In Indian law, harassment is criminalized under Section 354A of the Indian Penal Code, 1860 (IPC), which as per the new criminal law, the Bharatiya Nyaya Sanhita, 2023, is defined under Section 74(1). It states that “A man committing any of the following acts-

• Physical contact and advances involving unwelcome and explicit sexual overtunes; or
• a demand or request for sexual favors; or
• showing pornography against the will of a woman; or
• making sexually colored remarks,”

should be guilty of the offence of sexual harassment. This section was primarily added to penalize the offence of sexual harassment of women. 

Stalking

Stalking is a pattern of unwanted contact or behavior that causes someone to feel upset, anxious, or scared for safety. It involves repeated and willful following, monitoring someone’s actions, and contacting someone despite a clear indication of disinterest leading to a reasonable fear of personal safety or violence. According to Section 77(1) of the BNS, 2023, stalking is defined as “Any man who-

• 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
• monitors the use by a woman of the internet, e-mail or any other form of electronic communication”

commits the offence of stalking. It also highlights certain exceptions that such conduct should not amount to stalking if the man who pursued it proves that it was pursued to prevent or detect crime, and was pursued under any law or to comply with any condition imposed by a person under the law. In the past few years, cybercrime has provided a new platform to stalk people. The tech-savvy stalkers make use of electronic devices to gather private information about the person they want to stalk and send emails, and messages on social media applications. The victims of stalking may suffer from sleep disturbances, gastrointestinal problems, self-doubt, Post-Traumatic Stress Disorder (PTSD), and other health issues. Considering the seriousness of the issues, provisions that deal with stalking are mentioned in the Indian criminal justice system. 

Key Differences Between Harassment and Stalking

Certain parameters that highlight the key differences between harassment and stalking include intent, behavior, impact, and punishment. These are elaborated as follows:

Provision under IPC and BNS

• Harassment: It is defined under Section Section 354A of the IPC and Section 74(1) of the BNS.
• Stalking: It is defined under Section Section 354D of the IPC and Section 77(1) of the BNS.

Behavior

• Harassment: It involves a single incident or a series of incidents that may or may not be connected.
• Stalking: It is a pattern of repeated and persistent behavior over some time, often interconnected that indicates an obsession with the victim. 

Intent

• Harassment: To disturb, annoy, or intimidate the victim by engaging in offensive conduct, actions that infringe privacy, or initiate unwanted communication with the victim. 
• Stalking: To establish a connection with the victim often with a romantic or sexual motive. It causes fear (fear of either death, assault, bodily injury, kidnapping, property damage, hurting family members, or criminal sexual contact), mental anguish, or apprehension in the victim.

Degree of Crime

• Harassment: It is considered a misdemeanor. 
• Stalking: It is considered a felony.

Impact

• Harassment: It causes emotional distress, anxiety, or fear in the victim.
• Stalking: It causes a higher level of emotional distress, anxiety, or fear due to a sense of being watched or monitored constantly. It may result in death or leave lasting scars on the victim’s life.  

Reasonable Fear

• Harassment: It causes distress but does not lead to a reasonable fear for the victim’s safety or life.
• Stalking: It creates a reasonable fear in the victim regarding their safety or their loved ones. 

Punishment

• Harassment: Any man who commits the offence, Physical contact and advances involving unwelcome and explicit sexual overtunes; or a demand or request for sexual favors; or showing pornography against the will of a woman; Should be punished with rigorous imprisonment for a term extending to 3 years, or with a fine, or with both (Section 74(2) of the BNS). Any man who commits the offence, of making sexually colored remarks should be punished with imprisonment for a term which may extend to 1 year, or with a fine, or with both (Section 74(3) of the BNS).
• Stalking: Whoever commits the offence of stalking should be punished on the first conviction with imprisonment of either description for a term that may extend to 3 years, and should also be liable to a fine whereas, on a second or subsequent conviction, he/she should be punished with imprisonment of either description for a term which may extend to 5 years, and should also be liable to a fine (Section 77(2) of the BNS). 

Related Case Laws

• Vishaka vs. State of Rajasthan (August 13, 1997)
• Santosh Kumar Singh vs. State through CBI (October 06, 2010)
• Inspector General of Police & Anr. vs. S. Samuthiram (November 30, 2012)
• S.P.S. Rathore vs. C.B.I. & Anr. (September 23, 2016)