Section 77 of the Bharatiya Nyaya Sanhita (BNS)

Section 77 of the Bharatiya Nyaya Sanhita (BNS) of 2023 deals with voyeurism and is an important provision for protecting women’s privacy and dignity.

Section 77

BNS Section 77 outlines the offence of voyeurism. It makes it illegal to view or take pictures of a lady when she is engaging in private activities that she does not want to be seen. The legislation sets harsh penalties, which may include jail time or fines, for both first-time and repeat offenders. It also clearly states that taking pictures in private spaces, such as restrooms, or while engaging in activities that are not frequently done in public is prohibited, as is sharing images without authorisation.

“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 or disseminates such image shall be punished on first conviction with imprisonment of either description for a term which shall not be less than one year, but which may extend to three years and shall also be liable to fine and be punished on a second or subsequent conviction, with imprisonment of either description for a term which shall not be less than three years, but which may extend to seven years and shall also be liable to fine.”

Explanation 1:

For the purpose of this section, “private act” includes an act of watching carried out in a place which, in the circumstances, would reasonably be expected to provide privacy and where the victim’s genitals, posterior or breasts are exposed or covered only in underwear; or the victim is using a lavatory or the victim is doing a sexual act that is not of a kind ordinarily done in public.

Explanation 2:

Where the victim consents to the capture of the images or any act, but not to their dissemination to third persons and where such image or act is disseminated, such dissemination shall be considered an offence under this section.

Example

A clothing store employee named Vijay records ladies trying on garments in the changing/trial room with a phone, then posts the videos online. He has been promoted to voyeurism and is liable to a penalty and a custodial sentence ranging between three to seven years.

The Punishment For Section 77 of the Bharatiya Nyaya Sanhita (BNS) 

In accordance with this particular stipulation, a convicted individual for the first time shall be imprisoned for not less than one year which may extend to a maximum of three years in addition to a fine. To those who are already convicted of a similar crime, they have a minimum prison term of three years and at most shall not be imprisoned for more than seven years, in addition to a fine.

Imprisonment 

The imprisonment term for the first offence is between one to three years. Subsequent ones receive imprisonment between three to seven years.

Fine

Apart from imprisonment, a repute has to pay a fine. The amount of the fine depends on the facts of the case decided by the courts.

Bharatiya Nyaya Sanhita Section 77

Section	77
Description	Voyeurism, watching, capturing or sharing images of a woman in private without consent
First offence Punishment	1 to 3 years imprisonment and fine
Subsequent offences Punishment	3 to 7 years imprisonment and fine
Bailable/Non-bailable	Bailable for first offence, non-bailable for subsequent offences
Cognizable/Non-cognizable	Cognizable
Trial Court	Court of Session

Ingredients of Section 77 Voyeurism 

1. Act of Watching or Capturing: 

The convict needs to have witnessed or taken a picture of a woman engaged in a certain act which is considered personal.

2. Expectation of Privacy: 

A woman in such situations must expect that no one is likely to see her.

3. Dissemination/ circulation

The offender copes with crime again if such picture is disseminated without any consent from the woman’s side.

4. Private Act

A private act would be a situation in which the women visits a bathroom or engages in any other sexual activity that is not meant for public display or has her genitals, buttocks or breasts fully out or covered by some underwear or clothing.

Explanation 1 

A “private act” is defined broadly to include activities conducted in areas presumed to be private, for instance when a victim’s body parts are naked or she is in a toilet or engaged in a sexual activity.

Explanation 2

If the female agrees to the taking of the picture however does not give permission for the image to be shared, it is still a crime to distribute that image.

BNS Section 77: 10 Key Points Explained in Detail

1. Purpose of the Law

• The provision of BNS Section 77 aims at protecting the privacy of women. It enables the prohibition of all actions that infringe a woman’s privacy and completing her personal space to secretly stare or film her when in the enclosed area.

2. Definition of Voyeurism

• According to this provision voyeurism is halfway considering an assault, it is covertly taking photographs or glancing at a woman in an area that she has considered private and quiet. This also includes instances when she is doing intimate acts or has her naked body parts.

