This article is written by Miss Srestha Nandy, pursuing B.B.A.LL.B(Hons.) from IMS UNISON UNIVERSITY, Dehradun. This is an exhaustive article which deals with the issues related to sexual harassment in India under various Indian laws.
Our lives begin to end
The day we become silent
About things that matter.
– MARTIN LUTHER KING, JR.
It happened, even without consent
Our Indian scenario truly delineates a silent society that is in the desperate urge to unfold the hidden realities to the unknown. Today’s milieu is composed of millions of stories in the mind of people with smiling faces. Irrespective of the fact, be it a male, female or transgender even a child or a senior citizen, have been a victim of sexual harassment. Some of the real stories include a female housekeeping being offered a note of 10 rupees in place of the house owner forcing himself on her while her working hours. Mental pressure and fear of losing the job had stopped her from disclosing this incident to his wife. Often penury situations along with insecurities like fear, low esteem, etc. pressurise people to not raise their voice and stand up for themselves. Whereas, on the other side of the story, even a male becomes the victim. There was an incident in 2017, where a man was sexually harassed online. Someone else was posting sexually explicit tweets, via the individual’s Twitter profile anonymously. He also received messages through WhatsApp and E-mail from a cyberstalker. It was found that the stalker was a woman who was also an acquaintance of Mr. Nair, the subject male individual.
Harassment in disguise
Harassment need not be confined to physical activities as the recent scenarios witnessed, related to cyberbullying, workplace harassment, power harassment, retaliation harassment, psychological harassment, etc. are also existing in our environment. Sexual harassment involves inappropriate promises, rewards in exchange for sexual favors or unwelcome sexual behavior that is offensive, humiliating, or intimidating, or use of explicit or implicit sexual overtones, etc. Harmonizing our Indian law, sexual harassment violates the fundamental right of gender equality and life with dignity under Article 14 and Article 21 of the Indian Constitution respectively. Other laws include Section 294 of the Indian Penal Code which deals with obscene acts by a person or singing, recitation, or utterance of any obscene songs or just words in a public place to annoy others. Section 354 of IPC talks about punishment for inflicting criminal force on a woman or assaulting her in order to outrage her modesty. Section 376 of IPC deals with rape. Section 510 of IPC deals with misconduct in public by a drunken person.
But our Indian laws have yet remained to be backward in the place of taking a stance for men and passing laws to protect them as well. In a survey, it had been found 53.9% of 115 people who were questioned for the survey believe that rape of men and boys is not an uncommon crime and it takes place more frequently than we are aware of, whereas, 45.2% believe that men being raped is not that common and is rare. Such surveys, to a great extent, draw a line to throw light upon the subsisting mentality of the society, where it states that narrow-minded people do exist in the society and harassment falls under the consequences of their actions. A news report from the Times of India newspaper highlighting a fact regarding male harassment in India, states – from the findings of a recent Economic Times-Synovate survey, the men need to be incorporated in that bill ASAP.
Of the 527 people queried across seven cities – Bangalore, Chennai, Delhi, Hyderabad, Kolkata, Mumbai, and Pune – 19% said they have faced some kind of sexual harassment at the office. In Bangalore, 51% of the respondents had been sexually harassed, while in Delhi and Hyderabad, 31% and 28% of those surveyed said they had been sexually harassed. Around 38% of the respondents across 7 cities in India said that in today’s workplaces, “men are as vulnerable to sexual harassment as women.” Therefore these surveys also support the fact that like women, men too need laws favoring them. Vishaka Guidelines came into action, for the protection of women in their workplace, after the case of Vishaka and Ors vs. the State of Rajasthan, when the petition was filed under public interest litigation on the grounds of violating fundamental rights. Unlike these, it would be wiser if in advance the laws were to be framed to deals with the cases which mostly get injustice due to lack of laws and implementation favoring the contempt for men and transgender.
