This article is written by Ninisha Agarwal of Rajiv Gandhi National University of Law.
According to National Crime records Bureau, rape accounts for 12% of all crimes against women. Average rate of rape case is about 6.3 per 100,000 of the population. According to a live report of Livemint, 99% of cases of sexual violence go unreported. Even after the rape case of Nirbhaya, the rate of rapes saw a humongous jump of 26% in 2013, mainly in northern part of India like Delhi, Rajasthan, and UP. Not only rapes, but other forms of sexual violence also saw a massive jump of 26% in 2016.
But the question is how many convictions have been carried out in the light of reports being filed? The conviction rate for all crimes against women stands at mere 19%. In Northern Eastern states except Assam, the range varies between 25% – 70%. On the other hand, states like West Bengal, Gujarat, and Karnataka have rates of less than 5%. In 2016, the rate was 26%.
What constitutes Sexual Harassment?
Harassment in a workplace, professional or social situation, involving the making of unwanted sexual advances, favours or obscene remarks is considered as sexual harassment. According to Vishaka Guidelines laid down by the Supreme Court of India, sexual harassment includes any unwanted sexual behaviour whether directly or impliedly.
- Physical contact and initiatives.
- Sexual demands and favours.
- Showing pornography forcibly.
- Sexual remarks.
- Unusual and sexual behaviour.
What does not constitute sexual harassment?
All offensive behaviour does not always amount to sexual harassment. That particular act must be obscene and unjustified. It should contain sexual element.
What is #Me Too Movement?
It is a movement against sexual harassment and assault. It started getting viral in October 2017 as a hashtag used on social media to express discontent and hatred against sexual assaults especially in workplace. It was followed on a large extent after allegations on Harvey Weinstein regarding sexual misconduct. Tarana Burke used this term for the first time, which was further popularized by Alyssa Milano.
#Me Too Movement in India
It gained momentum in India in 2018 in entertainment Industry of Bollywood, when Tanushree Dutta accused Nana Patekar of sexual violence. But there is one obstacle that defamation laws in India allow the criminal prosecution of women who are not able to prove allegations against accused with two years jail term, unlike US in which first amendment protects freedom of speech.
Background of Vishakha Guidelines
In the 1990s, Bhanwari Lal Devi, who was a Rajasthan state government employee, tried to stop child marriages as part of her job. The landlords of the community got enraged by this act of hers and raped her repeatedly. Unfortunately, the Rajasthan High Court failed to impart Justice and this caused spark amongst women who them filed PIL. In 1997, in a landmark judgement, guidelines were established to deal with the complaints of sexual harassments.
First Information Report (FIR)
It is basically a complaint document and first step towards the criminal process. If you have face sexual harassment, then your first step should be filing a FIR in a local police station. Your statement should be recorded in a language which you can understand. If it is not possible, then ask the officer to translate it to you. You should emphasize upon each and every detail which is being mentioned in the statement.
Sexual harassment laws in India
Sexual Harassment of women at workplace Act (Prevention, Prohibition and Redressal) Act 2013
Around 1,971 cases of sexual harassment at workplace were registered in 4 years till December 12, 2017. Cases reported increased by 45% from 371 in 2014 to 539 in 2017, till 12 December 2017. UP reported the most number of cases. As many as 70% of women abstained from reporting due to social stigma, according to Indian Bar Association in 2017. The government also set up online management system – Sexual Harassment Electronic Box known as SHe-box for registration of sexual assaults.
If the harassment has occurred at a women’s workplace, during the course of her employment, at her educational institute or at hospital where she is admitted, then she can get relief under this Act.
- It protects all women irrespective of age, employment status, whether in organized or unorganized sectors, public or private. It covers domestic workers and customers also.
- Internal complaints committee is mandatory to be set up in each office with 10 or more employees to investigate regarding complaints of assaults.
- If that committee is not been set up, then penalty of Rs.50,000 shall be levied upon the business, with cancellation of license if violence is repeated. (Section 26)
- The case can be filed before committee by survivor, relative, friend or any other person who has the knowledge of the incident with the written permission of the victim.
- The complaint should consist of location, timings, dates and name of accused, if known. This information is essential pertaining to the complaint.
- The inquiry by committee should be completed within 90 days and then a report has to be made in 60 days. This deadline shall have to be strictly adhered to.
5 things to know about sexual harassment at workplace laws
- Women are covered under this Act if you are an employee whether part time, full time or intern. It even protects those women who are visiting on a regular, ad hoc or daily wage basis. As per section 2(a) (i), an aggrieved woman means a woman whether employed or not, who alleges to have been subjugated by sexual harassment.
- Inappropriate behaviour should be recognized as soon as possible and it should not be tolerated.
