Sexual harassment

(BY- Saumya Bajaj and Kavya Bajaj)

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  1. ABSTRACT

The report addresses the issue of how sexual harassment is an evil that needs to be understood and taken into account from the very beginning and the root of its cause. Covering every corner, from a lewd stare to aggressive rape incidents, the situations of sexual harassment and how such harassment is faced is discussed, the current legal status of such wrongs and the consequences have also been addressed thereof. The analysis includes the controversial question of whether a gender-neutral treatment law is required or not. Apart from this, the consequences faced by a victim are also enumerated as it causes a major change in one’s opinion and lifestyle.

INTRODUCTION

“You can tell the condition of a nation by looking at the status of its women[1].”

– Pt. Jawaharlal Nehru

Indian women have undergone innumerable changes in concern to role and status, from equal status in the early Vedic period to subordination in the later Vedic period to struggling for equal rights, respect, and recognition in today’s world. But the one persistent thing is exploitation faced by women in one or another way throughout these phases. Violence against women has been the most common among them. They often perceive violence as physical stress, which in wider terms has more to it. Those aspects are verbal, non-verbal, physical, and emotional torture. In modern times of positive enforcement and regulatory objectives of the law, almost every woman has faced a certain abuse in their lives. As we already give the means and types of violence faced by women above, the question remains that how is this causing harassment. To take a literal point of view in this direction, Black’s Law Dictionary states ‘harassment’ as “A course of conduct directed at a specific person that causes substantial emotional distress in such person and serves no legitimate purpose[2]” or “Words, gestures, and actions which tend to annoy, alarm and abuse (verbally) another person.” The conclusive relation between both is very common and dependant as seen, usage of common means is either physical, mental, non-verbal or verbal, or inclusive of many, which implies similarity between the two terms. The main idea of this gender-based discrimination and attack is derived from the patriarchal dominance in society. It involves women’s views and their behaviour, and the social norms of the society which emerging from age-old gender discriminatory attitudes and is a complex relationship of gender, power and sexuality. One form of such harassment is sexual harassment faced by women in various fields of life. This may be eve-teasing, stalking, non-consensual pornographic presentation, molestation, rape, catcalling, lewd staring, inappropriate comments, etc. these are some forms of harassment a woman can face in a public place, educational institutions, workplace or even in a private setting. As our country is developing and women are also entering various fields and contributing to developing the country, offences and misconduct against women are also increasing day by day. The report confers the evils of sexual harassment and its presence in various fields, forms and times, its causes, consequences and the legal framework at national and international levels to deal with the same and how needful are gender-neutral laws in India, its analysis and concluding comments to curb this situation.

DISCUSSION

CAUSES OF SEXUAL HARASSMENT

  1. Patriarchal system of the society-  the male members are considered to be superior to females. The role of men and women in society is seen as dominating and of a subordinating one. women are considered the weaker section for ages. 
  1. Blaming of indecent clothing- it is assumed that the victim’s clothing has brought them to that state. Whereas, it is the mindset of people that needs to be addressed and changed.
  2. No public safety- Women who drink, smoke or go late-night clubbing are seen as immoral in most of the Indian society and are the reason for being harassed. The conditioning of most of society is against western beliefs for which a woman has to pay the cost.
  3. Discouragement of rape victims to compromise-  the reputation of families are kept above and they are not ready to accept the fact that someone in their family has been raped. they often advise the victims to stay away from the chaos caused after the rape and other harassment in the police station.