Increasing cases of sexual harassment
Throwing light upon some real-life stories
- A twenty-four-year-old student of Kolkata was traveling in a crowded metro, where she could feel that a man brushed his genitals against her back which made her uncomfortable. She was afraid to raise her voice as she had often seen girls being asked to get off the train if they had too much problem.
- A twenty-eight-year-old lady was waiting in the cloakroom for her luggage, it was late at night, she was reading her book. Another man was sitting in front of her, but she felt an utmost uneasiness as that person was staring constantly which made her uncomfortable. Later on, when she spoke out, that man started to yell at her and said that, because of girls like you, rape cases occur.
Leaving these cases there are rape cases which are not rare. But there are also cases related to the LGBTQ community. Even there exist some cases which include harassment between the same genders. In such cases especially, consent being the most essential factor is absent completely or lacks from some angle, and due to the current society’s mentality, people take this issue lightly which leads to suppressions of the matters related to this. Due to the lack of acceptance of the transgender in today’s society, they become the victim of sex-trafficking and other sexual assaults. A report of the National Transgender Discrimination Survey found that 12% of the transgender youth report being sexually assaulted by peers or educational staff, 22% of the homeless transgender individuals were assaulted while staying in shelters.
According to the 2010 National Intimate Partner and Sexual Violence Survey, bisexual women experienced significantly higher lifetime prevalence of rape and other sexual violence by an intimate partner when compared to heterosexual women and significantly higher lifetime prevalence of rape, physical violence, and/or stalking by an intimate partner when compared to lesbian and heterosexual women. Some studies indicate that between 20 and 35% of LGBTQ couples experience domestic violence. According to another, 50% of transgender people surveyed had been hit by a primary partner after coming out as transgender. LGBTQ youth report a 30% incidence of dating violence, compared to 9% for heterosexual students.
Reasons for the increase in sexual harassment
One of the major reasons behind sexual harassment is the silence of the victims. In the cases where women become the victim, in majority of the situations, she keeps things to herself. In public buses or trains, the common reaction to this is that the woman might leave the seat or change her place, and only a very few raise their voices against it. And even once she does so, the chances of people coming to her rescue is quite rare. From a very young age, women are taught to tolerate things and are habituated to live in the deep-rooted patriarchy. Even the elders never expect any change favoring them and assume that the coming generations will continue with this situation.
Reasons along with statistics
- In a survey of 2016, 504 women were included in the polling procedure, from which the results turned out as four out of five women face sexual assault in public places like staring, insult, wolf-whistling, etc.
- A survey of 2011 noted that 50% of the sexual harassment occurs in public buses while traveling. To this, the question lies: why do women not complain about harassment?
- A study of 2020 held that many people are not aware of the various types of harassment. It was found that 38.1% of the victims and 42.2% of the offenders are aware of the laws relating to sexual assaults. In the words of Kaushik Gupta, Calcutta High Court, advocate “Often men do not even realize what is a violation. For women, it has been so naturalized in their systems that if a man is touching her inappropriately in a bus or a public place, she may normally try to move away a bit without raising her voice. At times, there are cases of abuse where the woman has not understood that she has been violated. One of the principal reasons is that as a society, we have very little or almost no understanding of informed, enthusiastic consent.”
The other factors of this can be loopholes in our legal system. In cases of rape, the victim is the one who faces the utmost humiliation. Firstly, he or she faces the assault, and after that during the medical examination or FIR, it is that person again, who is made to feel uneasy and has to give answers for all the questions revolving around the details of the horrifying incident. Also when such an incident takes place, one suffers from trauma, so that it is not comfortable for the victim to approach the police station again and again, above that their truth gets challenged constantly by the laws. It may also take place that adjournments get delayed due to legal loopholes.
