05/18/2024

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Punishment for harassment in India 

This article is written by Subhangee Biswas. The article briefly discusses the provision concerning sexual harassment, its essentials and the concerned punishment under Indian Penal Code, 1860. The article further delves into the history of sexual harassment, merging its timeline into the introduction of the Criminal Amendment Act, 2013 and also highlighting the role of social media in this scenario. Lastly, the article concludes by citing some of the landmark cases and also some recent judgements that have shaped the entire concept so as to adapt to changing times.

It has been published by Rachit Garg.

Introduction 

Before learning about sexual harassment under different statutes, we first need to understand the general meaning of the term. Sexual harassment is unwanted conduct, including verbal, nonverbal, and physical conduct that is sexual in nature. The acts of different kinds of abuse, including violence, physical abuse, molestation, sexual abuse, eve-teasing, rape, are all different kinds of sexual harassment. It includes:

  1. Making unwelcome sexual advances,
  2. Requests for sexual favours,
  3. Physical acts of sexual assault, including unwanted sexual looks or gestures,
  4. Verbal acts of harassment, like making jokes regarding sexual acts or sexual orientation,
  5. Unwanted touch or physical contact,
  6. Unwanted sexually explicit photos, emails, texts containing materials of a sexual nature,
  7. Sexually coloured remarks,
  8. Showing pornography.

Every form of harassment is wrong and unacceptable, be it verbal, physical, or visual. Harassment is a violation of one’s personal space. However, sexual harassment is a 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 it’s at workplace, educational institutions or any other place. There are also incidents of people being sexually harassed while commuting on public transport. Majority of women have experienced sexual harassment in some way or another in their life- whether it is an unwanted touch by someone in a crowded area, any sexual looks or gestures by someone in their neighbourhood or any other sexual advances or comments made in the workplace or educational institutions.

In India, we have three statutes that make sexual harassment a punishable offence, namely, the Indian Penal Code, 1860 (hereinafter referred to as IPC), via Section 354A, the Sexual Harassment of Women at Workplace (Prevention and Redressal) Act, 2013, also known as the POSH Act; and the Protection of Children from Sexual Offences, 2012 (commonly referred to as POCSO), via Section 12. 

Section 354A provides a generalised definition of sexual harassment, irrespective of the place where it happened and prescribes the penal provisions for the offence. On the other hand, the POSH Act defines, under Section 2(n), sexual harassment taking place with women at their workplace, thus narrowing down the scope. The Act further provides provisions regarding protection against such sexual harassment and also the prevention and redressal of the complaints made by the victims of sexual harassment at the workplace. 

POCSO defines the offence of sexual harassment committed against a child under Section 11 and prescribes punishment for it under Section 12. Here, again, the scope has been narrowed down by limiting its application to those cases in which the victim is a child- the same is obvious from the statute as it is enforced as a special Act for children. However, the provision under POCSO is not limited to a girl child since the Act is gender neutral.

We will be dealing with these three different statutes under separate headings.

History of sexual harassment and its recognition

Sexual harassment is not a recent social issue. It has been existing for a long time around the world. Majority of the women, if not all, have been victims of such sexual assaults. 

Prior to 1997, there was no proper legal definition of sexual harassment in Indian law. The only provisions available under the IPC that could be used in  cases of sexual harassment were Section 354, which is outraging the modesty of a woman and Section 509 which is insulting the modesty of a woman. There are multiple incidents where women faced sexual harassment but due to a lack of terminology and legal framework, the victims did not get justice properly and, at most, received partial justice. Since there was no legal recognition of the term “sexual harassment,” all the cases were filed under IPC Sections 354 and 509 only. Under these two Sections, only outraging modesty was concerned. On the other hand, sexual harassment is a broader term that includes a list of acts, thus giving a wider scope of protection. 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.

Following are some of the cases where the victims had to suffer due to a lack of appropriate provisions penalising sexual harassment:

In the case of Rupan Deol Bajaj v. K.P.S. Gill (1995), a superior officer sexually harassed a senior IPS officer but due to the limited provisions of Sections 354 and 509, the High Court found the recourse insufficient and quashed the FIR and complaint. It concluded that 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 courts to take cognizance of the offences under Sections 354 and 509. However, in 2005, on appeal, the Supreme Court turned the punishment into probation. 

Again, the case of Vishaka v. State of Rajasthan (1997) took place, in which the problem of sexual harassment in the workplace was addressed and the absence of related legal provisions led to the issuance of guidelines till a new framework was enacted. The Rajasthan High Court failed to give justice but due to constant efforts and struggle by the victim and different women’s organisations, the Supreme Court enacted the Vishaka guidelines as a temporary solution. After 16 years, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Rederssal) Act, 2013 replaced the guidelines. 

On the other hand, in 2012, the horrific incident of the Delhi Gang Rape case, also known as the Nirbhaya case (Mukesh and another v. State for NCT of Delhi (2017)), took place, which shook the entire nation. The brutal and barbaric attack on the victim made the legislature consider amending the prevalent 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. Along with it, Section 354A was introduced, thus providing a separate provision in the IPC for sexual harassment, making it a penal offence.

Essentials of harassment 

Every crime has four components, namely, 

  1. The person committing the crime, 
  2. The intention to harm, which is known as mens rea or guilty mind,
  3. The act- can be commission of an act or omission to do an act, also known as actus reus
  4. The injury.

For any crime to take place, mens rea and actus reus are the most important essentials. Let us understand these two terms first.

Mens rea is a Latin word that means “guilty mind.” This is the mental component of the crime. It describes the mental state and intention of the person at the time of committing the offence. The common law maxim is “actus non facit reum nisi mens sit rea,” which means “the act is not considered to be guilty unless the mind is guilty”. In simple terms, the accused cannot be held accountable for his actions unless it is proven that he had the intention to commit the crime.

Actus reus means “guilty act.” This is the physical component of the crime. Actus reus means the criminal act that is committed. It is not necessary that there has to be a commission of an act; actus reus can also mean an intentional omission to do some act- this can be concluded from Section 32 of the IPC, which mentions that acts also include illegal omissions. The act or omission to act must have caused injury to some other person. Moreover, the actus reus must be voluntary. This is concluded from the Latin maxim “actus me invito factus non est mens actus,” which means that “an act done against a person’s will is not his act.”

Sexual Harassment under Indian Penal Code

The Indian Penal Code, 1860, did not originally contain a separate provision for sexual harassment. It was after the Criminal Law (Amendment) Act of 2013 that separate provisions were introduced to cover the new crimes that were taking place against women. The passing of the 2013 Act was mainly the after effects of the Nirbhaya case. It was observed that the existing laws were inadequate when it came to dealing with such horrific crimes and such inadequate laws failed to provide protection and justice to the victims. Hence, after this case, the legislature proposed changes and made amendments to the existing statutes to provide better protection against sexual crimes. As a result, substantive changes were made in the three major criminal law statutes, that is, the IPC, the Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872. Section 354A was one of such provisions that were introduced in the IPC.

Definition

Sexual Harassment has been defined under Section 354A of the IPC, 1860. The Section is divided into three sub-clauses. The first sub-clause lists down the acts that are considered to be sexual harassment, whereas the second and third sub-clauses mention the respective punishments prescribed for the offence.

The acts that are enlisted in sub-clause (1) of Section 354A include the following:

  1. Physical contact and advances, which includes unwelcome and explicit sexual overtures,
  2. A demand or request for sexual favours,
  3. Showing pornography to a woman against her will,
  4. Making sexually coloured remarks.

