The Legal implementation of Sexual Harassment under Indian Criminal Law.

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This article has been written by Jirmi Kropi, currently pursuing B.A.LL.B (hons) 9th semester from Jnanadabhiram Barooah Law College Guwahati.

Table of Contents

Abstract:

This Article covers a brief study of sexual Harassment and it’s legal implications under the Indian Criminal law. This study includes the various causes which lead to an increase in the number of sexual abuses and harassment against women. Sexual Harassment is a major issue in today’s world. Sexual harassment not only harms a women physical appearance but also harm her emotional and mental growth. Sexual harassment infringe on women fundamental rights, particularly the right to equality enshrined in article 14 and 15 of the Indian Constitution as well as the right to life and a dignified existence enshrined in Article 21. The Constitutional Fundamental Rights support to eliminate the Sexual Harassment .

Introduction :

Sexual Harassment include verbal, non-verbal , or physical action such as unwanted conduct that is sexual in nature. The Act of different kind of abuse including violence, physical abuse, molestation, sexual abuse, eve-teasing, rape, are all different kinds of sexual Harassment. It includes request of Sexual favours, physical act of sexual assault, including unwanted sexual looks and gestures. Sexual harassment is the violation of fundamental rights as stated by the Supreme Court in the case of Vishaka v. State of Rajasthan (1997), sexual harassment cases result in violation of fundamental rights of women under Articles 14, 19 and 21 of the Constitution of India . Sexual Harassment can take place anywhere, whether at workplace, educational institutions, public transport or any other place. Majority of the women have experienced sexual harassment in some way or another in their life.

In India, there includes three statutes that make sexual harassment a punishable offence, namely the Indian Penal Code 1860 , the Sexual Harassment of women at Workplace ( Prevention and Redressal) Act, 2013, Protection of Children from Sexual Offences, 2012.

History of Sexual Harassment:

Before, there was no proper legal definition of sexual harassment in Indian Law. There are multiple incidents where women faced sexual harassment but due to lack of terminology and legal framework the victims did not get proper justice Since there was no legal recognition of the term “sexuql harassment”. Giving a straightforward definition of “ sexual harassment” and stringent punishments, along with addressing some of the emerging forms of sexual abuse, the newly introduced sections corrected the deficiencies of the previous provisions and strengthened the legal framework.

Case where the victim had suffered due to the lack of appropriate provisions penalizing sexual harassment are Rupan Deol Bajaj v. Kanvar Pal Singh Gill & Anr on 12 October, 1995 AIR Supreme Court 309, a superior officer sexually harassed a senior IPS officer but due to the limited provisions of Section 354 and 509, the High Court found the recourse insufficient and quashed the FIR and Complaint . The allegations made in the complaint did not disclose any cognizable offence . The Supreme Court then set aside the judgement of the High Court and sent back the case to the Lower Court to take cognizance of the offences under section 354 and 509. Later on appeal the Supreme Court turned the punishment into probation.

The case of Vishaka v. State of Rajasthan (1997) , The Rajasthan High Court failed to give justice but due to constant efforts and struggle by the victim and different women organisations , the Supreme Court enacted the Vishaka guidelines as a temporary solution. This guidelines was later replaced by the Sexual Harassment of Women at Workplace ( Prevention, Prohibition and Redressal) Act, 2013.

And in the year 2012, the horrific incident of the Delhi Gang Rape case, also known as Nirbhaya case took place . The brutal attack on the victim made the legislature consider amending the prevelant rape laws. This led to the introduction of the Criminal Amendment Act, 2013, also known as the Anti-rape Act. Through this Amendment, many new offences were added to the definition of rape. Section 354 was introduced, thus providing a separate provisions in the IPC for sexual harassment, making it a penal offence.

Sexual Harassment under the Bharatiya Nyaya Sanhita, 2023 :

The Bharatiya Nyaya Sanhita ,2023, also known as BNS, is a new law that repealed and replaced the IPC, 1860, to become the new penal code. A need was felt to carry out an extensive review of the IPC since it was pre- independence British era criminal statute that had become outdated with the evolving rights and the new organised crimes that were taking place.

A few changes that have been brought by this new penal code include the introduction of “community service”, as a punishment in cases of petty offence.

Section 75 of the BNS, 2023

States the definition as well as the punishment for sexual harassment . Sub-section (1) provides the definition and sub-section (2) and (3) provides the punishment .

The provision in sub-section (1) list certain acts, which include the following:

Physical contact and advances, which begin with an unwelcome and explicit sexual introduction,
Demand or request for sexual favours
Showing pornography to a women against her will
Making sexually coloured remarks.

Punishment for sexual harassment :

Punishment has been given under section 75 of sub-section (2) and sub-section (3). A punishment of rigorous imprisonment for a term that may extend to three years or with fine or with both has been prescribed. There is no minimum limit but the maximum limit for the term of imprisonment for this offence is 3years and the form of imprisonment is rigorous.