Impact on society
There are specifically two major consequences of harassment, one can be out of fear and rebelling and the other can be depression and suppressing of emotions. In both the consequences, the suffering of the victims is common. It depends on the person who is dealing with it. As women are always taught to be under the veil especially in rural areas and not to raise their voices, and the tough reality of poverty makes them stick to the situations of uneasiness for the sake of pleasing the society, in fact in all situations, it is the victim who suffers. In cases of men, they are treated as hard and tough so for them raising their voice in this regard questions their manhood. In the cases of transgender, society does not pay attention to them and often violates their dignity.
Thinking of workplace sexual harassment, it becomes miserable for the women being vulnerable, it becomes difficult for the concerned female to tackle the situation. Here the person’s mind gets confused on various grounds, such as career, job, money, financial freedom, family, children, society, etc. And once a mark gets splashed upon a lady, in reality, society tends to treat that person as if she has done something wrong. In many cases, women often get offers to perform sexual favors in return for promotions or can be threatened that they might lose their job as well. Sometimes the employee gets so traumatized that she even starts to become dysfunctional mentally and physically which consequently leads her to perform improperly in the workplace. But some fighters do exist in our society. Some females do fight back. After facing numerous sexual harassment the fear of society’s judgment gets diminished, instead, these acts install aggression and courage to fight back and teach the accused a lesson. After so much tolerance one feels like there is nothing to lose anymore and in reality, this attitude makes women bold and strong, unfortunately.
The Me Too Movement
For a long time, there has been a voice shouting for demanding equality for women, and still facing discrimination in various aspects and different corners of the society. But this is not bound to women only, but to the others as well. Previously, several protests have brewed up in demand of justice for the women who have faced discrimination, harassment, assault and so on. But for some reasons, and mostly lack of conclusive evidence, things have most of the time not worked out. The influence of customs and traditions in India has created an environment, for the girls to become tolerant in most situations for the sake of society, so in such situations, in the cases of sexual harassment, these women are deprived of justice because the society seems to be turning a deaf ear to their situation and the mental sufferring faced by them. Also our law which favors proofs and evidence, is blind towards the plight of these victims as mostly the harassment cases specifically visual and verbal ones are accustomed with insufficiency of materialistic proofs so as to support the circumstances with the codified laws.
The initiative to bring the change
So with time India got updated and took the initiative for taking a stand for self. As modernization was having its impact all over the world, in this scenario, it helped the victims to have their weapons to seek justice. In 2006, an unique step was taken by Tarana Burke with a motive to help help those women and girls who are the victim of sexual assault and are surpressed by the society to raise their voice and seek justice for ownself. Her initiative began digitally through social media, and in return she received a lot of support from individuals.
It happened in 2018, that multiple women disclosed their stories of sexual abuse, harassment, rape, or misconduct. But with time it got disclosed that this injustice is not only happening to women but others too. This included individuals from various fields like journalism, Bollywood, media, politics, etc. This emerged as the #metoo movement. Specifically in India this context emerged due to the brave steps of women to disclose the happening of sexual assault. As in the case which was against the former junior external affairs minister, M.J. Akbar. In another case in which a journalist, Priya Ramani disclosed her story where she was invited by her editor to his hotel room for a job interview and behaved inappropriately. It took two years to get justice, where Delhi court acquitted her for all charges and also accepted the fact that women do face a lot of harassment for filing complaints.
With all these instances, legislation took effective initiatives for justice against sexual harassment. Such instances drove the companies to setting up their Internal Complaint Committees(ICC) and following the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
But still, a sad reality prevails in our environment, where the victims still need to fight a lot to get justice, and in the majority of the cases the justice gets delayed, and this supports the phrase “JUSTICE DELAYED IS JUSTICE DENIED.” This movement holds various instances in different countries as in the case of France, they have an equivalent of the hashtag, #BalanceTonPorc, which translates as ‘rat on your pig’. The hashtag encouraged French women to use social media to name their abusers and inspired hundreds of thousands of posts. For Japan, they use #We Too which encourages unity between victims and supporters. #WeToo was created in the hope of increasing reporting, as well as a feeling of support, solidarity, and validation for victims. Lastly, in the United States, which is the founder of the Me Too, the campaign went viral on social media after Alyssa Milano asked followers on Twitter to share their stories of sexual harassment and assault using the phrase ‘Me too’. In just 24 hours, more than 12 million posts and reactions had included #MeToo. By 24 October 2017, the media were reporting that more than 1.7 million tweets across 85 countries had included #MeToo.