The commission of any of the abovementioned acts shall be deemed to be “sexual harassment,” and the man committing such acts shall be guilty of the offence of sexual harassment.

Punishment for harassment 

The punishment has been divided into two parts. The punishment for the first three acts mentioned in clauses (i) to (iii) are given in sub-clause (2). Similarly, the punishment for the act mentioned in clause (iv) has been given in sub-clause (3). To make easier, we will divide it into two points –

  • Sub-section (2) provides punishment for the acts stated in clause (i), (ii), and (iii), namely:
    • Acts of physical contact and advances,
    • Demand or request for sexual favours,
    • Showing pornography against the will of a woman. 

The punishment prescribed is rigorous imprisonment for a term that may extend to three years, or with fine or with both. There is no minimum limit but the maximum limit for the term of imprisonment for this offence is 3 years and the form of imprisonment is rigorous.

  • Sub-section (3) provides punishment for the act stated in clause (iv), which is making sexually coloured remarks. 

The punishment prescribed is imprisonment of either description for a term which may extend to one year or with fine or with both. In this case, similar to sub-section (2), there is no minimum limit but the maximum limit for the term of imprisonment is 1 year. The punishment in this case is not rigorous. 

An offence under Section 354A IPC is cognizable, bailable and can be tried by any magistrate. The offence is not listed under Compoundable Offences under Section 320 of CrPC, 1973. Thus, cases of sexual harassment cannot be compounded by the parties.

To make it simpler, let us understand the underlined terms:

Rigorous punishment is mentioned in Section 53 of the IPC as a form of imprisonment to which the offenders are liable under the statute of the IPC. Therein, it is stated that it is a form of punishment that includes hard labour.

Cognizable offence as defined under Section 2(c) of the Code of Criminal Procedure, 1973, means an offence in which a police officer may arrest without warrant. But the arrest must be in accordance with the First Schedule or under any other law which is in force during that time.

Bailable offence is defined under Section 2(a) of the Act of 1973 as an offence that is mentioned as bailable under the First Schedule or is made bailable by any other law that is in force.

Compoundable offences as mentioned under Section 320 of the CrPC, mean those offences in which the parties can enter into a compromise while the case is under trial in court. Compounding can take place with or without the consent of the court.

Difference between Section 354 and 354A IPC

Section 354 and Section 354A both penalise sexual offences against women. Section 354 deals with the offence of using assault or criminal force on a woman with the intention of outraging her modesty. It provides a punishment of imprisonment for a minimum term of one year and maximum term of five years, along with fine. On the other hand, Section 354A, as discussed above, criminalises sexual harassment.

From the face of it, they sound similar and also seem to have similar usage. But if examined closely, there is a difference in their language and intention. Looking closer into the phrasing of both Sections, we can point out this one major difference between the two-

Section 354 focuses on the “act,” which is essentially a physical act. The criminal intention plays a major role in determining whether such a “physical act” is an offence. Moreover, the use of force is also highlighted in this section.

Section 354A, on the other hand, includes non-physical acts as well. For example, demand for sexual favours, showing pornography, and making sexually coloured remarks have also been made to constitute an offence under this section. Unlike Section 354, acts of sexual harassment can be committed without the application of force. 

Sexual Harassment under POSH Act

The POSH Act was enacted by the government in 2013 to highlight and provide redressal to the issue of sexual harassment faced by women at the workplace. This legislation was an outcome of the case of Vishaka v. State of Rajasthan (1997). Initially, the Supreme Court only issued guidelines called “Vishaka Guidelines.” These guidelines were to remain in force until a new legislation was enacted to address this issue. This case has been dealt with in detail in the later part of the article. 

The POSH Act aims to provide a safe working environment for women. It not only provides protection but also describes an entire redressal procedure, including the constitution of an internal complaints committee and a local complaints committee, along with their composition. The Act also provides the procedure for lodging complaints and the inquiry process.

Definition

Section 2(n) lists certain “unwelcome acts or behaviors” that, when committed directly or by implication, are considered to be included under the term “sexual harassment.” The acts are:

  1. Physical contact or advances,
  2. Demand or request for sexual favours,
  3. Making sexually coloured remarks,
  4. Showing pornography,
  5. Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

If we look at this definition, we will notice that the definition is somewhat similar to that which is given under Section 354A of the IPC. A new addition is the fifth point, which makes the scope very broad in the sense that any kind of unwelcome conduct of sexual nature will be considered “sexual harassment.” 

Moreover, under sub-section(2) Section 3, five circumstances are mentioned, the occurrence or presence of which, if they are connected with the acts of sexual harassment as mentioned in Section 2(n), would constitute sexual harassment. The circumstances can be expressed or implied and include the following:

  1. Promise of preferential treatment in employment,
  2. Threat of detrimental treatment in employment,
  3. Threat regarding present or future employment status, 
  4. Interference with work or creating an intimidating, offensive or hostile work environment,
  5. Humiliating treatment, which is likely to affect the health and safety of the woman.

Redressal procedure

Now, let us understand the redressal procedure in sexual harassment cases under this statute. The process is a bit different than that of IPC. There is no direct mention of a punishment; rather, an entire procedure is mentioned that has to be undertaken- from lodging a complaint to undertaking an inquiry and then taking the necessary steps. 

For the redressal of sexual harassment cases, the Act mandates the constitution of an Internal Complaints Committee (ICC) under Section 4 and a Local Committee (LC) under Sections 6 and 7. These two bodies will receive complaints from victims of sexual harassment and conduct inquiries. There are two ways mentioned in which the issue can be resolved by the committee. One is conciliation between the victim and the perpetrator. Another is that, after inquiry, appropriate action is taken based on the facts and evidence. 

If an incident of sexual harassment takes place, the victim has to file a written complaint with either the ICC or LC within three months from the date of the incident. This has been provided under Section 9 of the Act. 

Now, we will discuss the procedures of resolution undertaken by the committee. As mentioned, there are two ways, which are described below:

  1. If the victim requests it, the matter can be settled through conciliation before any inquiry is started. However, no monetary settlement is allowed as a basis for conciliation. If the settlement is arrived at, then the ICC or LC will not conduct any further inquiry and will just record the settlement arrived at. The same shall be forwarded to the employer or District Officer to take action. This is the conciliation method of resolving the issue, which has been mentioned under Section 10.
  2. If the perpetrator is the employee itself, then an inquiry will be made into the complaint as per the service rules. If the incident is concerning a domestic worker and there is a prima facie case existing, then the LC will forward the complaint to the police within seven days for registering the case under Section 509 IPC. If the perpetrator is found guilty, the court will order payment of compensation. This has been provided under Section 11.

Sexual Harassment under POCSO Act

The enactment process of the legislation which eventually became the POCSO Act started in 2009 with the Ministry of Women and Child Development circulating the draft Offences against Children Bill. Around this time, in 2010, there were protests going on against the injustice delivered in the case of S.P.S. Rathore v. CBI (2016), famously known as the Ruchika Girhotra case. This case has been explained in the later part of the article. This resulted in the formation of the draft Criminal Law (Amendment) Bill, 2010 which proposed changes to the three criminal statutes of IPC, CrPC and Evidence Act. It also included provisions regarding sexual abuse of a minor. After this, two more Bills regarding protection of children from sexual offences were prepared and circulated consecutively. Finally, the POSCO Bill was introduced in 2011 and the Act came into force in 2012. The Act provides for harsher punishments for all kinds of sexual offences against children. Let us go through the provision concerning sexual harassment under this statute.

