Vishaka v State of Rajasthan

This article is written by Raslin Saluja from KIIT School of Law, Bhubaneswar. This article enumerates and analyses the defences available for victims of false accusations of sexual harassment charges.

Introduction

Harassment in our society has existed long before we even had a specific term for it. The patriarchal society and the social construct is such that more women as compared to men are subjected to harassment. These frequent instances in turn led the laws and legislations to be shaped in a manner that recognizes only sexual assault towards women. This highlights the preconceived notion of even the legislature that men cannot be subjected to harassment or other crimes of sexual nature. These issues are deeply embedded in our perceptions of class and gender relations. Thus, most of these laws are framed to favour women and rightly so because there are genuine cases out there, however, it in no way should undermine the suffering of men. Thus, this article helps in exploring the ways where ingenuine charges are filed against men, making misuse of the power of law.

Sexual harassment as per the Indian laws

They are mainly dealt with under three codes, which are as follows:

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Indian Penal Code (IPC)

Under the general criminal law that is Indian Penal Code, 1860, Section 354(A) defines sexual harassment as a man committing any physical touch/contact/ advances which are unwelcome in nature of acts which are sexually explicit or in regard to making demands or requests of favours which are sexual in nature; or involve showing pornographic content to a woman against her will or making sexually coloured remarks.

Under Section 294, sexual harassment involves making obscene acts in a space open to the public or singing obscene derogatory songs causing annoyance. Since annoyance refers to a state of mental condition, it often needs to be backed by strong facts.

Under Section 509, it constitutes making ill-intended gestures or uttering words insulting and violating the modesty of a woman. This section requires the intention to insult, through words, gestures, an exhibition of any object that can be seen or heard by such a woman intruding upon her privacy.

The Indecent Representation of Women (Prohibition) Act, 1986

Further, the Indecent Representation of Women (Prohibition) Act, (1987) terms sexual harassment as causing harassment to another with books, photographs, paintings, films, pamphlets, packages, etc. containing indecent representation of women.

The Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act, 2013 

This Act specifically deals with sexual harassment and violence at the workplace and includes:

Making physical contact and advances, demand for sexual favours, making sexually coloured remarks such as sexist jokes or misogynist humour, showing pornography, any other unwelcome physical, verbal or non-verbal conduct of sexual nature. The Act goes on to include more five types of offences which are specifically in regard to professional setting. These are making any implied or explicit promise of preferential treatment in her employment, or causing implied or explicit threat of detrimental treatment in her employment, implied or explicit threat about her present or future employment status, interference with her work or creating an intimidating or offensive work environment for her and treating in a humiliating manner likely to affect her health or safety.

Punishment

  • For Section 354(A), the convict can be punished with rigorous imprisonment for a term which may extend to three years or fine or both.
  • For Section 294, punishment is being subjected to imprisonment for a term of up to three months or a fine, or both.
  • For Section 509, the specified punishment is imprisonment for one year, or fine, or both.
  • Under the Indecent Representation of Women (Prohibition) Act (1987), the convict is liable for a minimum sentence of two years.
  • Under the Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act, 2013, after the complaint is forwarded to the police, a case is registered within seven days under applicable sections of IPC and similar punishment mentioned above is imposed as required.

Unfair use of laws

Since the laws made are not gender-neutral, these laws act as a double-edged weapon for those who plan to misuse them. Sometimes we see false cases being instituted, sexual assault or harassment charges are levelled for reasons such as revenge, aggression, blackmailing, etc. Many activists working for men in a report said their helpline remains flooded with victimized men who were subjected to false allegations. For a country that fails to recognize certain crimes against men, this report reveals a lot. But to actually fight this evil, there is a dire need for society and lawmakers to take these incidents more seriously. In order to create a deterrent value while there is an absence of such laws, the least that can be done is by implementing rigorous prosecution of all false cases and evidence, along with the inquiry and investigation done by the police officers.

Fake cases

Though in real-life conversations, people do agree about the existence of fake cases, there is not enough data online to substantiate the cause. Currently, there is not any specific list maintaining the number of fake cases that can be openly published. As with time they are now being recognized in the form of cases filed with all sorts of ulterior motives, there have been instances where courts have taken the liberal approach and decided in favor of the innocent persons accused under the offence. To begin with, in a 2013 case, the former Tehelka editor in chief Tarun Tejpal was accused of sexual harassment and rape by his colleague and was recently granted acquittal after the seven long years based on no concrete evidence provided by prosecutrix and her glaring contradictory statements. However, the acquittal was again challenged by the Goa government and we are yet to witness the series of events that are to follow. 

While another case was filed under Delhi High Court, where a woman was booked on charges for furnishing false evidence and falsely accusing her employer of sexual harassment. She was also found to later deny the complaint lodged and any previous statements that were made by her. The court observed that they cannot stand as mute spectators in the face of false FIRs and that women cannot always be stereotyped as innocent gullible victims in all cases.

In another report, one IT professional said that his brother was accused of sexual assault by their neighbor but the girl did not turn up when the matter proceeded into the court’s hearing. While another said that when men turn down to offer monetary favors, they are blackmailed and threatened of being accused of sexual abuse. Another such instance was when two girls got into a fight for a parking spot in Noida and called 25-30 goons to beat up the victims and then filed a molestation case on them. 

