In a tragic incident in Assam, a septuagenarian man committed suicide after his intimate video with a woman, aged about twenty-two years, got leaked.1 Without commenting on the veracity of the allegation as the matter is still under investigation, an issue is discussed which is as sensitive as it is ignored in the mainstream i.e. the under-inclusion of men as victims in sexual offences, an example of which is voyeurism, the subject-matter of this article.
Meaning and purpose of voyeurism as an offence
The term “voyeurism” came to be incorporated after the recommendations of the Justice J.S. Verma Committee.2 In the process of amending the Penal Code, 18603, this term also came up for discussion. To ascertain what the term “voyeurism” meant, it was stated that:
… the content of the section itself explains what exactly “voyeurism” means. Whoever watches or captures the image of a woman engaging in a private act in circumstances where she would usually have the expectation of not being observed either by the perpetrator or by any other person at the behest of the perpetrator shall be punished.4
While discussing the purpose behind the introduction of voyeurism as an offence, the Delhi High Court stated that:
18. The objective behind introducing the present offence was to curb sexual crime against women and to protect their privacy and sexual integrity. The law has to ensure that all citizens are able to enjoy a peaceful life with peace of mind having an assurance that their privacy is respected, and such kind of trespass and mischief will attract the criminality of voyeuristic behaviour of the perpetrator of the crime. The sexual integrity of every person has to be respected and any violation of the same should be dealt with a stern hand.5
As is quite evident, apart from the first statement, the purpose of introducing the said offence is stated in gender-neutral terms. Indeed, the legislation was correct to introduce a new kind of offence to protect the privacy and sexual integrity of women. However, the author argues that there is no constitutional basis for not extending the scope of the definition and including men as victims too. The arguments in support of his contention are expounded in the subsequent paragraphs.
Under-inclusion of men as victims
The equality envisaged to be achieved through constitutional provisions is not literal i.e. equal treatment to every individual notwithstanding the circumstance in which they are situated. Instead, what is sought to be achieved by this great principle is that the unequals can be, and ought to be, treated unequally. Prima facie, by permitting classification, a paradoxical situation arises in which the Constitution creates a backdoor entry for inequality to creep in. However, the Supreme Court has allayed any such apprehensions in these words:
53. … In tackling this paradox, the Court has neither abandoned the demand for equality nor denied the legislative right to classify. It has taken a middle course. It has resolved the contradictory demands of legislative specialisation and constitutional generality by a doctrine of reasonable classification.6
Professor Tarunabh Khaitan enumerates four distinct elements which can usually be identified in any concern relating to the classificatory rule.7 Those four elements, after contextualising them with the present discussion, have been enumerated below:
(i) Whether or not the right to equality is engaged: In the present situation, the right to equality is engaged, as women are included as victims against whom the offence of voyeurism can be committed. However, men are, for some reason, not included.
(ii) What classes does the rule create: Between women and men, criminal law under IPC can be set into motion for one class but not for the other.
(iii) What end does it seek to achieve: As stated earlier, the salutary objective behind the introduction of the offence was to curb sexual crime against women and to protect their privacy and sexual integrity.8 However, there is no reason forthcoming as to why the protection accorded by this provision ought not to be extended to male victims of the offence.
(iv) What consequence does it subject each of these classes to: After the judgment of the Supreme Court in K.S. Puttaswamy v. Union of India9, the right to privacy is established as part of Article 21 of the Constitution.10 In the present state in which Section 354-C11 exists, it extends the benefit of this provision to one class and not to another. As a result, there is an apparent conflict. On one side, Article 21, as interpreted by the Supreme Court of the land, ensures privacy and protection of sexual integrity of every member of society. However, the statutory provision only accords such protection to one section while denying it to another.
The non-inclusion of men as victims of voyeurism creates an avoidable constitutional problem on multiple levels. Firstly, as is stated, statutory recognition of men’s fundamental right to privacy and sexual integrity is denied. Secondly, men are not within the definition of the term “victim” as given in Section 2(wa) CrPC, 1973.12 Consequently, they cannot exercise the rights given to the victims under CrPC. It is problematic because these rights are correctly classified as a facet of enforceable human rights.13 In constitutional parlance, it can be said that Section 354-C IPC suffers from the vice of under-inclusion of men as victims and thus falls foul of Article 14 of the Constitution14, as interpreted by the Supreme Court.