SEXUAL HARASSMENT ON THE BASIS OF PLACES  

SEXUAL HARASSMENT AT WORKPLACES

Women often face sexual harassment while at their workplaces, as they are expected to grant sexual favours in return for their survival in the organisation, for promotion or an increment. These favours are usually asked for by the person in official dominance or authority. Such an incident came to notice of the Indian supreme court in Vishaka & Ors vs State of Rajasthan & Ors[3]. A PIL to enforce the FRs of working women under the golden triangle (Art. 14, 19 & 21) of the Constitution of India. legally binding guidelines were given by the SC in this case. The guidelines included the duty of an employer to create an environment and rules which prevent such actions, and, if any, they must create a plan and procedure to deal with it; a definition of Sexual harassment was given appropriately; to provide appropriate work conditions should be provided to work, leisure, health and hygiene; treatment of such complaints on time; a complaints committee shall be constituted, headed by a woman and not less than half of its members should be women, the involvement of a third party, an eligible and tracked increase in awareness of the rights of female workers should be created respectively. The organized and unorganized sectors come under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. As per POSH, ‘workplace’ includes any place visited by the employee arising out of or during employment, including transportation provided by the employer to commute to and from the place of employment. a grievance redressal forum is set up under the POSH. The POSH Act prescribes various punishments that may be imposed by an employer, such as written apology, warning, reprimand, censure, withholding of promotion, withholding of pay rise or increments, termination of the respondent’s employment or service, undergoing a mandatory counselling session, or carrying out community service by deploying restorative techniques.

Constitutional Safeguards- Every citizen has the right “to practice any profession or to carry on any occupation, trade or business” under Article 19(1) (g)[4]. Sexual harassment of a woman at the place of work exposes her to a big risk and hazard which affects her constitutionally guaranteed right under Article 19(1) (g). Sexual harassment of women at the workplace is a violation of the right to life and personal liberty as mentioned in Article 21, the Right to livelihood is also an aspect of the right to life. sexual harassment violates their sense of dignity, it is absolutely against their fundamental rights and their basic human rights.

SEXUAL HARASSMENT AT PUBLIC PLACES

A large number of Indian women face harassment in public places, even young girls. It has become so recurrent, be it malls, buses, restaurants, bus stops, railway station and every other crowded place. Eve teasing is a menace to society as a whole and an appalling act that causes a victim both psychological and physical distress, it could be done by anyone and in any form, whether by touching or brushing against a woman, giving a lewd stare or by making undesired comments, staking her, making cheap gestures, a sly whistle, a well-timed clap, the humming of a seductive song and there could be other never-ending ways.  However, India does not have separate central legislation to deal with it. But, Tamil Nadu has taken a step forward and made a separate statute for the prohibition of harassment of women in 1998 at the state level. In the case of Deputy General Inspector of Police & Anr vs. Samuthiramv[5] in which a police inspector eve-teased a married woman near the bus stop, which led to ending his dismissal from service. After that government made certain guidelines to curb the issue of eve-teasing efficiently and properly such as the installation of CCTV cameras in public places, making women helpline available 24*7, imposing security at crowded places and other various steps by directing the State Governments and Union Territories of India. Sexual harassment was defined as an exemplary act of violence against women, necessary for gaining an upper hand and supporting patriarchy. It was held that violence against women is a political act of oppression rather than an outcome of perverse sexuality by a few men[6]. Sexual harassment was posed as a normal phenomenon rather than pathological to patriarchal cultures and the state critiqued for normalizing sexual harassment. There have been numerous campaigns and legal interventions against sexual harassment, most recommending reform of the law. Several women’s groups have proposed to repeal sections 354 and 509 of the IPC, and the offences incorporated in a comprehensive bill on sexual assault. Eve-teasing, which is usually treated as a very common crime while it is a very serious issue that leads to immense mental suffering and humiliation to the women when they get harassed publicly. It is a direct infringement of a woman’s right to life with dignity and violates a women’s basic right to live under article 21 of the Indian constitution. The same is reflected in the newspaper reports almost every day where innumerable incidents are reported as such.