Definition

Similar to the provisions stated under the IPC, the POCSO Act also defines sexual harassment and proceeds to prescribe punishment for the same. The only noticeable difference between the definition under the POCSO Act and the definitions provided by the other two statutes is that, the one provided under the POCSO Act specifically deals with those cases of sexual harassment where the victim is a child, unlike the other statutes where the victim is an adult female. 

A child is defined under Section 2(d) to mean a person below 18 years of age. 

Section 11 of the Act defines sexual harassment upon a child. There is a list of acts provided for the purposes of defining it. The acts include the following:

  1. Saying something, making any sound or gesture, or showing any object or exposing any body part with the intention that such word, sound, gesture, object, body part will be perceived by the child,
  2. Making a child expose his body or body part so that it is seen by the perpetrator or some other person,
  3. Showing the child any object or media for pornographic purposes,
  4. Repeatedly or constantly following, watching or trying to contact a child, directly or through digital or other means, 
  5. Threatening to use in any media a real or fake depiction of any body part of the child or involvement of the child in a sexual act, 
  6. Enticing a child for pornographic purposes.

If we notice the above-mentioned acts, which are said to constitute sexual harassment, it can be seen that the definition does not mention or include any physical contact- it only includes non-physical acts, such as showing pornography, following or watching, threatening to use a depiction of the child in some sexual act, or enticing the child for pornographic purposes.

Punishment

The punishment for sexual harassment upon a child is provided under Section 12. It prescribes imprisonment for a maximum term of three years along with a fine for such an act.

Introduction of Criminal Amendment Act 2013

The Criminal Law (Amendment) Act, 2013 was an outcome of the horrific Delhi Gang Rape case- the brutality of which shook the entire nation. Mass protests took place in different parts of the country and mainly in Delhi to change the prevalent rape laws to make it more stringent. The basic idea was to make the laws more stringent, introduce harsher punishments and include new terminology to cover more offences that were taking place against women and make them punishable. 

The most important change made was to widen the scope of the word ‘rape’ in Section 375. Previously, it only meant penile vaginal penetration but the amended provision made any penetration an offence of rape. That is, previously, “rape” was meant to only include penetration of the penis into the vagina, urethra or anus. However, the amended Section makes any form of penetration without free consent or free will an offence. The amended provision states that the act of penetration, by a person, of their genital, or inserting of any other object or a part of the body apart from the genital, into the genital, urethra, or anus of the other person, constitutes the criminal offence of rape. It also includes within its scope the possibility of the perpetrator making the victim do the act with them or with a third person. This change was done mainly considering the Delhi rape case where an iron rod was inserted in the body of a girl.

Apart from this, with the increase in commission of new crimes which endangered the safety of women to a great extent, new crimes and their corresponding punishments were also introduced and included which was absent in the previous legislation. Among the rest of the newly introduced provisions like Sections 354B (disrobing a woman- this makes the act of assaulting or using criminal force or abetting such act, with the intention to disrobe or compelling a woman to be naked, a criminal offence), 354C (voyeurism- this provision penalises watching or capturing the image of a woman, engaged in some private act, in such circumstances where, the victim would usually expect not to be observed by any person or perpetrator), 354D (stalking- the act of following, contacting, and attempting to contact a person, who has clearly indicated no interest and thereby causing fear and distress to the victim, has been made punishable through this section) and 376E (punishment for repeat offenders). Section 354A was also introduced to provide a separate provision to penalise sexual harassment.

Before the Criminal (Amendment) Act of 2013, there was no separate provision for the offence of sexual harassment as discussed previously, and recourse was taken to Section 354 and 509 for relief. 

With the passage of time, there has been an increase in crimes against women. The approach and tendencies towards women have become increasingly violent, which has hastened the need to develop and reform the existing laws so as to provide a better framework for the protection of women against sexual crimes and deliver justice to the victims. The Act made significant changes and the inclusion of new terms for sexual offences like stalking and sexual harassment has made it easier to lodge a complaint under the new provisions. The Amendment Act has been one of the most concrete steps taken by the Indian Government to suppress violence against women. No doubt, it has resolved many shortcomings that used to increase the plight of the victims previously. 

To know more about the Criminal Law (Amendment) Act, 2013 in detail, click here.

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. The IPC was almost a 150 year old law. A need was felt to carry out an extensive review of the IPC since it was a pre-independence British-era criminal statute that had become outdated and did not coincide with the evolving rights and the new organised crimes that were taking place. 

The preamble mentions that it is “An Act to consolidate and amend the provisions relating to offences and for matters connected therewith or incidental thereto.” 

A few changes that have been brought about by this new penal code include the introduction of “community service” as a punishment in cases of petty offences. Moreover, the offences against women and children, offences against the State, and murder have been given more priority. Strict punishments have been prescribed for organised crimes and terrorist activities. 

Let us look at the provision of sexual harassment under the BNS, 2023.

Definition 

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-sections (2) and (3) provide the punishment. This arrangement is similar to the IPC structure that we have seen previously. 

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

  1. Physical contact and advances, which begins with an unwelcome and explicit sexual introduction,
  2. Demand or request for sexual favours, 
  3. Showing pornography to a woman against her will,
  4. Making sexually coloured remarks.

The above-mentioned acts are included in the definition of the offence of sexual harassment and the commission of any of them by a man will result in the commission of the offence of sexual harassment and the man committing the same shall be held guilty of the offence of sexual harassment.

If we compare it with the provision provided under the IPC, it can be concluded that both provisions provide the same definition for sexual harassment. There are no changes made in the provisions by the legislature for this offence.

Punishment 

As for the punishment, the same has been given under sub-section (2) and sub-section (3) of Section 75. Similar to the IPC, the punishment has been divided into two parts. Let us directly divide the punishment into two points to make it easier to understand-

  • Sub-section (2) states the punishment for commission of the acts mentioned in clauses (i), (ii) or (iii), which include-
    • Physical contact and advances, 
    • Demand or request for sexual favours, 
    • Showing pornography against the will of a woman

For the commission of these three acts, 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 3 years and the form of imprisonment is rigorous.

It is the same punishment as has been given under the IPC.

  • For the last act, that is, clause (iv), which is making sexually coloured remarks, a punishment of imprisonment of either description for a term which may extend to one year or with fine or with both has been prescribed. Again, there is no minimum limit on the length of imprisonment but the maximum period of imprisonment that a convict can be sentenced to is 1 year. Here, there is no mention of a rigorous sentence so it is assumed that the imprisonment will be simple. 

This punishment is also the same as that of the IPC.

Case laws

Tuka Ram and another v. State of Maharashtra (1979)

The case of Tuka Ram and another v. State of Maharashtra, (1979), is commonly known as the Mathura Rape Case. This case revolved around the custodial rape of a young girl named Mathura. 

Facts

Mathura’s parents died when she was a child and she lived with her brother. Both of them worked as labourers. Mathura used to work in the house of Nunshi and there she met Ashok, who was the nephew of Nunshi. They developed a relationship and they decided to marry.

Mathura’s brother lodged a police report that Mathura had been kidnapped by Nunshi, her husband and Ashok. The police brought all three people named and recorded their statements. Everyone was asked to leave, except Mathura. The police asked her to wait at the police station.