Provisions and laws
The legislation regarding this aspect has taken initiatives such as Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, etc. in simpler words also known as Vishaka Guidelines. But modifications are required favoring men and transgenders as well. The Transgender Bill of 2019 signifying the NALSA guidelines was passed in favor of the laws for transgenders but brought about the loopholes along as well, infringing their rights and leaving them in a void without any laws to protect them and help fight injustice. It was brought into concern that the trans individuals will receive gender certificate signifying ‘transgender’ from the District Magistrate. To this, the transgender people objected for the humiliation that they would have to face in this procedure to obtain the certificate. Also, the punishment for the crimes against trans persons is only six months to two years of imprisonment, where the offences include forced or bonded labour, deniel use of public places, removal of households and village and physical, sexual, verbal, emotional and economic abuse. Here, lies the violation of the dignity of trans people and visible injustice to them in comparison to males and females, because it is clear in this act only that the tenure of the punishment is so less.
A survey (Indian National Bar Association) was carried out at BPOs, IT sector offices, and at various educational institutes, hospitals, and legal firms. 6,047 people participated in the survey – 78% were females and the remaining males. It was found that 38% of women had faced Sexual Harassment at the workplace. Of these, 68.9% said they refrained from making a complaint due to fear, embarrassment, and lack of confidence. When questioned about legal protection, 42.2% said they did not feel protected at work. To this, The term “workplace” in the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 includes any department, organization, undertaking, owned, controlled, or managed by the government as well as any private sector organization or a private venture, undertaking, enterprise, and institution.
The Act covers any/every place visited by the employee during employment including transportation. Even non-traditional workplaces which involve telecommuting and virtual spaces are covered under the law. This Act is for any woman who is harassed in any workplace. The woman doesn’t need to be working at the workplace in which she is harassed. A workplace can be any office, whether government or private. The law provides that every employer with more than 10 employees must constitute an Internal Committee (IC) within the organization to handle complaints of Sexual Harassment.
Sec 503 IPC
If a woman’s clear refusal to someone’s sexual advances is met by threats to harm her, physically or her reputation and property it is a crime under this Section, and the accused can face imprisonment for 2 years along with a fine.
In case one may encounter an act of sexual harassment, one has the right to file an FIR to the local police station, and the officer in charge is bound to act in favor of taking the report. Section 154 of The Code of Criminal Procedure states that the information given to police officers and reduced to writing as required is known as the first information report.
Sec 499 IPC
Morphing pictures of women and sharing them with an intent to harass and defame her is considered as a crime where the punishment includes two years of imprisonment along with a fine. The Section states ‘Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.’
Sec 67 IT Act
Posting or publishing or transmitting any obscene or defamatory material on a public virtual platform intending to harass women is a crime under this section and the punishment for this is two years of imprisonment along with a fine. In other words in a broader sense the section states that if any individual tries to reveal an overt sexual interest for the other person, through the electronic medium, which could derogate the image of the victim. This offender will be punished with imprisonment of three years and fine which may extend to five lakh in the case of first conviction, and imprisonment of five years and fine of ten lakh for the second or subsequent conviction.
Not only in the form of laws, but changes are also needed in the mentality of the individuals living in the society. Here is an existing perspective, that our present generation or in better words the generation of Millennials and Gen Z, build up their perceptions from the ideologies of the elder people, but in a modified manner, corresponding to the time. Here lies the generation gap and the level of understanding which often leads to the misunderstanding among individuals.