SEXUAL HARASSMENT AT EDUCATIONAL INSTITUTIONS

Based on the place, a major issue is taken into account as how girls and women are treated badly in an educational institution where they specifically go to learn and make full of their potential. It becomes highly degrading for society when they face such offensive behaviour by people in authority. The unprofessional conduct damages the integrity of the employment relationship & a violation of professional ethics. Some examples are: Male Teacher asking a Female student, if she wants an “A” grade, you need to take your final exam at my home, Male HOD deliberately touching or hitting the body of a female employee by file or pen/pencil. • Male Teacher’s referring to female bodies and reproductive cycles to embarrass female students during class lectures, Needy female students were given financial support by Faculty member in exchange for sexual favour, Students sending in written notes, letters, emails with requests for intimacy- in exchange for grades, Character assassination of female teachers to gain political, academic, or financial gains, etc. Special policies should be drafted defining what constitutes sexual harassment, to what degree such behaviour is prohibited, what steps to take if harassment takes place and methods for prevention. Under the recommendations of the Raghavan Committee, all schools shall have a sexual harassment committee. All schools must have a complaint/grievance box in place and students shall be encouraged to submit such complaints and issues that need to be adressed. Schools should also organize awareness programmes for both students and parents to bring up such issue in open. Constant counselling for students so that they do not hesitate in bringing up such issues with the seniors. Hence, there is a need to educate the parents as well so that students do not hesitate in discussing the issue with them. According to National Crime Records Bureau, a total of 66,40,378 cognizable crimes comprising 26,47,722 Indian Penal Code (IPC) crimes and 39,92,656 Special & Local Laws (SLL) crimes were reported, showing an increase of 9.9% over 2012 (60,41,559 cases). During 2013, the IPC crime rate has increased by 9.6% over 2012 while the SLL crime rate has increased by 7.9% over 2012. The percentage share of SLL was 60.1% while the percentage share of IPC cases was 39.9% reported during 2013, Delhi UT reported the highest crime rate (146.8) as compared to the national average rate of 52.2. A total of 53,464 cases of crime against women were reported from 53 mega cities out of 3,09,546 cases reported in the country during 2013. The rate of crime in these cities at 69.7 was comparatively higher as compared to the national rate at 52.2.

SEXUAL HARASSMENT – FORMS

RAPE

Rape is the act of violating the bodily integrity and honour of a woman. It messes with the physical and mental balance. It creates an emotional crisis and leads to an insecure lifestyle with many fears. It is a crime against basic human rights and a clear violation of the right to life with dignity protected in article 21 of our constitution. In India, the state-wise distribution of total reported rape crimes in 2012 shows the highest in Madhya Pradesh, followed by Uttar Pradesh and West Bengal. The rape rate per 100,000 people is the highest in Mizoram at the rate of 10.4/year, followed by Tripura, Meghalaya, Sikkim, and Assam. Among major cities, Delhi’s rape rate of 4.1/100,000 people was the highest followed by Mumbai. The rape rate per 100,000 people was lowest in Gujarat (0.98), followed by Bihar, Karnataka, Tamil Nadu.

After the Criminal Law (Amendment) Act, 2013, the definition of Rape has been made wider. a range of sexual abuses within the definition of Rape has been acknowledged and have also increased the punishment for the same offence. the acts like penetration, insertion of objects, application of mouth or even the manipulation of a female’s body for penetration has been incorporated into the definition of rape. Stricter punishments are imposed now. Punishments are specifically prescribed for heinous offences like acid attacks, gang rapes, and for the offence of rape where the victim is left in a persistent vegetative state. After the Nirbhaya case resulted in major havoc in the country wherein the entire nation protested and revolted to bring about a change in the existing laws. Conclusively, the Criminal Law (Amendment) Act, 2013 was enforced.

Laws-  Rape has been defined under Section 375[7] of the IPC, which states that rape is said to have been committed when a man has sexual intercourse with a woman:

  1. Against her will;
  2. Without her express consent;
  3. By gaining her consent by force, or threatening to kill or hurt her or someone she cares about;
  4. By making her believe that the man has been lawfully married to her;
  5. By gaining her consent during unsoundness of her mind, when she was intoxicated, or by providing any other substances that might affect her decision-making ability;
  6. With or without her consent if she is under 16 years old, and 14 years old in the case of Manipur. It is also stated that mere penetration is sufficient to constitute sexual intercourse, which is treated as rape.