Remedy for the aggrieved:

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 stipulates certain measures for the aggrieved employee to address her grievance .

Internal complaint: This Act requires an employer to set up an “internal complaint committee” at each office of an organisation employing at least 10 employees.
Local Complaint Committee: The Government are also required to set up “Local Complaint Committees” at the district level to investigate complaint regarding sexual harassment . The Sexual Harassment Act also set out the constitution of the the committees, process to be followed for making a complaint, and inquiring into a complaint in a time bound manner.
Interim relief: Interim measures such as (i) transfer of the aggrieved women or the respondent to any workplace, or (ii) granting leave to the aggrieved women upto a period of 3 months in addition to her regular statutory/ contractual leave entitlement.

Law relating to sexual harassment in India:

India has multiple law relating to Sexual Harassment (i) Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 ( POSH Act) and (ii) Indian Penal Code.

POSH Act: The POSH Act refer to the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act,2013. It was introduced in India to create a safe working environment for women and to address complaint related to sexual harassment at workplace. It promotes gender equality and ensure women feel safe in the workplace. Enforces the idea that employer are responsible for ensuring a safe working environment. It also established a formal process for addressing Sexual Harassment complaint and raise social awareness.
Indian Penal Code: There are provision in the main criminal law that is the Indian Penal Code which are different from the special law in sexual harassment. The IPC is not limited to sexual harassment at workplace but punishes such harassment done anywhere. The IPC makes it possible to file a criminal complaint if you have been sexually harassed . While the Special Law gives the option of seeking civil remedies and damages. Under Section 354A defines sexual harassment and punishment for this Act is rigorous imprisonment for upto three years, a fine or with both.

Case Law:

Tuka Ram And Anr v. State of Maharashtra , AIR 1979 SC 185, 1979 SCR (Mathura case)

In Mathura rape case a young tribal girl named Mathura was allegedly raped by two policemen while she was in custody . It was the incident of custodial rape, took place on March 26, 1972, where the girl was raped in Desai Gunj Police Station in Maharashtra. The Supreme Court stated that no mark of injury were found on the person of the girl, there were no signs of any struggle and resistance . Also from the shred of evidence it can be shown that the girl had not been put in fear of death or hurt so the consent would be considered as free or voluntary. Also, the girl was habituated to sex so it may be possible that she might have incited the cops. So it was concluded and held by the Supreme Court of India that the sexual intercourse which was in question in the given case is not proved to amount to rape.

Vishaka v. State of Rajasthan and Ors 1997, SC 3011( Bhandari Devi case) This was a landmark case regarding the protection of women against sexual harassment at workplace. It was the incident of 1992 where a lower caste social worker for the Women Development programme in Rajasthan named Bhandari Devi who was trying to stop a child marriage in her village was allegedly gang-raped by five men of the upper class community . She went to the police station to filed a complaint against the offenders but no thorough investigation was launched. Supreme Court held that the sexual harassment of a women at workplace would be violative of her fundamental rights of gender equality and rights of life and liberty under Article 14,15,19 and 21 of the Indian Constitution. The Court concluded that such Act would be considered as a violation of women’s human rights .

State of Maharashtra vs. Madhukar Narayan Mardikar AIR, 1991 SC 207 In this case where a police inspector of Bhiwandi town police station alone in uniform in the night went to the hutment of a women named Banubi. Inspector advocated that he raid her hutment on the ground that she was engaging with 0 the dealing of illicit liquor. The departmental enquiry took place against the inspector, in course of which it came out that Banubi was a women of easy virtue. She also had extramarital affairs.

The Bombay High Court held that he cannot be removed from his service since Banubi was a women of immoral character. Court held that “she was an unchaste women so it would be unsafe to allow the career of that inspector to be put in jeopardy upon the uncorroborated version of such a women who makes no secret of her illicit intimacy with other person”.

Supreme Court overruled the judgement and give the order to removed of his service . Supreme Court opined that “even a women of easy virtue is entitled to privacy and no one can invade her privacy as when he likes. Therefore merely she is a women of easy virtue, her evidence cannot be thrown overboard”. So she is very much entitled to protect her in case of any attempt to violate her as a person. Also while deciding the case of rape, past history of victim’s sex life does not matter. She is very much entitled to the protection of the law.

Though this case has not brought any legal amendment in the context of protection of women against violence but by virtue of Article 141 of Indian Constitution it would be binding on all the court within the territory of india.

Conclusion:

Sexual Harassment undermines personal dignity, effects mental well being and can lead to severe emotional distress . It is not limited by gender although women are disproportionately affected. India have enacted laws and guidelines to address and prevent sexual harassment, recognizing as a violation of human rights. The laws provide the most needed grievance redressal process working women required at their workplace and it’s implementation should be monitored.

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