The prosecution stated that after everyone left, one accused/appellant named Ganpat took Mathura into a latrine and raped her, dragged her outside and raped her again. Then the second accused/appellant sexually harassed her but could not rape her due to him being highly intoxicated. 

The three of them—Nunshi, Mathura’s brother and Ashok—standing outside grew suspicious and shouted to attract the crowd. The complaint was lodged. A doctor examined Mathura and estimated her age to be 14-16 years old and her hymen revealed old ruptures. There was the presence of semen only in her clothes. 

The Sessions Judge held that there was no satisfactory evidence to prove that the victim was under 16 years on the date of occurrence. It was also stated that the victim lied and simply had sexual intercourse at the police station and the occurrence of rape is not proven. Moreover, the Judge remarked on the character of the victim, stating that she was habituated to sexual intercourse and used rape just to save her virtue. The District Judge acquitted the accused constables.

The High Court reversed the order of acquittal. The High Court found that forced sexual intercourse amounted to rape. The accused appealed to the Supreme Court.

Issues

  • Whether the two accused constables were liable to be punished under Section 376 and Section 354 of IPC for rape and outraging modesty, respectively?
  • Whether a minor girl is capable of giving consent for a sexual act?
  • Whether there was an occurrence of a forceful sexual act?

Judgement

The Supreme Court reversed the order of conviction of the High Court and acquitted the accused. Agreeing with the Sessions Court, the Supreme Court held that it was a consensual intercourse as there were no injury marks, no resistance, and no attempt to raise an alarm. It led to the conclusion that it was consensual sexual intercourse and not rape. 

After effects

The Supreme Court had acquitted the accused, which led to widespread criticism regarding its logical reasoning. After the judgement, four law professors wrote an open letter to the Supreme Court questioning the judgement. But even after such large-scale opposition, there was no initiation by the Supreme Court to change their verdict. However, this brutal case led to certain major amendments through the Criminal Law Amendment Act passed in 1983. Some of the changes being:

  1. Section 114A was added to the Indian Evidence Act, 1872, which provided that if the victim says she did not consent to the sexual intercourse, the Court ‘shall presume’ that she did not consent; hence, it was made mandatory to accept the victim’s testimony in this regard.
  2. Section 376 of the IPC received more additions in the way of Sections 376A, 376B, 376C, and 376D. Section 376A prescribes punishment for those cases in which the victim of rape died or fell into a persistent vegetative state as a consequence. Section 376B penalises sexual intercourse by husband on wife during separation. Section 376C made custodial rape a punishable offence. Lastly, Section 376D provides punishment for gang rape.
  3. The amendment also shifted the burden of proof from the victim to the offender once it was established that sexual intercourse took place without the victim’s consent.
  4. Publication of victim’s identity was also banned and rape trials were held to be conducted in camera.

Rupan Deol Bajaj v. K.P.S. Gill (1995)

This case is popularly known as the “Butt Slapping Case” and was one of the most publicised, high-profile legal cases in India. It remained highlighted in the media for many years. In this case, the then Director General of Police in Punjab, K.P.S. Gill, was held guilty of the charges of molestation. The case went on for 17 years and finally, in 2005, the Supreme Court gave the final verdict.

Facts

The incident took place at a dinner party where Mr. K.P.S. Gill, the Director-General of Police, Punjab, at the time, had slapped R.D. Bajaj on her posterior in the presence of all.

Around 10pm on the night of the dinner, Mr. Gill joined the ladies’ circle. Mrs. Bajaj was already engaged in another conversation when she was requested by Mr. Gill to sit next to time in the pretext of talking about something. When she went to sit in the chair next to him in response, Mr. Gill suddenly pulled the chair close to his chair. Mrs. Bajaj was taken aback by this sudden gesture. When she tried to sit on the chair in its original place, Mr. Gill repeated the same gesture. Mrs. Bajaj realised something was wrong and left the place and sat with others like she did previously.

After some time, Mr. Gill came and stood very close to her and asked her to get up and come along with him, gesturing the same with the crook of his fingers. She objected and asked him to leave. He repeated the same thing. Finally, Mrs. Bajaj decided to leave the place herself, as she was frightened. Mr. Gill blocked her way. 

With no other alternative, when Mrs. Bajaj drew her chair back and turned backwards, Mr. Gill slapped her on her posterior.

Then Mrs. Bajaj registered a complaint accusing Mr. Gill of offences under Sections 341 (punishment for wrongful restraint), 342 (punishment for wrongful confinement), 352 (punishment for assault or criminal force), 354 and 509 of the IPC. The complaint was treated as an FIR and a case was registered at the Central Police Station in Chandigarh. An investigation was also initiated. 

The husband of Mrs. Bajaj was the senior I.A.S. officer of the Punjab Cadre and he lodged a complaint in the court of the Chief Judicial Magistrate for the same. 

He alleged that since Mr. Gill was a high ranking police officer, the police had neither arrested Mr. Gill nor conducted a fair and impartial investigation. Since he perceives that the police will obstruct the course of investigation and not help in attainment of justice, he has filed the complaint.

The Chief Judicial Magistrate transferred the complaint to the Judicial Magistrate, who asked the Investigating Officer to submit the investigation report.

On the other hand, Mr. Gill filed a petition in the High Court of Punjab and Haryana under Section 482 of the Code of Criminal Procedure, 1973, seeking that the FIR and the complaint made against him be quashed. The High Court passed an interim order putting a hold on the investigation but allowing the proceeding related to the complaint. The Judicial Magistrate proceeded with the complaint and heard the matter. The claim of privilege under the Indian Evidence Act was rejected.

Assailing this order, the State of Punjab filed a Criminal Revision Petition, which was allowed by the High Court. The High Court also entertained the petition filed by Mr. Gill under Section 482 CrPC and allowed it quashing the FIR and the complaint. The High Court mentioned that the accusations mentioned in the FIR do not constitute any cognizable offence and that the act that took place with Mrs. Bajaj falls under the scope of Section 95 of the IPC.

Mr. and Mrs. Bajaj filed a petition challenging this order of the High Court.

Issues

Two issues can be formed from the above-mentioned facts:

  • Whether the allegations mentioned in the FIR by Mrs. Bajaj constitute any offence under the IPC?
  • Whether the High Court was correct in quashing the FIR and the complaint exercising its powers under Article 226 of the Constitution?

Judgement

The Supreme Court stated that, as per Sections 354 and 509, the act done by the accused did amount to outraging the modesty of a woman. However, the Court held that the offences of Section 341, 342, and 352 of the IPC were not committed and thus, it denied the claims of their commission.

The Supreme Court also mentioned that the High Court was not justified in applying Section 95 IPC. This act of the High Court was highly criticised because outraging a woman’s modesty cannot be considered to be a trivial matter.

Thus, the Supreme Court set aside the judgement of the High Court and dismissed the petition by Mr. Gill under Section 482 of the CrPC. It was further directed that the Chief Judicial Magistrate proceed with the case concerning the offences under Sections 354 and 509 and give a verdict based on the facts and evidence as provided.

Timeline after the SC verdict

The Chief Judicial Magistrate conducted a trial. The accused was held guilty under Sections 354 and 509 and sentenced to imprisonment (three months of rigorous imprisonment and two months of simple imprisonment) with a fine.

The accused appealed to the Session Court. It confirmed the conviction and directed release on probation while increasing the fine amount imposed.