Our youngsters with warm blood in their veins, are enthusiastic to opt new initiatives, to reach at a level of a new innovation, but sometimes they get stuck where their approaches are not accepted by the elder people or their boss, or the authority etc. Because on the other hand, the elder people already do possess a mature mind entangled with fears of customs and some imaginary situation which used to occur earlier and have become impossible at present. So here lies a window for these individuals to get feeded with new stuff with a new approach of understanding, which will consequently degrade the gap that is existing among the generations. If society starts to provide knowledge to the present generation concerning this aspect a proper understanding will be generated in the minds of the individuals who would construct the future.
Also by contending for the helpless without being judgemental but with empathy to the ones who are unaware of the measures, will increase the will power of the innocent to fight for oneself, adding up to this, it will teach lessons to the shameless predators who thinks that it’s their prerogative to subdue those people whom they consider vulnerable, that the society is not blind and dumb for their acts, cosequently they will also face severe out-come, which may lead to changing their mindset and make them behave live a civilized being. Along with the proper implementation of laws, there are maximum possibilities for justice to reach every corner of the world. So it is high time to fight back and not to stick to the stigma of this patriarchal society. Equality shall prevail in every corner of society. Whether it be men or women or trans persons, everyone should be treated with dignity and respect. The first initiative to this for the tender age will be sex education not only in school and institutions, but also the older generation should cooperate in this to make safe environment and to spread knowledge about this aspect that this do exist and if we do not raise our voice it will dominate us and even after that, organizations should hold seminars to feed the members of the workplace regarding this context and the consequences in case of violation of rules and regulations. Also, the helpline numbers like 0808 802 1414 mail – firstname.lastname@example.org should be distributed to every individual along with the knowledge regarding how to operate these helplines. The government should take this matter seriously and make sure that the organizations which are made for the protection of citizens must work effectively and efficiently.
- Devika Agarwal, Vijay Nair sexual harassment case: Rising incidents against men emphasize the need for gender-neutral laws in India, Firstpost. ( 03 March 2021, 15:31), https://www.firstpost.com/india/vijay-nair-sexual-harassment-case-rising-incidents-against-men-emphasise-need-for-gender-neutral-laws-in-india-3452286.html
- Anshularbaz, Sexual Harassment at Workplace, Legal Services India (03 March 2021, 6:36), http://www.legalservicesindia.com/article/716/Sexual-Harassment-at-Workplace.html
- Ayush Verma, India’s silence on Sexual Assault of Men and Boys, Ipleaders (03 March,16:57), https://blog.ipleaders.in/indias-silence-sexual-assault-men-boys/
- Vishaka & Ors vs State Of Rajasthan & Ors on 13 August 1997
- Responding to transgender victims of sexual assaults, Office for Victims of Crime( 03 March 2021, 23:11), https://ovc.ojp.gov/sites/g/files/xyckuh226/files/pubs/forge/sexual_numbers.html
- Sexual Harassment, Hr Library(03 March 2021, 01:23), http://hrlibrary.umn.edu/svaw/harassment/explore/4effects.htm
- Karan Arora, Sexual Harassment At Work: Understand The Rules Of The PoSH Act In 6 Minutes, Ungender (13March 2021, 02:58), https://www.ungender.in/sexual-harassment-at-work-understand-the-rules-of-the-posh-act-in-6-minutes/
- Intersectional Feminism, FeminismIndia(13 March 2021, 03:05), https://feminisminindia.com/2020/02/03/india-metoo-movement-2020/
- Sexual Harassment Of Women At Workplace – Rules, Penalties & Compliance, (13 March 2021, 04:28), https://rainmaker.co.in/posh-law/
- Sukanya Banerjee, 20 Laws against Sexual Harassment Most Indian’s don’t know about, Scoopwoop, (13 March 2021, 04:57), https://www.scoopwhoop.com/inothernews/sexual-harassment-laws
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: