By Dr Swati Jindal Garg
The Supreme Court’s recent decision in Tuhin Kumar Biswas @ Bumba vs State of West Bengal has once again brought into focus the longstanding tension between a woman’s right to privacy and the strict statutory elements required to constitute the offence of voyeurism under Section 354C of the Indian Penal Code. A bench of Justices N Kotiswar Singh and Manmohan upheld the Calcutta High Court’s decision to quash criminal proceedings, reiterating a crucial principle: not every act of photographing a woman without her consent amounts to voyeurism.
The case has revived important questions:
l What exactly does Section 354C criminalize?
When does nonconsensual photography become a punishable offence?
How should courts interpret the term “private act”?
And above all, how can women’s privacy rights be reconciled with the strictly drafted ingredients of Section 354C? Section 354C—introduced through the Criminal Law (Amendment) Act, 2013, following the Nirbhaya incident—was crafted to curb nonconsensual recording and dissemination of images of women. It defines voyeurism as watching, capturing, or disseminating the image of a woman engaged in a private act without her consent, in circumstances where she would normally expect privacy. A “private act” includes states of undress, use of the lavatory, or any situation involving exposure of genitals, posterior, or breasts.
Thus, the offence requires three essential ingredients:
The woman must be engaged in a private act.
The act must be captured or watched without consent.
She must have a reasonable expectation of privacy.
In its latest ruling, the Supreme Court emphasized that all three requirements must be met. In the present case, they were not.
The complainant alleged that the accused, Tuhin Kumar Biswas, took her photographs and videos on his mobile phone—without consent—while she visited a property as a prospective tenant. She claimed that this act intruded upon her privacy and outraged her modesty. An FIR was lodged under Sections 341, 354C, and 506 IPC. While the trial court declined to discharge the accused, the Calcutta High Court quashed the proceedings. The Supreme Court upheld this view.
The Court provided four key reasons:
1. No Private Act Was Involved
The complainant was neither in a state of undress nor engaged in any activity that attracted a reasonable expectation of privacy. She was in a public or semi-public setting. Thus, the core ingredient of voyeurism was absent.
2. No Reasonable Expectation of Privacy
Voyeurism is not triggered by mere nonconsensual photography; it applies to intrusion into a woman’s private space. The Court held that the context of the photography did not meet this threshold.
3. Criminal Law Must Be Strictly Construed
Courts cannot expand the statutory definition beyond what the legislature has explicitly provided.
4. Strong Suspicion Must Be Backed by Evidence
Criminal trials cannot proceed on vague allegations. A clear, legally recognizable offence must be made out.
The judgment is significant because it underscores the enduring conflict in criminal law: women’s right to privacy and bodily autonomy versus the need to prevent misuse of penal statutes through strict interpretation.
In today’s world—where mobile phones can record and disseminate images instantly—women face unprecedented threats to privacy. While non-consensual photography can be humiliating and deeply distressing, it does not always fall within the narrow definition of voyeurism. The Court’s decision prevents the misuse of Section 354C in situations where the statutory ingredients are not satisfied. Criminal liability cannot be invoked simply because an act is morally questionable.
Yet, the case also exposes a troubling gap. Nonconsensual photography that does not fit the definition of voyeurism may not always neatly fall under Sections 354, 509, or the IT Act. As digital harassment becomes increasingly pervasive, the law must evolve. Women often experience subtle forms of intimidation and surveillance that may not constitute a criminal offence, but nonetheless erode their sense of safety and dignity.
Greater awareness is equally vital. Many women believe any nonconsensual photography amounts to voyeurism, underscoring the need for accessible legal literacy.
Ultimately, the act of photographing a woman without consent—even in a public space—reflects the deeper societal issue of objectifying and surveilling women. While the Court’s ruling brings much-needed clarity to Section 354C, it also throws into sharp relief the urgent need for clearer laws, wider education, and a more gender-sensitive approach to privacy violations in a rapidly evolving digital era.
The law must evolve—not only to punish, but to protect.
—The author is an Advocate-on-Record practising in the Supreme Court, Delhi High Court and all district courts and tribunals in Delhi
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