In this article, Priya Venkatesan of Tamil Nadu National Law School discusses can sexting a co-worker lead to sexual harassment charges.
What is sexual harassment?
With the advent of newer technologies, internet and various social media platforms, sending a text message to someone is just a touch away. Various texting platforms provide a very convenient user interface and it makes texting easier. Something as useful and important as internet, brings many dangers too. In the era of getting to know people and finding love over the internet, sexual abuse over it has increased multi folds. Internet provides for a platform where one can be a virtual person and reveal his monsters without revealing his identity. With online dating being a very common phenomenon, sexting, becomes all the more common. Sexting is sending or receiving of sexually explicit or suggestive images, messages, or video via cellphones or the internet. Sexting without one’s consent, can be one way to sexually harass a person over internet. That is where laws for sexual harassment over internet is required.
Sexual harassment essentially is making unwanted sexual advancements towards a person. Sexual harassment has been prevalent for ages now. Even in Mahabharata, Draupadi was sexually harassed at the hands of Kauravas. Though sexual harassment has been prevalent for ages, the ways to harass a person has been changing ever since. Internet has become a convenient tool for those who want to harass a person. Sexual harassment is defined under Section 2 (n) Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 as:
“sexual harassment ” includes anyone or more of the following unwelcome acts or behaviour (whether directly or by implication) namely :-
physical contact and advances; or
a demand or request for sexual favours; or
making sexually coloured remarks; or
showing pornography; or
any other unwelcome physical, verbal or nonverbal conduct of sexual nature.
With more number of women going to work, more harassment cases over workplaces are seen. To keep this in check Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 was enacted.
Charges under which one can be prosecuted.
There were different ways in which a co-worker sexually harassed another co-worker. The increment in sexual harassment at workplace demanded a law at place. The laws which can be applied to people who engage in sexual harassment via text messages would be
- Section 354A Indian Penal Code (IPC)
- Section 67A Information Technology Act 2000
- Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
Under the IT Act, Section 67A specifically deals with transmission of material containing sexually explicit act. This section can be applied in cases where sexting takes place.
Sexting: Is it freedom of speech?
Article 19 (1) (a) provides for freedom of speech and expression so would it mean when I sext a co worker, I am exercising this right?
No. Freedom of speech and expression comes with a reasonable restriction provided by Article 19 (2) which curbs such freedom in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. Morality differs from person to person, but somethings can be universally considered immoral. Court in Ranjit Udeshi State of Maharashtra, considered Hicklin’s test to check decency and morality. The test says that to check whether the tendency of the matter charged as obscene is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall. In fact in “Director General, Directorate General of Doordarshan v. Anand Patwardhan, 2006 (8) SCC 433, this Court noticed the law in the United States and said that a material may be regarded as obscene if the average person applying contemporary community standards would find that the subject matter taken as a whole appeals to the prurient interest and that taken as a whole it otherwise lacks serious literary artistic, political, educational or scientific value.”
Sexting therefore can clearly be considered immoral. Sexting would not be protected by Article 19 (1) (a).
Who can prosecute?
Sexting a co-worker without consent of one of the parties.
The problem arises when one co worker starts sexting the other co worker when the other co worker has not consented. If one worker starts bothering other co-worker by sexting, it would amount to making sexual advances to that person. Aggrieved women may face such harassment in connection to the work she does i.e. she may be threatened about her progress in her career. She may also be forced into sexting or she may just receive lewd pictures or videos without her consent. All of this would not only amount to a crime under Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, but would also amount to a crime under the IT Act. Section 67A of the IT Act is as follows:
67 A Punishment for publishing or transmitting of material containing sexually explicit act,etc. in electronic form (Inserted vide ITAA 2008)
Whoever published or transmits or causes to be published or transmitted in the electronic form any material which contains sexually explicit act or conduct shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to ten lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees.
Exception: This section and section 67 does not extend to any book, pamphlet, paper, writing, drawing, painting, representation or figure in electronic form-
(i) the publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper, writing, drawing, painting, representation or figure is in the interest of science,literature, art,or learning or other objects of general concern; or
(ii) which is kept or used bona fide for religious purposes.
Laws specifically dealing with sexual harassment by the way of sexting is yet to develop in India. The need for such a law has arisen only lately. This does not mean one can get no protection from such an act. A person may not have direct remedies, but nevertheless, it is ensured that some remedies are present in such a matter. Therefore, although there is no law per se protecting a person from unwanted sexting, if anyone is bothered by such an act, they can get remedy under the said sections of the said law. One may be booked for sexual harassment if one pursues to sext another person at his workplace.
Third party intervention
An aggrieved women so defined under Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (also called SHWA) may file a complaint for sexual harassment as defined under SHWA if she receives sexting without her consent. In her absence, due to incapacity (mental/physical) her legal heir may file a complaint under the same Act.
Exception: Sexting a co-worker with consent of both parties
Sexting a co-worker when both the parties consent though can be brought under the purview of Section 67 of IT Act, it may still not be punishable. This would be because one’s right to privacy cannot be breached and unless one complains, it would not amount to sexual harassment. Consensual acts are not prohibited by the laws Nevertheless, one needs to be careful. Two workers may engage into a romantic relationship and it will not amount to sexual harassment till both the parties consent to it. Though it is a very risky affair, charging one with sexual harassment case becomes difficult if it is with the consent of both the parties. The risk here would be one of the parties blackmailing the other of leaking the pictures or making the pictures viral over social media. This then would constitute a crime.
Conclusion
It can be concluded that sexting a person (coworker) can make you liable for sexual harassment if the other person does not consent to it. The laws are in place to check no such crime is committed. One must be careful in what they are engaging into in the internet. Knowing the laws and being on the legal side is always preferable so that no such charge is levied against you. To save yourself the trouble, you can take up a course designed by National University of Juridical Sciences or take up a course about all that you should know about sexual harassment laws.
The Internet can be a scary place. It should be used very carefully and one may avoid engaging in such acts.
