[This Article has been authored by Tanisha Mitra, a 2nd year BA. LL.B (Hons.) student at Hidayatullah National Law University.]

Introduction: From Private Acts to Public Harm

Today, we are living in a digital world where privacy is an inalienable right that gives true meaning to human existence. An act, whether in public or in seclusion, is only a tweet or share away from being consumed by the general public; the law must appear as a savior, both literally and figuratively. The seminal judgement in Justice K.S. Putta Swamy (Retd.) v. Union of India reaffirmed the right to privacy as a fundamental right; yet, due to insufficient legislative backing and subsequent statutory implementation, especially in criminal law, it has failed to advocate for this right in public spaces. The current Indian legal framework lacks specific standards necessary to measure the breach of privacy in everyday life, leaving individuals unprotected by law while walking down a street or using any public transport. This article contends that the current anti-voyeurism framework in Section 77 of BNS is fundamentally inadequate, as demonstrated by the judiciary’s narrow interpretation and strict adherence to the ‘private act’ requirement. This narrow statutory scope restricts protection solely to intimate or private places, failing to recognize that the right to bodily autonomy and control over one’s image persists in the public domain.

The legislators and courts must take into account the increasingly blurring lines between private and public places, especially in light of the widespread use of technology and digital era. Practices in countries like the UK, Brazil and Argentina where even publication of pictures without consent is a civil infraction, must be studied. A more progressive approach adopted by the House of Lords which adopts the progressive twin test of reasonable expectation of privacy and proportional harm.  This article advocates for a specific statute to guarantee complete protection against non-consensual intrusive recording in all areas of life and calls for the immediate de-spatialization of image-based criminal offenses. It also asserts that the right to privacy rests in a “person,” not in a “place.”

Bodily Autonomy and Privacy in Contemporary India: Law and Lived Reality

The fundamental right to privacy has been held to be a right and has been given the status of a fundamental right as seen in the judgment of Justice K.S. Puttaswamy (Retd.) v. Union of India, which clearly states that the right to privacy is an integral part of dignity and bodily autonomy guaranteed by Article 21 of the Constitution. This judgment also clarified that privacy is not limited to specific spatial locations by stating that privacy and dignity inhere in the individual and allow personal control over information, irrespective of the location. This judgment also discarded the idea of spatiality while dealing with privacy by stating that the Constitution protects individuals and not locations.

Accordingly, despite the respect accorded to the concept within contemporary Indian society, a significant gap exists in the principles and practice of protection. Digital surveillance and non-consensual recording have grown more commonplace in public areas including metros, streets, college campuses, and marketplaces. These actions cause pain not just because of being captured but also losing control over one’s body and how it is subsequently shared. This difference has already been recognized by Indian courts. In R. Rajagopal v. State of Tamil Nadu, the Supreme Court held that the right to privacy includes the right to prevent unauthorized publication of personal material, underscoring that consent is more important rather than visibility and governs lawful exposure. Also, in the case of State of Maharashtra v. Madhukar Narayan Mardikar, the Court categorically held that bodily integrity and sexual autonomy are not forfeited by a person’s presence in public or by societal perceptions of character. This principle directly undermines the assumption that public presence dilutes an individual’s claim to privacy or dignity. The Section 77 of the Bharatiya Nyaya Sanhita continues to criminalize voyeurism only when it involves the observation or recording of a “private act,” thereby tethering privacy protection to spatial and situational qualifiers. Furthermore, the Delhi High Court in the case of Phoolan Devi v. Shekhar Kapur additionally validates the aforementioned stance by recognizing the unauthorized visual depiction and dissemination as constituting infringement of privacy despite the physical location of the individual concerned.

A society in which the use of digital media is prevalent, including the widespread use of recording devices and the spread of information through rapid means, the spatial element of the legislation regarding voyeurism in India fails to manage the realities of the invasion of privacy. While the realm of constitutional law acknowledges the importance of bodily integrity in public spaces, the antiquated notion of the association of publicity and consent within the realms of criminal law continues to be a barrier, highlighting the important need to change the standard within privacy legislation from a spatial consideration to one of personal harm.

Voyeurism under Indian Criminal Law: The Spatial Trap

Voyeurism was introduced into the IPC through the Criminal Law (Amendment) Act, 2013, largely in response to growing concerns about hidden cameras and non-consensual recording. Section 354C IPC (now Section 77 BNS) was meant to address this emerging harm, but its drafting reveals a narrow imagination of the offence. The provision criminalizes watching or capturing a woman engaged in a “private act” where she expects not to be observed. This language does two things: it centers the offence around seclusion, and it conditions liability on proving the victim’s expectation of privacy. 

In practice, this creates serious hurdles such as in situations like the filming in public transport, streets, and markets, prosecution of the offence becomes difficult as the location weakens the argument of it being a private act. The emphasis of the law seems to only concern the act of viewing, while dissemination is secondary. In fact, in digital media, sharing is a more harmful part of the act, yet it is considered secondary. By defining voyeurism as hiding and looking at others without permission, the law ignores the dynamics of contemporary cases of voyeurism, which take the form of zooming, angle-shooting, and sharing. In effect, while the law appears progressive in theory, it is still location-bound.

Comparative Perspectives: De-Spatializing Privacy

A brief comparative glance reveals that India’s spatially confined understanding of voyeurism is not inevitable. In the United Kingdom, privacy jurisprudence has evolved beyond rigid public–private binaries. In Campbell v. MGN Ltd., the House of Lords articulated the now-settled test of a “reasonable expectation of privacy,” holding that even conduct occurring in public may attract protection depending on the nature of the information and the harm caused. The inquiry does not end at visibility; it proceeds to proportionality whether publication unjustifiably interferes with personal autonomy. This approach shifts the focus from location to impact. This reasoning was further strengthened in Von Hannover v. Germany, where the European Court of Human Rights held that even photographs taken in public spaces may violate privacy depending on context and harm.

Likewise, Brazilian and Argentine courts have acknowledged that infringement of image rights can result in a civil claim despite the fact that the image was captured in a public location. Brazilian law, as governed by Article 20 of the Civil Code, accords image rights protection from infringement despite their capture in a certain spatial location by emphasizing the importance of consent and reputation over location. Image rights in Argentine law have been held to constitute personality rights, which can be violated despite the location of capture. 

What these jurisdictions share in common, however, is the refusal to conflate public presence with public consent. Instead, the crux of the matter shifts from the locus of the act to how or why such an image was deployed, and whether it diminished autonomy. Under such a background, India’s attempt to conflate voyeurism with “private acts” seems less and less tenable. Indeed, comparative analysis around the world proves that privacy does not need to remain indoors.

Conclusion: Privacy Belongs to People, Not Places

The basic flaw with the current voyeuristic concept in India is that it is premised upon the concept that there can be no privacy unless there exists seclusion. However, there is no disassociated relationship between autonomy and stepping onto a street, into a metro, or across a campus. Presence does not equate with permission, nor does it equate with consent. Although constitutional law has grown to accommodate such an understanding, legislative law has yet to catch up. The continued need to prove a “private act” reflects an anachronistic spatial model.

For meaningful reform to take place, three specific elements are needed. These include the elimination of the “private act” qualification as a pre-requisite for liability, the establishment of a standard that focuses on the concept of consent, and the establishment of a two-fold test that emphasizes the reasonable expectation of privacy and proportionality. Further, it needs to establish non-consensual dissemination as a separate offense, irrespective of the location of the image capture. Until such time as Indian legal thinking acknowledges that privacy is associated with the person, not the place, the public domain will remain a legally sanctioned zone of violation.