08/08/2017 12:30 PM IST | Updated 08/08/2017 12:57 PM IST

Indian Law Is Oddly Lenient Towards Those Accused Of Stalking For The First Time

One reason why Vikas Barala walked out of the police station.

Cathal McNaughton / Reuters
Representational image.

In less than a day after being arrested for stalking, Vikas Barala, son of Haryana BJP Chief Subhash Barala, and his friend Ashish Kumar managed to walk out of a police station in Chandigarh having secured bail. It was a loophole in the existing law against stalking, amended in 2013, that made it possible for the accused to go out scot-free.

The two men had chased complainant Varnika Kundu's car in an SUV on Saturday night for seven kilometres, repeatedly trying to cut and corner her. Driving skills apart, Kundu had the presence of mind to call 100 as well as inform her parents of her ordeal, even as the nightmare was unfolding. By the time, she was finally intercepted by Barala and his friend, the police had reached the spot. They caught the duo, trying to open the door of Kundu's car, presumably with the intention to pull her out of it.

"My hands shaking, my back spasming from fear, half in tears, half bewildered, because I didn't know if I'd make it home tonight. Who knew when, or if, the cops would show up," Kundu later wrote on Facebook, as she recounted the night of horror. "I'm lucky, it seems, to not be the daughter of a common man, because what chance would they have against such VIPs?" she added in an afterthought. "I'm also lucky, because I'm not lying raped and murdered in a ditch somewhere."

READ: Lucky I'm Not Lying Raped And Murdered: Chandigarh Woman Recalls Horrific Stalking

Being a top-ranking IAS officer's daughter may have influenced the police to give Kundu's case a fair hearing but it didn't shield her from censure from other quarters. As Rituparna Chatterjee of HuffPost India wrote yesterday, the finger of blame was predictably pointed at the woman by the moral police.

"Why was she out driving at midnight? Why was she unescorted? Was she drunk? ... Is she familiar with the stalker? Why is there a photo of her with her alleged stalker in her Facebook album?" A barrage of questions with no relevance to the facts of the case were hurled at her. To her credit, Kundu fielded such offensives with courage and maturity, refusing to bow down to these shameful attempts at character assassination.

It's another matter though that the police, while filing her complaint, didn't consider the crime worthy of invoking sections of the Indian Penal Code that would have made it a non-bailable offence.

READ: Varnika Kundu's Ordeal Shows What Women Face When Reporting Crimes Against The Powerful

While Barala and Kumar were charged under Section 354D (stalking) of the Indian Penal Code (IPC) and 185 of the Motor Vehicle Act (driving by a drunken person or by a person under the influence of drugs), they did not have the sections for kidnapping or attempt to do so slapped on them. This, in spite of Kundu's claim that they had tried to open the door of her car and pull her out.

Senior advocate Rajwinder Singh Bains called out the "police's failure" to file non-bailable charges. "The intention here is to be seen, and going by the woman's account it was absolutely to kidnap her, molest her or even rape her," he told The Indian Express. "If you chase a woman's car for seven kilometres, block her way repeatedly, try to forcibly open the doors of her car in the middle of the night, what is the inference to be made out?" he added.

He's not alone in expressing such doubts. Other criminal lawyers have also pointed out the police could have, at the least, booked the accused under IPC Sections 365 and 511, which deal with any attempt to kidnap.

READ: Why Are We Still Calling Sexual Harassment 'Eve-Teasing' In India?

The police, accused of pussyfooting for the fear of political repercussions given the "high profile" offenders involved, said they felt it necessary to seek legal opinion before putting such non-bailable charges. As new sections may be added to the report when the investigation proceeds, there is still hope that some of these offences will be included in due course.

It's not unreasonable to wonder why stalking, which had often led to serious crimes, is not, by itself, a non-bailable offence. It has recently resulted in several tragedies, including the horrific stabbing of a woman in the national capital in broad daylight by a jilted man and the hacking of a techie in Chennai to death.

According to the National Crime Records Bureau data for 2015, 1,124 people from the Union Territory of Delhi complained of stalking under IPC 354D — which accounts for 18% of all stalking cases in the country. Delhi alone contributes to 97% of all such complaints from all the Union Territories. These numbers aren't shocking for a culture that normalises stalking as the flip side of romance. Be it in movies or TV soaps or popular fiction, the glorification of a lovesick hero trying to win over the woman he fancies by criminally offensive behaviour is a well-established trope.

READ: Let's Get This Straight Once And For All: Stalking Is Not Romantic, It's A Crime.

Indian law, too, seems to be in a dilemma about the way it wants to address stalking. Because according to it, stalking is and isn't a bailable offence. As the Economic Times reported, "As things stand today, the first offence of stalking is 'bailable' — implying the accused need not be produced before a court for seeking bail but can walk to freedom from a police station itself." However, "any subsequent offence of stalking is 'non-bailable', meaning court will have discretion to grant an accused bail".

The Justice Verma Committee, which had submitted recommendations to change the laws related to sexual violence against women after the gangrape and death of a young woman in Delhi in 2012, wanted stalking to remain a non-bailable offence. The UPA-II government accepted this suggestion and it was also ratified by a Parliamentary Standing Committee.

But just before an ordinance was introduced to have this amendment passed in Parliament in 2013, then home minister Sushil Kumar Shinde and some members of the opposition, like the Samajwadi Party, Rashtriya Janata Dal and JD(U), opposed it, claiming it would be misused against men. This reaction was far from surprising. A year later, Mulayam Singh Yadav, then chief of the Samajwadi Party, went on record to defend rape as "a mistake" that boys make.

The same boy-will-be-boys mentality seems to be working behind the move to excuse the first instance of stalking as not serious enough to be made a non-bailable offence. Thanks to such patriarchal indulgence, Vikas Barala and hundreds like him, from across the cross-section of society, are able to walk out of police stations in India every day after putting a woman through living hell.

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