The accused appealed to the Punjab and Haryana High Courts against the decision of the Session Court. The High Court upheld the decision of the Session Court and again increased the fine amount.

Again, the accused appealed to the Supreme Court. In 2005, the Supreme Court upheld the conviction and reduced the sentence to probation.

After effects

Criminal litigation

This incident is among those cases that took place when there was no definition or mention of “sexual harassment” in the legal provisions. Naturally, the only redressal that can be resorted to were the provisions of Sections 354 and 509. This case was highly mentioned, even in the social media movement #MeToo. 

This case highlighted the gap in the legal framework, since in the absence of more defined provisions, the victim had to take recourse to the limited provisions of Sections 354 and 509. The need for further reforms and laws on sexual harassment was also felt. Since there were no adequate provisions to cover the offence, the victim had to struggle for a long period and, after that, received only partial justice. The case of Vishaka took place shortly after this incident, which finally led to recognition of “sexual harassment.”

Vishaka v. State of Rajasthan and others (1997)

This is a landmark case for the topic of sexual harassment, as this case led to the enactment of the Criminal Amendment Act, 2013, which in turn gave recognition to “sexual harassment” as a distinct offence. The Supreme Court in this case provided guidelines for dealing with sexual harassment at work. The guidelines are called “Vishaka Guidelines.”

Facts

A social worker named Bhanwari Devi worked with families in her village to stop child marriages. One particular day, she was working to stop the marriage of an infant girl child. 

The Sub Divisional Officer and the Deputy Superintendent of Police had gone to stop the marriage but it was performed nevertheless and no further police action was taken against the incident. It was discovered that Bhanwari Devi was responsible for causing the police interference to stop the marriage. This led to people boycotting her and her family. Another consequence was that she lost her job.

As a result of this, 5 men, among whom 4 belonged to the mentioned family, attacked Bhanwari Devi and her husband and gang-raped her in front of her husband.

When Bhanwari Devi and her husband approached the police for help, the police refused to file an FIR out of political pressure and also refused to conduct any investigation. When she visited the hospital to get medical help, the medical examination was delayed by 52 hours, and there was no mention of “rape” in her medical report. Only her age was mentioned. 

After this, Bhanwari Devi and her husband approached the Trial Court in Rajasthan. Due to the absence of evidence and with the help of political influence, the accused got acquitted. This acquittal received backlash and all the women activists and organisations supported Bhanwari Devi. Together, they filed a Public Interest Litigation in the Supreme Court.

Issues

  • Whether the decision of acquittal by the Trial Court is violative of Articles 14, 15, 19(1)(g) and 21 of the Constitution of India?
  • Whether the employer has any role or responsibility in cases of sexual harassment in their workplace?
  • Whether international conventions and norms play some role in the absence of domestic law in a particular field?

Judgement

A three judge bench of the Supreme Court headed by Justice J.S. Verma decided this case. 

  • Regarding violations of fundamental rights, it was first stated that though the Constitution does not specifically define ‘Gender Equality’, it is included in Articles 14, 19, and 21. The Court stated that this incident has revealed the dangers faced by women in the workplace and the extent to which sexual harassment cases can worsen. Each such incident is a violation of the fundamental rights of ‘Gender Equality’ and ‘Right to Life and Liberty’ i.e., such incidents are a clear violation of rights under Articles 14, 15, and 21 of the Constitution.

In this case, there was also a violation of the fundamental right under Article 19(1)(g). 

All these violations attract the remedy under Article 32 for enforcing these fundamental rights of women. 

In this situation, the Court deemed it appropriate to issue a writ of mandamus along with directions for prevention. The right ensured under Article 19(1)(g) for carrying on any occupation, trade, or profession depends on the availability of a safe working environment. Right under Article 21 ensures a life with dignity, which has to be secured through suitable legislation and creating such a mechanism that enforces that legislation. 

The Court concluded that every incident of sexual harassment at the workplace demands an effective redressal which can be possible only if some guidelines are laid down for the protection of these rights of women to fill the absence of legislation for the time being.

  • The guidelines issued as a result of this case mentioned the roles and responsibilities of the employer to provide redressal as well as protection in sexual harassment cases in workplace.
  • In the absence of any domestic law, to formulate effective measures to curb the evil of sexual harassment of women at workplaces, the International Conventions and norms play a significant role in interpreting the guarantees of gender equality and the right to work with human dignity provided in the fundamental rights. The power of the Parliament to enact laws for implementing International Conventions is implied in Article 51(c) as well.

Considering the urgency for providing safeguards as an alternative mechanism as there was no such legislative measure available to provide protection to women in their workplaces, the Court enacted certain guidelines named “Vishaka Guidelines” to fulfil this social need. 

In simpler terms, the Vishaka Guidelines have been provided as follows:

  1. It shall be the duty of the employer or related responsible persons in workplace and other institutions to prevent or deter the commission of acts of sexual harassment and to provide procedures for resolution, settlement or prosecution of sexual harassment acts by taking necessary steps.
  2. ‘Sexual Harassment’ has been defined clearly. It has been defined to include “unwelcome sexually determined behaviour,” made directly or implied, such as:
    1. Physical contact or advances,
    2. Demand or request for sexual favours,
    3. Sexually coloured remarks,
    4. Showing pornography, 
    5. Other unwelcome physical, verbal, and non-verbal conduct of sexual nature.

The commission of these acts must be in a circumstance where the victim has a reasonable apprehension that such conduct can be humiliating and may pose a health or safety problem in her employment or work. The woman must have reasonable grounds to believe that her objection might cause problems with her employment or work. 

  1. Preventive steps have been provided, which include:
    1. Express prohibition of sexual harassment at workplace is to be notified, published, and circulated in appropriate ways.
    2. The Rules and Regulations relating to discipline are to include rules and regulations prohibiting sexual harassment and also provide penalties for offenders.
    3. In the private sector, the prohibitions are to be included in the standing orders under the Industrial Employment (Standing Orders) Act, 1946.
    4. Appropriate work conditions are to be provided. It is to be ensured that there is no hostile environment towards women.
  2. If there is any commission of an offence under the IPC, the employer has to initiate action as per law by complaining to the appropriate authority.
  3. If there is misconduct in employment, appropriate disciplinary action is to be initiated by the employer as per the relevant service rules.
  4. A complaint mechanism is to be created in the organisation for redressal of complaints made by victims.
  5. For the said purpose, a Complaint Committee is to be set up with a special counsellor or such other support service and all the details should be kept confidential. 

The Committee should be headed by a woman and should have at least half of its strength as women. It should also involve a third party, like an NGO, to prevent influence or pressure from senior levels.

The Complaints Committee will also provide an annual report to the concerned government department.

  1. As for workers’ initiative, employees should be allowed to raise issues of sexual harassment in meetings and in other appropriate forums.
  2. Awareness should be created about the rights of female employees. The guidelines are to be notified for this purpose.
  3. When there is occurrence of sexual harassment and the culprit is an outsider, the employer and the person-in-charge will take the necessary steps and assist the victim by both providing support and taking preventive actions.
  4. These guidelines are to be observed in the private sector as well.

After effects

After the Rupan (supra) case, the need for sexual harassment laws was felt. After the Vishaka case, the issue of sexual harassment, especially at the workplace, was addressed. Accordingly, guidelines were issued, which worked as a temporary measure till definite laws were introduced and enforced which would provide a special law for sexual harassment, in particular, for the protection against such crimes at workplace and also elaborating a redressal mechanism for the victims of such crimes.