3. Private Acts Covered

• The law includes private act as one which is done away from the audience. This includes performing a natural call, engaging in sexual intercourse and skin or undergarments covering a woman’s thighs, buttocks, chest or female genitals.

4. Consent Matters

• By law, it is also said that these pictures cannot be published without a release from the subject and that does not include situations where the woman may show herself naked or be videotaped. That is consent regarding distribution and recording should be given expressly.

5. First offence Punishments

• The guidelines administered under this provision indicate that first offenders are to be sentenced to at least one (1) year to a maximum of three (3) years imprisonment. Also, the offender will pay a fine in addition to imprisonment.

6. Punishments for Repeat offences

• In case the offender is prosecuted for a second or any other subsequent offence, the term of the sentence will be increased. Additionally to fine, the offender is also subjected to imprisonment ranging 3 to 7 years.

7. Cognizable offence

• A Conduct that can occasion apprehension by a law officer in compelling circumstances is referred to as cognizable offence. Given the nature of the act in question, the section is a cognizable one in respect of both the first and second offences.

8. Bailable and Non-Bailable Conditions

• Compared to BNS Section 77 that does not allow the arrest of the defendant pending trial for request of bail, this provision allows the first offence to be bailable. In regard to second or subsequent offences, the defendant shall not be released on bail as it is more difficult for the accused to be released on bond.

9. Non-Compoundable offence

• As this is not a compoundable offence, the victim and the culprit can not compromise upon privately. In order to ensure justice is served and the perpetrator is brought to book, it has to be tried in court.

10. Trial by Court of Session

• The cases of offences committed under this section are tried in the Court of Session which deals with more serious crimes. It thus ensures that voyeurism cases are dealt with a higher court with the seriousness they deserve.

Comparison of Section 77 of the Bharatiya Nyaya Sanhita (BNS) with IPC Section 354C (Voyeurism)

Section 354C of the Indian Penal Code (IPC) also addresses the offence of voyeurism, similar to Section 77 of the BNS.  Abusive practices aimed at peeping into or photographing a person in a private act without her consent and disseminating such pictures is forbidden by both of these sections. The consequences for offenders of both provisions are similar: imprisonment and monetary penalty.

Under Section 77 of BNS, a more elaborative context around the term ‘private act’ is provided which in turn also expressly includes activities such as defecating or engaging in sexual activity otherwise in public. The BNS further clarifies that consent for taking the image does not entail consent for distribution therefore making it a distinct offence for the image to be disseminated without the photographer’s consent.

Recent and significant cases where the Supreme Court and High Courts interpreted laws related to voyeurism 

1. X v. State of Maharashtra (2022) Supreme Court of India

In one case a woman was surreptitiously videotaped while undressing in a changing room. The Supreme Court emphasized the importance of respect for women’s dignity and privacy, particularly in situations where women are entitled to complete privacy. The fact that the victim at the time was not aware of the existence of the video did not relieve the court from concluding that the action was in fact voyeurism. The court also stressed that just because someone is allowed to go into a restricted area does not mean they can also be filmed in it.

2. State of West Bengal v. Abhijit Das (2021) Calcutta High Court

On one occasion, a woman was observed to have been surreptitiously recorded by the defendant while undressing. The High Court in Calcutta, India, held that photographs or video recordings taken, for example, of a woman dressing up, where the woman expects to be alone is pure voyeurism. The court also pointed out that no one should even record without prior express consent and went on to state that such videos when shared without permission is a serious violation of privacy.

3. Kavitha v. State of Karnataka (2023) Karnataka High Court

In this instance, a woman’s intimate partner leaked some of her nude images to the public without her willing engagement. The Karnataka High Court examined the provisions of Section 354C IPC and reiterated that sharing images without the consent of the individual in the image, is an offence, irrespective of whether the images were taken with the subject’s agreement. The legal tribunal also explains, that the society in general tends to consider the social stigma and the emotional torture that the victims go through as points that merited the punishment of the offenders in an even more severe manner.

4. X v. State of Kerala (2023) Kerala High Court

This case study pertains to the installation of a secret recording device in the restroom of a female students’ residence hall. The Kerala High Court’s interpretation of Section 354C IPC is that mere installation of a camera in a designated area for the purpose of taking photographs or video footage amounts to voyeurism even if the camera is not recording. The court also discussed the technological aspect of the offences and the reactive and proactive measures that are called for in such instances.

