Bathing in washroom 'private act', absurd to call it 'public act': Delhi HC

The high court said the argument that the act of taking bath by the victim, instead of being a ‘private act’ became a ‘public act’ is 'totally meritless'

Taking a bath in a washroom is essentially a private act and calling it a public act merely because the structure was temporary is “absurd”, the Delhi High Court said on Thursday while holding a man guilty of voyeurism.

The high court said the man’s act of peeping inside the bathroom with sexual intent whenever the victim used to take bath, and to pass vulgar remarks, comments and gestures against her were not trivial and ill-mannered behaviour but amounted to breach of privacy of the woman and will attract criminality as envisaged under Section 354C (voyeurism) of the Indian Penal Code (IPC).

Justice Swarana Kanta Sharma upheld the man’s conviction and one-year sentence for the offence of voyeurism but acquitted him under the provision of the Protection of Children from Sexual Offences Act (POCSO), noting that the woman was not a minor at the time of the incident in 2014.

“The objective behind introducing the present offence (voyeurism) 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 the assurance that their privacy is respected and such kind of trespass and mischief will attract the criminality of voyeuristic behavior 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,” the judge said.

The high court said the argument of the man’s counsel that the act of taking bath by the victim in the present case, instead of being a ‘private act’ became a ‘public act’ is “totally meritless”.

“Merely because a structure which is being used as bathroom by a woman does not have a door but only a curtain and temporary walls and it is situated outside her house does not make it a public place and the contention that the act of taking bath by the victim became a ‘public act’ instead of being a ‘private act’ for the said reason has to be outrightly rejected,” the high court said.

The court underlined it will be irrational to say that a woman taking a bath in a washroom inside her house is a private act and bathing in a covered bathroom outside her house is a public act.

“This court therefore holds that the bathroom in question in this case was not a public place and the act of taking bath therein was a ‘private act’,” it said.

The high court’s order came on an appeal filed by the man challenging his conviction and sentence in a case in which the woman lodged an FIR that he used to look at her with sexual intent and whenever she used to take bath, he would peep inside the bathroom which was built outside her house.

The man’s counsel argued the bathroom used by the victim being situated at a common public place cannot be termed as a ‘private area’ but a ‘public place’ and so the act of bathing at such ‘public place’ cannot be called a ‘private act’.

He argued in case the court held a contrary view, several thousands of people can be prosecuted merely for their presence at public places such as water parks, swimming pools, lakes, ponds or even while taking bath in rivers at religious places.

The high court, however, rejected the submissions, saying there can be no doubt that the woman taking bath will be considered to be engaged in a ‘private act’ and having reasonable expectation of not being seen by anyone.

“It is clear from the statements of the witnesses that the bathroom had small walls and a curtain used to be drawn at the time of taking bath by the victim. The contention that the act of taking bath cannot be considered a ‘private act’ as it was being done in a public place is not only meritless but also absurd.

"Taking bath in a bathroom by any person, whether a male or a female, is essentially a ‘private act’ as it is taking place inside the four walls of the bathroom,” it said.

The court said it cannot be denied that a woman taking bath inside a closed bathroom will reasonably expect that her privacy was not invaded and she was not being seen or watched by anyone and the act of a perpetrator peeping inside the bathroom will certainly be regarded as invasion of her privacy.

It “strongly disagreed” with the argument of the man’s counsel that if the trial court’s order is not set aside, it will amount to holding that people can be prosecuted for their mere presence at public places where women may be taking bath such as religious places, holy rivers and swimming pools.

“… The counsel for the appellant should have kept in mind that while people take holy dip in rivers or water bodies considered as holy, they are not bathing in the same, but are taking holy dips. Such religious places, without an iota of doubt, will be public places.

"However, the act of taking holy dip cannot be equated with taking bath by a woman behind four walls with curtain drawn who would expect that she is behind four walls with a covered entrance, and will thus have reasonable expectation that while taking bath, she will not be observed by anyone,” Justice Sharma said.

The court said there will be ‘reasonable expectation’ that photographs or videos of such women, even while taking bath at such public places are not taken.

Even in those cases, it will amount to invading her privacy and no person has a right, even in that situation, to take her photographs, videos as envisaged under Section 354C of IPC.

“The social context of crimes cannot be lost sight of by the courts. The Courts need to remain alive to the social realities in such cases where the victim due to her poverty did not have luxury of having a bathroom inside her house, but had a makeshift bathroom outside her own house," the judge said.