- A complaint can be filed within three months from the date of offence. If you are no able to lodge a complaint due to some problems, then local committee or ICC can extend the time limit, in writing.
- In case, the aggrieved woman is not able to file complaint due to mental or physical injury, then her legal heir or any such person can lodge on her behalf.
- A request can be made for leave or transfer to a different branch, in accordance with Section 12 of the Act.
- The Internal committee can deduct the salary of the accused if offence is proved.
Some of the accused individuals on #Me Too Platform are mentioned in this link.
Formation of Internal Complaint Committee
Internal complaint committee should consist of the following members which are nominated by employer.
- A presiding woman officer employed at a senior level at the workplace from amongst the employees.
- There should be no less than two members who are committed to the cause of women and who are experienced in social work with knowledge of legal field.
- One member should be from a non-governmental organisation or association committed to the cause of women or a person familiar with the sexual harassment.
- The committee should have at least half of the women members at all times. The presiding officer and the members of the committee cannot hold office for more than three years from the date of nomination.
Powers of Internal Complaint Committee
It will have the same powers as Civil Court under the Code of Civil Procedure, 1908 when trying a suit.
- Summoning and enforcing the person’s attendance and examining his oath.
- Requiring the discovery and production of documents.
- Other matters may be prescribed.
The committee can suggest employers certain changes according to the requirement.
- Relief for aggrieved women.
- Grant leave to the women for three months.
- Transfer of women to other branch.
The indecent representation of Women (Prohibition) Act, 1987
- If an individual harasses another with books, photographs, paintings, films, pamphlets, packages, etc. Containing ‘indecent representation of women’; they are liable for a minimum sentence of two years.
Criminal Law Amendment Act, 2013
- It is also known as Nirbhaya Act which is an Indian legislation passed by the Lok Sabha on 19 March, 2013 and by Rajya Sabha on 21 March, 2013. It provides amendment of Indian Penal Code, Indian Evidence Act and Code of Criminal Procedure, 1973 on laws related to sexual offences.
- It was originally an ordinance which was promulgated by the President of India, Pranab Mukherjee on 3 April 2013, in light of the protests in the 2012 Delhi rape case.
This Act has expressly recognized certain acts as offences which are dealt under IPC sections like sexual harassment, acid attack, voyeurism, and stalking.
Laws under the Indian Penal Code (IPC)
- IPC Section 294
It includes obscene acts in any public place, singing obscene songs to the annoyance of others Punishment will be imprisonment for a term of up to 3 months or fine, or both.
- IPC Section 354(A)
Demanding sexual favours, showing pornography, physical contact despite indication of disinterest is a crime and accused can be subjected to either jail, ranging from 1 – 3 years or fine or both.
- IPC Section 354 (B)
It deals with forcing a woman to undress and punishment of jail ranges from 3 – 7 years in prison and a fine.
- IPC Section 354 (C)
Watching, capturing or sharing images of a women engaging in a private act without her consent is voyeurism and punishable under this section. The man can face jail ranging from 1- 3 years. But if that man is convicted for the second time, then he will face jail between 3 – 7 years along with fine.
- IPC Section 354 (D)
Following someone with or without their knowledge is known as stalking and considered as an act of sexual harassment. The punishment will be jail term ranging from 3 – 5 years coupled with fine.
- IPC Section 375
It includes Acts like penetration of penis in to the vagina, urethra, anus or mouth, or any object into any body part, to apply mouth or touching private parts. Penetration means ‘penetration to any extent’. The punishment will be imprisonment which will not be less than 7 years and it can also be extended to life time. In aggravated situations, punishment may be rigorous, not less than a jail of 10 years, and maybe imprisonment for life.
- IPC Section 376A
If a person committing the offence of sexual assault inflicts an injury which causes the death of the person or persistent vegetative state, then he shall be punished with rigorous imprisonment for a term which shall not be less than 20 years, and it shall be extended to life imprisonment.
In Gang rapes, persons involved will be punished with rigorous imprisonment of 20 years and not less than that. They shall also have to pay compensation to the victim. The age of consent is 18 years which means any rape below 18 years will be a statutory rape.
- IPC Section 499
Morphing Pictures of lady and sharing them with an intention to harass and defame them is punishable by implying jail up to 2 years or fine or both.
- IPC Section 503
If a woman refuses to someone’s sexual favours and is met by threats for physical or reputational harm, shall be punished with imprisonment for 2 years or fine, or both.
- IPC Section 13 509
Insulting the modesty of a woman by making sexually coloured remarks about her in a public space which intrudes her privacy is punishable by jail of 3 years and fine.
- IPC Section 67 of IT Act
Posting any obscene or defamatory material on a public online platform with an intention to harm the reputation or harass that woman is punishable with jail time of 2 years with a fine.