In a different context, it has succinctly stated that a classification amounts to being under-inclusive when, inter alia, “the State provides benefit to persons in a manner that furthers a legitimate purpose but does not confer the same benefit on others who are similarly situated”.15 It will be further relevant to mention that under-inclusiveness may pass the judicial test because the courts tend to show leniency towards it, but it is clear that the courts will certainly intervene when “there is no fair reason for the law which would not require with equal force its extension to those whom it leaves untouched”.16 In the present situation, the legitimate purpose is to protect the privacy and sexual integrity of victims of voyeurism. However, for no fair reason, the definition does not include men as the victims. As a result, they can neither get justice nor exercise the substantive rights which are available under CrPC to the victims, leading to a clear example of the vice of under-inclusiveness.17
It can be argued that the present provision is in accordance with Article 15(3) of the Constitution.18 However, the argument is flawed. Indeed, the language of Article 15(3) makes it abundantly clear that the provision acts as an exception to Article 15. However, the provision cannot be so understood to mean that it provides carte blanche to the State. This is because, structurally, Article 15(3) is located within a separate chapter on equality,19 and for it to continue to be ensconced within this chapter, the provisions (and any action taken thereunder) must be so considered together that they further the fundamental guarantee against unreasonable inequality to the greatest possible extent.20 As has been shown by the foregoing discussion in this chapter, the present state in which the provision relating to voyeurism exists cannot be said to have complied with the above requirements.
The way ahead
To summarise, the legislature, in the immediate aftermath of the harrowing Nirbhaya incident21, introduced significant changes in the Penal Code, which included, inter alia, the introduction of new offences, one of which was voyeurism. However, this article argues that the non-inclusion of men as victims of the said offence suffers from the vice of under-inclusiveness. Resultantly, it falls foul of the Constitution. The way is already shown by Section 66-E of the IT Act22, which is gender-neutral with respect to both the victim as well as the perpetrator23 of the offence. Given that the IPC is under review for substantial changes, it is hoped that necessary legislative amendment is brought so that men are included as victims of the offence and are enabled to exercise the substantive rights which are granted to the victims under CrPC. This, in the ultimate reckoning, will give meaning to the fundamental right which has been provided to them by the Constitution and interpretation thereof.
* Advocate, Patna High Court. The author would like to thank Mr Naveen Kumar Pandey for his comments on the article. Author can be reached at email@example.com.
1. “Assam: Elderly Man Dies by Suicide after Video of Him in Compromising Position with College Girl Surfaces Online”, India Today NE (6-5-2023) <https://www.indiatodayne.in/assam/story/assam-elderly-man-dies-by-suicide-after-video-of-him-in-compromising-position-with-college-girl-surfaces-online-554044-2023-05-06> (accessed on 20-5-2023).
7. Tarunabh Khaitan, “Equality: Legislative Review Under Article” in Sujit Chaudhry and others (eds.), The Oxford Handbook of the Indian Constitution (Oxford University Press, New Delhi, 2016).
17. Shubham Priyadarshi, “Maintaining Equality in Claiming Maintenance” (LiveLaw, 1-12-2022) <https://www.livelaw.in/columns/maintenance-section-125-code-of-criminal-procedure-supreme-court-215526> (accessed on 19-5-2023).
19. Gautam Bhatia, The Transformative Constitution (1st Edn., HarperCollins Publishers, 2019) p. 7.
20. Shubham Priyadarshi, “Maintaining Equality in Claiming Maintenance” (LiveLaw, 1-12-2022) <https://www.livelaw.in/columns/maintenance-section-125-code-of-criminal-procedure-supreme-court-215526> (accessed on 19-5-2023).
23. With regard to Penal Code, S. 354-C, the arguments which are advanced hereinbefore for men as victims can also be applied to include women as offenders. Presently, the language of the section is “Any man who watches, or captures the image of a woman….” The arguments have not been repeated at the cost of repetition.