Thus, there are numerous similar cases of false allegations of far more heinous crimes, but with time, we also observe that even judges have made sure that women driven by self-interest and benefits can no longer play the victim card in making malicious accusations and allegations.

Defenses

A perfect defense to the accusation of sexual harassment would depend vastly on the specific circumstance and facts of the case. However, under a very generic notion, one could argue that the basis of such accusation is not reasonable considering the complainant, the nature of their relationship, the context and premise it was set in, and the history of their communication which hints towards the absence of any reasonable basis for the claim.

As for the Indian Criminal System, it works on the Latin maxim “ei incumbit probatio qui dicit, non qui negat” meaning “innocent unless proven guilty”, however, the process of being declared innocent could be time taking considering the history of Indian Courts and backlog of the cases. In cases as severe as that of sexual harassment, it is best to not let things move at their own pace and take the responsibility on your hands. Especially when you know that you have been falsely accused, slow proceedings could immensely harm your reputation in society along with other personal and professional life losses. There are many ways wherein one can defend themselves depending upon the suitability of the stated facts.

  • If a woman is a habitual accuser/ liar: If she has a history of falsely or wrongly accusing an innocent individual, it could help in making the case stronger against her if with the help of past events, peer witnesses, relationships, it can be established that she is a habitual liar.
  • Witnesses presented: If one can manage to arrange and find strong witnesses who can testify against the individual’s character and their innocence. A lot of due consideration is placed by the courts on such testimonies which provide stable statements throughout the trial and proceedings in establishing the innocent character of the accused. It is best to present witnesses by whom you can swear their loyalty so that later on they do not turn hostile and weaken your case. It could be your trusted family members and friends, your professional or work colleagues and peers, people who have had previous relationships or similar past with the complainant.
  • Alibi: If an individual could prove that they were not present in that stated location at the stated time instead of somewhere else with certain evidence or witness, it can help them prove their innocence.
  • Juvenile: At the time of the commission of the offence, if the accused was juvenile, certain leniency might be granted while dealing with the proceedings.
  • Cross-examination may help in dealing with the false evidence and defining the nature of the relationship between the accused and the complainant, whether it is for revenge or for blackmailing and extortion of money which in this case can be proved through bank statements, cell phone history, call tapings and social media expert assistance. Relevance of the previous relationship of the accused and complainant can also be used to establish certain factors. This stage is essentially significant as it would help in outlining the major events on the basis of facts stated both by the prosecution and the accused. It helps in understanding the strategy of the prosecution and making the accused aware of any surprises that they might face in the court. It is an influential and effective tool in eliciting the truth.
  • Other things that can help in the acquittal of the accused are certain inconsistencies that can appear in the story paved by the prosecution, grounds based on the location, date, time, and nature of the act. The previous situation leading to the act, any prior history with the accused, and details about the events which occurred prior to and post the alleged act.
  • Sections 499 and 500, Indian Penal Code: So far as we have been talking about general defenses under Section 354A, these sections also come in handy as their main aim is to prevent harm to a person’s reputation. They pertain to committing the offence of defamation which if successfully established would lead to imprisonment which might extend to two years and a fine. Cases related to sexual harassment are very sensitive in nature as mentioned above due to the social construct of the society where women often are considered weak and at the receiving end of harassment. The legislations though intended to be beneficial for such suffering women, often these provisions can be misused against innocent individuals. With an already tarnished image of being involved in the case damages not only the present situation of an individual but also their future prospects. The above-mentioned section has certain preconditions that need to be fulfilled as the statement needs to be published (written or oral), and that it lowers the goodwill of the person before the rightful thinking members of the society. A case can be initiated under this section at any time.
  • Section 209, IPC: Herein anyone who fraudulently or dishonestly, or with intent to injure or annoy any person, makes any false claim, can be subjected to imprisonment for a term which may extend to two years, and shall also be liable to fine.
  • Section 211, IPC: Herein, if it can be proved that there has been a false accusation then the complainant would be subject to imprisonment extending up to seven years and a fine. It also has certain preconditions such as a charge should be instituted against the individual on the grounds of sexual harassment that it is malicious and false and has been filed by complainant despite knowing so. A complaint under the section can only be filed if the Magistrate or any other court has not yet taken cognizance of the offence of sexual harassment even though the status of the main case under police and investigation officer remains pending. The case of R.K.Selvarajan Chettiar v. S.Murugavel elaborates further on this provision. However, a still better way to file under this section is after the First Information Report (FIR) has been quashed or if the individual is acquitted in the main proceedings under Section 354A.
  • Section 14, The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013: Especially for sexual harassment cases set in a professional workplace premise as defined under Section 2(o) of the Act, the accused could take defense based upon the findings of the Internal Committee. Here the accused needs to cooperate with the committee as this provision is helpful only if the inquiry committee decides in favour of the accused and concludes the accusations as false. In other cases, one can file an appeal under Section 18 of the Act.

Conclusion

Filing fake cases not only amounts to abuse of law but also wastes a lot of time of the courts and the police. Due to this reason, the real cases of substance get overshadowed and do not receive the kind of attention they deserve. The laws need to evolve and become more inclusive towards men as well as the third gender in order to recognize the sufferings too. Thus, above mentioned are certain ways in which one can defend themselves in a case of harassment charges.

References

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