Later, the National Commission for Women prepared a Code of Conduct for the Workplace and drafted various bills regarding this subject. Finally, in December 2010, the Protection of Women Against Sexual Harassment at Workplace Bill, 2010 was presented.

Medha Kotwal Lele and Others v. Union of India and Others (2012)

When this case was brought before the Supreme Court, the Protection of Women Against Sexual Harassment at Workplace Bill, 2010 was still pending in Parliament. The Vishaka guidelines were in force and though many years had lapsed since the introduction of the guidelines, their implementation was lacking. 

Facts

Medha Kotwal was the facilitator of Aalochana, which is a centre for documentation and research on women and other women’s rights groups. She, along with others, presented a writ petition to the court, highlighting a number of cases of sexual harassment and stating that the Vishaka guidelines were not being implemented effectively. 

The petitioners argued that despite the guidelines, women continued to get harassed in the workplace because the guidelines were not being abided by properly.

Issues

  • Whether the Vishaka guidelines were properly implemented?
  • What further steps can be taken to ensure effective implementation?

Judgement

The Supreme Court observed that even after 15 years of laying down the Vishaka guidelines for the prevention and redressal of sexual harassment, many women continue to struggle to have their most basic rights protected at their workplaces. 

The Court recalled the Beijing Platform for Action regarding violence against women, which stated-

Violence against women both violates and impairs or nullifies the enjoyment by women of human rights and fundamental freedoms (…) in all societies, to a greater or lesser degree, women and girls are subjected to physical, sexual and psychological abuse that cuts across lines of income, class and culture”. 

It was stated that the Vishaka Guidelines had to be implemented in form, substance and spirit so as to ensure gender parity and also to ensure that women work with dignity, decency and due respect. 

The Court held that a number of states were not properly implementing the Guidelines and the Central and State Governments were requested to consider adoption of necessary measures, including legislation, to ensure that the Vishaka Guidelines are observed by the private sector employers as well. 

It was held that the Vishaka Guidelines should provide direction till the Protection of Women Against Sexual Harassment at Workplace Bill, 2010 was enacted. Further directions were given by the Court, which included the following:

  1. Complaint Committee as provided in Vishaka’s case, will also function as an inquiry authority regarding Central Civil Services (Conduct) Rules, 1964 (CSS Rules) and the reports of such committee will be considered as an inquiry report under the CSS Rules. The Disciplinary Authority will act on the report in accordance with the rules.
  2. Similar and necessary amendments are to be made in the Industrial Employment (Standing Orders) Rules, 1946.
  3. Appointment of a State level officer who is in charge and concerned with the welfare of women and children in each State.
  4. The Labour Commissioner of each State is to take steps to ensure compliance of directions in factories, shops and commercial establishments. 
  5. The Bar Council of India, the Medical Council of India, the Council of Architecture, the Institute of Chartered Accountants, the Institute of Company Secretaries and such other statutory institutes need to ensure that all the organisations, bodies, associations, persons, and institutions, registered or affiliated with them comply with the Vishaka Guidelines.

Lastly, it was held that in cases of non-compliance, the aggrieved person can approach the High Court of the concerned State.

After effects

Subsequent to this judgement, the Protection of Women Against Sexual Harassment at Workplace Bill, 2010 was passed in September 2012. In 2013, the Criminal Law (Amendment) Act, 2013 was passed, which finally inserted Section 354A in the IPC.

S.P.S. Rathore v. CBI (2016)

This case is also known as the Ruchika Girhotra case. The 14 year old victim was molested by a powerful Haryana police officer in 1990. Realising that there is no scope of receiving justice, the victim committed suicide after 2 years of the incident.

After 20 years, the High Court convicted the accused and sentenced him to imprisonment. Even the Supreme Court upheld the judgement of the High Court. It took 26 years for the counsel representing the victim to bring justice to the victim. The case highlighted the flaws prevalent in the Indian legal system, which is often incapable of providing protection and guaranteeing justice to the victims of sexual harassment and sexual abuse. The case of Ruchika Girhotra led to the introduction of new laws and amendments and one of them was the POCSO Act. 

Now, we will go through the details of the case.

Facts

The accused, SPS Rathore, was an Inspector General of Police. He had opened a Haryana Lawn Tennis Association. The victim, Ruchika Girhotra, used to receive training in that association. 

The accused visited the house of the victim one day in 1990. During that time, Ruchika was on the tennis court for practice hence, the accused met with Ruchika’s father, who requested that he not send his daughter abroad and suggested that he will arrange for special training for her. He also asked her father to let her meet him the next day for the said special training.

The next day, Ruchika went to the accused’s office to meet him. She was accompanied by a friend of hers.

Her friend was sent out under the pretext of calling some other coach. When she came back, she saw that the accused had grabbed the victim’s hands and hips and had pushed his body onto her body. On seeing her, the accused got frightened, released the victim and fell on his chair. Despite the attempts of the accused to make the victim stay back again, she escaped with her friend. 

Ruchika informed her friend about the incident and they both decided not to inform anyone, including their parents, as the accused was the Inspector General of Police and thus, holding a powerful position, there is a possibility that he could harass or involve their parents. 

From the next day, the victim and her friend decided to go for practice at a different time to avoid the accused. Even after that, the accused had tried to call her in his office with the intention of molesting her. After that, both of the girls decided to disclose the incident to their parents. 

Their parents gathered the parents of the other trainees, documented a notice against the accused and also sent copies of it to the higher officials. 

Based on the report and on the approval and direction of the Home Minister, an inquiry was conducted. It was concluded that the allegation of molestation was based on true facts and a cognizable case was made out against the accused under the IPC.

The investigation went on for almost three years. The victim committed suicide in December 1993. Despite recommendations to register the case, no action was taken. A writ petition under Article 226 of the Constitution of India was filed before the Punjab and Haryana High Court. The High Court directed the registration of the case and also directed that the investigation be handed over to the Central Bureau of Investigation (CBI). The Supreme Court also upheld the order of the High Court. A FIR was registered under Sections 354 and 509 of the IPC against the accused. 

Finally, the accused was convicted and the Court of Chief Judicial Magistrate of Chandigarh held the accused guilty under Section 354 IPC and sentenced him to rigorous imprisonment for six months along with a fine. 

The accused filed a criminal appeal before the Court of Additional Sessions Judge. On the other hand, the CBI and the counsel for the victim also moved an appeal for enhancement of sentence. The Court of Additional Sessions Judge allowed the appeal of the CBI and the counsel for the victim and enhanced the imprisonment. The accused was sentenced to rigorous imprisonment for one and a half years; the fine remained unchanged.  

The accused filed a revision petition before the High Court, which was dismissed.

Finally, the accused filed a special leave petition before the Supreme Court. The Supreme Court allowed the petition for bail. Though the accused was declared as a convict, the imprisonment term was reduced to six months. Further, considering the case to be an exceptional case, and the age of the accused, the Court accepted that the accused had served his sentence and allowed him bail.

Issues

The main issue is whether the act committed fell under the scope of Section 354 IPC.

Judgement

All the courts have found the accused guilty of committing the offence under Section 354 IPC. 

The Court of Chief Judicial Magistrate sentenced the accused to six months of rigorous imprisonment along with a fine.

The Additional Sessions Judge enhanced the imprisonment to one and a half years, keeping the fine the same.