5. State of Tamil Nadu v. Prakash (2022) Madras High Court

In this case, the Madras High Court examined the offence of voyeurism in the context of an event held in public where, without the consent of the person, a video recording was made of a woman indulging in an act which was clearly meant to be private. The court considered how the public nature of spaces does not diminish a woman’s right to privacy, more so when there are reasonable expectations of privacy. Moving further, the court highlighted the necessity of safeguarding the dignity of women in the public as well as the private space, reiterating the basic principles laid down in earlier judgments.

Significant Points to Consider as per Courts Interpretation 

Expectation of Privacy

The importance of the idea of privacy can not be downplayed when trying to establish whether an act is indeed that of voyeurism or not.

Consent

It is necessary to ask for the consent of the person before taking or uploading any images. In particular, approval not only to take photos, but also to distribute photos is very much a big issue.

Technology

The rise of technology-based voyeurism, courts have called for the need for awareness and compliance with privacy laws to be taken seriously.

Dignity and Trauma

Courts have insisted on strict sanctions against offenders because they appreciate the deep psychological torture and societal shame that victims undergo.

Conclusion

The rationale behind including Section 77 Voyeurism is to protect women from being objectified, recorded in any form or having snippets of their private lives shared without their consent. 

We analyze a few updated interpretations of this section by the Supreme Court and High Courts citing notable cases with the courts’ unswerving focus on need for consent, reasonable expectation of privacy and the challenges posed by congruent technological development. 

This piece of writing shows how bent the courts are on preserving the interests of women concerning voyeurism as envisaged in section 77 of the law in today’s world.

Frequently Asked Questions on Section 77 of the Bharatiya Nyaya Sanhita (BNS)

Q1. What is Section 77 of the Bharatiya Nyaya Sanhita (BNS) 2023?

Ans1. Section 77 of the Bharatiya Nyaya Sanhita (BNS) 2023 deals with the offence of voyeurism, making it illegal to watch, capture or share images of a woman engaged in private activities without her consent.

Q2. What are the punishments under Section 77 of BNS for voyeurism?

Ans2. For a first offence, the punishment is 1 to 3 years of imprisonment and a fine. Repeat offenders face 3 to 7 years of imprisonment and a fine.

Q3. What constitutes a private act under Section 77 of the Bharatiya Nyaya Sanhita?

Ans3. A private act includes any situation where a woman’s genitals, buttocks or breasts are exposed or covered by underwear or when she is using a lavatory or engaged in a sexual act that is not usually done in public.

Q4. Can consent to take pictures be given without permission to share them under Section 77 of BNS?

Ans4. Yes, under Section 77, even if a woman consents to the capture of images, sharing those images without her explicit permission is still illegal.

Q5. Is voyeurism a cognizable offence under Section 77 of the Bharatiya Nyaya Sanhita?

Ans5. Yes, voyeurism is a cognizable offence under Section 77, meaning the police can arrest the offender without a warrant.

Q6. Is voyeurism bailable under Section 77 of BNS?

Ans6. The first offence is bailable under Section 77, but for repeat offenders, it becomes a non-bailable offence.

Q7. How does Section 77 of BNS compare with IPC Section 354C on voyeurism?

Ans7. Both Section 77 of BNS and IPC Section 354C address voyeurism. However, Section 77 of BNS provides a more detailed explanation of what constitutes a private act and clarifies that consent to take images does not include consent to distribute them.

Q8. What is the minimum and maximum imprisonment for repeat offenders under Section 77 of BNS?

Ans8. Repeat offenders under Section 77 face a minimum imprisonment of 3 years and a maximum of 7 years, along with a fine.

Q9. What does the term “expectation of privacy” mean under Section 77 of BNS?

Ans9. “Expectation of privacy” means that a woman has a reasonable belief that her private activities are not being observed or captured, especially in places like bathrooms or while engaging in intimate acts.

Q10.What was the old IPC code for Section 77 of BNS?

Ans11. In the Indian Penal Code, deals with voyeurism and is an important provision for protecting women’s privacy and dignity Section 354C IPC.