Finally, the Supreme Court also upheld the conviction but reduced the imprisonment to six months again. Considering the old age of the accused, the Supreme Court also allowed him bail and set him free, as he had already served six months. 

After effects 

The fact that the accused was sentenced to a mere six month imprisonment for molesting a minor girl was mainly blamed on the age old statutes, which were lacking amendments to protect child victims of sexual molestation. 

It took 26 years to finally get justice, only if there were stringent laws and the time taken was not this much, the victim would not have ended her life. This case not only highlighted the need to have special legislations for child protection from sexual crimes but also questioned the justice system, which allowed the convict of molestation to get away with a minor imprisonment sentence, and that too, after years of committing the crime. 

This case led to an entire debate in Parliament regarding the extent of punishment given. Finally, in 2012, the POCSO Act was introduced as the first law for protecting against child sexual abuse. 

Anamika v. Union of India and Ors. (2018)

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 is not a gender neutral Act and ensures protection to women only. The existing provisions, in no way, denote that they are gender neutral and apply to transgender persons as well. There is no direct provision or direct phrase from which it could be inferred that the laws against sexual harassment extend their protection to them.

If we go through the judgement of NALSA v. Union of India (2014), transgender persons got recognized as a ‘third gender’. With time, a separate Act named the Transgender Persons (Protection of Rights) Act, 2019 was enacted to promote their rights and welfare. 

Harmonising the Transgender Act and the NALSA case with the present topic, it can be considered that the 2013 Act applies to transgender women as well and provides them protection. The above-mentioned judgement of Anamika v. Union of India (2018) appears in line with this discussion. The Delhi High Court, through this judgement, held that protection under Section 354A is also applicable to transgender persons, meaning that if a complaint under Section 354A is made by a transgender person, such complaint will be registered and proceeded with in accordance with the law, just like it would have been done if the complaint was made by a female. 

Facts

The petitioner was a transgender person, identifying as a woman though assigned ‘male’ sex at birth. The petitioner was a student at Delhi University and was sexually harassed by some male students on campus in 2017-2018. 

As per the petitioner, during the first semester, the petitioner was constantly bullied, publicly humiliated and harassed. The male students made obscene comments and passed lewd remarks regarding the petitioner’s feminine appearance and expression. They also made sexually coloured remarks about the petitioner’s gender identity. They also sexually harassed the petitioner through unwelcome sexual overtures.

The petitioner complained to the college authorities but got no relief. The male students continued to harass in public places and classrooms, using words like “halwa,” “meetha,”  etc., which is derogatory and refers to the fact that the petitioner, being effeminate in appearance and expression, was “delicious” and meant to be “consumed.” These slurs are commonly used to sexually harass transgender persons. Apart from this, the petitioner mentioned more of such incidents in the petition.

The petitioner had complained to the Disciplinary Authority, who, despite assuring that strict action will be taken, did not take any steps as per the knowledge of the petitioner. 

Amidst all this, due to being severely disturbed and distressed, the petitioner missed her two papers in the final examination.

The incidents suffered by the petitioner fall under the description of offences under Section 354A of IPC but the police refused to register an FIR because the petitioner was not a “woman” for the purposes of the provision. The Investigating Officer stated that sexual harassment can be committed by a “man” against a “woman” only and doubted if the petitioner can file a complaint under Section 354A as a transgender person is not a “woman.”

The petitioner also wrote letters to the Deputy Commissioner of Police and Assistant Commissioner of Police complaining that no action had been taken on her complaint. 

Subsequently, the petitioner received a document that stated that no criminal provision was applicable relating to sexual harassment in her case as the petitioner was a transgender woman.

Hence, the petitioner filed a petition challenging Section 354A, arguing that it has been wrongly interpreted to give confined protection to only a stereotypical “woman” and denies protection to a complainant who does not fit in the stereotypical and binary notion of “woman” based on sex assigned at birth. 

According to the petitioner, this violated the fundamental rights under Articles 14, 15, and 21 of the Constitution of India and was also contrary to the decision of the Supreme Court in the case of NALSA.

Petitioner’s Contentions

The petitioner referred to Article 14 ensuring the right to equality, the NALSA judgement, and the Vishaka judgement and highlighted that transgender persons have equal entitlement to enjoy their rights and freedoms and that protection from sexual harassment and abuse is included in the fundamental rights of a person.

The petitioner stated that a bare reading of Section 354A clarifies that acts of sexual harassment are taken cognizance of only when they are committed by a “man”- this condition is already fulfilled in the case of the petitioner. Moreover, the provision does not specify the gender of the victim, though it does mention that of the perpetrator. 

Clauses (i), (ii), and (iv) of Section 354A(1) do not specify any gender in respect of the person against whom the acts of sexual harassment have been committed. Hence, the petitioner questioned if the acts mentioned in clauses (i), (ii), and (iv), which are disjointed, can be taken cognizance of when the victim is a transgender person.

Moreover, clauses (i) to (iii) share a common penalty, while clause (iv) is stand-alone and has a separate penalty. The petitioner’s case attracts the description provided in clause (iv). Thus, it ought to have been invoked against the perpetrators. 

Since Section 354A, in its three clauses, as mentioned above, does not mention the gender of the victim, it is contended by the petitioner that it will be wrong to restrict the application of the entire section to the victims who are “women” on the basis of clause (iii).

Respondent’s Contentions

The counsel from the side of the Delhi police stated that an FIR based on the complaint has been made under Section 354A and an investigation is also in progress. It was further mentioned that, as per the instructions of the Commissioner of Police, Delhi, if a transgender person files a complaint under Section 354A, in particular clauses (i), (ii), and (iv), then the same shall be registered.

Issues

Whether Section 354A will provide protection to transgender persons?

Judgement

Since the respondent side had complied with the claims of the petitioner, the proceeding was not pressed further. However, the High Court of Delhi observed that a cognizable offence under Section 354A IPC, particularly under sub-clauses (i), (ii) and (iv), can be made if the complaint is by a transgender person who identifies as a woman and such a complaint ought to be registered in accordance with the law and according to the decision of the Supreme Court in the NALSA judgement. 

Pawan Kumar Niroula v. Union of India and others (2021)

In this recent landmark case, the Calcutta High Court explicitly held that the provisions of the POSH Act, 2013 are applicable to female students of a school. 

Facts

The petitioner is a teacher appointed by the respondent, Navodaya Vidyalaya Samiti, as a Nepali Trained Graduate Teacher (TGT). 

On February 20, 2020, the principle of Jawahar Navodaya Vidyalaya, Ravangla, South Sikkim, who is also a respondent, filed a written complaint in the Ravangla Police Station stating that he had received complaints from many students of his school against the petitioner teacher alleging that the petitioner had committed sexual harassment, in particular, molestation. The principal added that he had set up an internal committee to look into the complaints after that.

It was further stated that around 67 students had mentioned in their complaint submitted to the internal committee that they were personally harassed by the petitioner. On these allegations, the principal requested that the police take the necessary legal action against the petitioner.

Accordingly, the complaint was registered under Section 10 of the POCSO Act, 2012. The petitioner was arrested but was later released on bail.

Then, the petitioner was placed under suspension, the period of which kept on increasing for months. The suspension was done in accordance with the Central Civil Services (Classification, Control and Appeal) Rules, 1965. While the suspension was going on, the respondent school authorities had informed the petitioner that a committee for summary trial was constituted to inquire into the allegations made against him. This was done in place of the regular disciplinary proceedings as per the CCS Rules, 1965.

The petitioner contended that as the complaint against him is of sexual harassment at the workplace, the school authorities ought to have constituted an internal complaints committee and that committee should have been considered the inquiring authority as appointed by the disciplinary authority. In this backdrop, the petitioner challenged the order on the ground that the Tribunal ought not have directed the school authorities to continue with the order of the summary trial, which had no legal force in view of the existence of the POSH Act, 2013.

Issues

It was admitted that the CSS Rules, 1965 were applicable to the teachers of the above-mentioned school since the school was financially aided entirely by the Central Government. On the other hand, the legal framework regarding sexual harassment at the workplace underwent major changes after the Vishaka case and with the enactment of the POSH Act, 2013, which provides a mechanism to handle sexual harassment cases.

The issue was whether the POSH Act was applicable to female students at a school?

Judgement

The Calcutta High Court referred to Section 2(a) of the POSH Act, 2013, which defines “aggrieved woman,” which is stated to mean a woman, irrespective of her employment status, who has alleged that she has been subjected to any act of sexual harassment. Considering this definition, it was held that the provisions of the POSH Act do apply to the female students of the school as well.

Guduridheeraj Kumar v. State of Andhra Pradesh (2022)

In this case, it was held by the Andhra Pradesh High Court that touching a woman’s body  when she is sleeping amounts to “sexual harassment” under Section 354A of the IPC. 

Facts

The complainant had lodged a report with the police stating that her husband, his relatives and family members have subjected her to physical and mental cruelty and have made illegal demands. 

The complainant had stated that, when all the family members went to Araku, the accused-petitioner, who is the brother of the husband, had misbehaved with her. A report was made and the same was registered as a criminal case in the Women Police Station, Visakhapatnam City. The case was registered under Sections 498-A, 354A and 506 of the IPC, along with Sections 3 and 4 of the Dowry Prohibition Act, 1961. 

In her statement recorded under Section 161 of CrPC, the victim-complainant stated that all the family members had gone to Araku. During the night when she was sleeping, the accused-petitioner came and placed his hands on her, which led her to wake up. This was held to be an offence punishable under Section 354A by the complainant’s side. 

Though it has been contended by the petitioner that he has been falsely implicated with false allegations, the public prosecutor from the complainant’s side argued that the act committed by the petitioner certainly constitutes the offence of sexual harassment under Section 354A of the IPC.

Issues

The issue relating to sexual harassment was whether the act of touching a woman’s body when she is sleeping amounts to the offence of sexual harassment, as provided under Section 354A?

Judgement

The Andhra Pradesh High Court held that on reading the provision of Section 354A, it is clear that when a man commits any act of “physical contact and advances,” which include “unwelcome and explicit sexual overtures,” he shall be held guilty of the offence of sexual harassment. Considering the same and the ingredients mentioned under the provision, it was held that the act committed by the petitioner constitutes a prima facie offence punishable under Section 354A.

Janak Ram v. the State (2023)

This case pertains to an incident where a woman constable was referred to as “Darling” in an inappropriate way. When this case came up before the Calcutta High Court, it held that referring to an unknown woman as “darling” is a kind of sexual harassment and comes under the purview of Section 354A and is punishable. Let us discuss the case in detail.

Facts

As per the facts stated by the prosecution, the victim police constable along with her team were proceeding to Lall Tikrey for maintaining law and order during a Durga Puja evening. Reaching near the Webi junction, they received information that someone was creating a nuisance in the area. 

The police team reached the spot, arrested the wrongdoer and brought him to the police station. The victim and some of the police personnel stayed back at the place.

In the dark, the victim, along with the other police personnel, decided to stand under a street light in front of a shop.

The accused was standing in front of the shop. When they reached the street light, the accused passed the victim a sexually coloured question, “Kya darling, challan karne aai hai kya?”

A police complaint was lodged under Sections 354A(1)(iv) and 509 IPC. The accused was arrested and also given extended bail. A charge-sheet was submitted, charges were framed and the accused pleaded not guilty. A trial was conducted.

The Learned Judicial Magistrate, First Class, by a judgement and order, convicted the accused under Sections 354(1)(iv) and 509 and sentenced him to simple imprisonment for three months along with a fine.

The accused filed a criminal appeal. The Learned Additional Session Judge dismissed the appeal and directed the appellant to surrender and serve the imprisonment sentence.

Hence, the accused approached the Calcutta High Court with a revisional application challenging the judgement and order of the Additional Session Judge.

Issues

Whether the word “darling” constitutes a sexually coloured remark under Section 354A?

Judgement

The Calcutta High Court stated that – “addressing an unknown lady, whether a police constable or not, on the street by a man, drunken or not, with the word “darling” is patently offensive and the word used is essentially a sexually coloured remark.”

Regarding the defence that there is no proof to show that the man was drunk, the High Court added that if the man is found to be in a sober state, it would further increase the gravity of the offence. 

It was held that the facts of the case establish the prosecution side beyond reasonable doubt and since two successive criminal courts have concluded the same judgement regarding the guilt of the accused, the same conclusion was upheld. Finally, the Court affirmed the conviction as imposed by the Trial Court, which was also upheld by the Sessions Court.

Frequently Asked Questions  (FAQs) 

What does Section 354A of IPC provide for?

The provision of Section 354A defines sexual harassment and states the punishment for it.

What is the punishment under Section 354A?

There are four clauses mentioning four different acts that are considered to constitute “sexual harassment.” Two separate punishments are provided for these four acts. 

Among them, clauses (i), (ii), and (iii), elaborated in the beginning, have a punishment of rigorous imprisonment of a maximum period of three years, a fine or both.

The stand-alone clause (iv) has a punishment of imprisonment of a maximum term of one year, a fine or both.

When was Section 354A introduced?

Section 354A was introduced in 2013 through the Criminal Law (Amendment) Act, 2013. 

Is Section 354A bailable?

Yes, the punishment is bailable. The offence is also triable by any Magistrate. 

Is Section 354A cognizable?

Yes, the offence is cognizable, which means that the police officer has to register the FIR when the victim approaches and files a complaint.

Can an accused under Section 354A be arrested without warrant?

Cognizable offence means that the police officer may be arrested without a warrant. An offence under Section 354A is cognizable, hence, the police officer can arrest the accused without any warrant.

References 

  • THE INDIAN PENAL CODE 1860
  • THE SEXUAL HARASSMENT OF WOMEN AT WORKPLACE (PREVENTION, PROHIBITION AND REDRESSAL) ACT, 2013
  • THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012
  • https://www.equalrightstrust.org/ertdocumentbank/Case%20Summary%20Medha%20Kotwal%20Lele%20Vs%20%20Union%20of%20India%20October%202012.pdf 
  • https://theleaflet.in/wp-content/uploads/2018/12/Anamika-UOI-Writ-watermark.pdf 
  • https://lexpeeps.in/rd-bajaj-v-k-p-s-gill/ 
  • https://thewire.in/women/rupan-deol-bajaj-kps-gill-case-me-too 
  • https://www.thehindu.com/news/national/explained-the-indian-law-on-sexual-harassment-in-the-workplace/article66854968.ece 
  • https://economictimes.indiatimes.com/news/politics-and-nation/weak-law-allowed-molester-dgp-to-smile-after-being-convicted/articleshow/5368369.cms?from=mdr 
  • https://poshatwork.com/judicial-precedents-leading-to-the-implementation-of-posh-act/ 

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