Section 376[8] provides for various punishments for various situations regarding rape and the condition and cause. Marital rape is an exception in Section 375[9], IPC refers to sexual intercourse with one’s spouse without their consent- “sexual intercourse by a man on his wife even without her consent will not amount to rape”.  Wives are believed to have given consent to sex every time their husband wants, which is not only degrading to women. Thus, the consent is validated only till the sexual intercourse is not in pursuit of marriage, the rights of a woman stay the same and shall be treated equally even after marriage. As far as conjugal rights are concerned, it should be the willingness of both persons for the same.

LEGAL FRAMEWORK

  1. The Indian Law dealing with sexual harassment has been in the Indian Penal Code, 1860. The Code defines Rape, Stalking, Assault, etc. but it does not depict upon the word eve-teasing or molestation. It has defined the offences and the elements which constitute the offence and has also prescribed punishment for the same.
  2. The provisions dealing with the crime of eve-teasing are ss. 509[10], 294[11] and 354[12]. S. 509[13] prescribes the punishment for outraging the modesty of women by uttering any word, making any gestures or doing any act to outrage a woman’s modesty. S. 294[14] prescribes the punishment for committing any obscene acts or uttering or saying obscene songs. S. 354[15] sets the punishment for use of assault or criminal force to a woman to outrage her modesty.
  3. the term Eve-teasing has not been explicitly used in the Code, nor the concept of modesty has been defined as it differs from place to place. the offence of Sexual Abuse or molestation is also addressed under S. 354[16] of the Code.
  4. The provisions of IPC dealing with the offence of Rape have been laid down under ss, 375[17] and 376[18]. The definition of Rape given under Section 375 was ancient and covered a low scope, which has been amended to meet the ends of the current society.
  5. Section 375[19] now defines Rape as the penetration of penis, or any object to any extent into the vagina, urethra, anus or mouth; or manipulation of body parts of women to cause penetration or application of mouth to the private parts of a woman, etc. The new law also includes strict punishments in Section 376[20] for rape, gang rape, as well as acid attacks. It has also made special provisions to specifically prescribe punishments for rape where the suggested offence causes death or leaves the victim in an unrecoverable and vegetative state. It also focuses grave punishments for repeated offenders of the crime of rape.

VOYEURISM

The advancement in technology, leading to an increase in increase in sex crimes in the cyber world. The Criminal Law (Amendment) Act, 2013 introduced S. 354C[21] criminalizing voyeurism. The section forbids acts of a man who watches or captures the images of a woman who is engaging herself in any private activities under those circumstances where she would, in usual cases, expect to be not being observed by the perpetrator or his accomplice. It punishes first time offenders with imprisonment for a term not less than one year, which could extend up to even three years, and makes them liable to pay a fine as deemed fit by the Court. Also, S. 66E[22] of the Information Technology Act is the law against the capture, publishing or transmitting of the image of a private area of any person without his or her consent, under the circumstances where the privacy of that person may be violated.  Most of the times, victims are unaware that their private acts are being watched or captured by someone. And thus, voyeurism is one of the least reported sexual offences committed against women. In several cases where such videos/images are uploaded on the internet, the victims aren’t aware of the fact that their private videos or images are uploaded on the internet. Thus, it causes an infringement to the fundamental right of being in privacy and enjoying life as it becomes a matter of goodwill and survival.

CONSEQUENCES

  1. Mental trauma- a person who has faced sexual harassment of any kind goes into a state of shock and is unable to act normal in the sense of security and regularity. Emotional and psychological imbalance further disturbs the personal life of the victim.
  2. PTSD- post-traumatic stress disorder for a woman goes through shock andtrauma which cannot be easily analysed. The mental torture is deep and themental agony is unbearable which leads to further problems in adjusting to the society
  3. Character assassination- A victim is sociallyostracized and morally degraded with a lifelong stigma on herdignity and character.
  4. Physical effects- the extreme forms of impacts that may be witnessed among the victims may also include long term symptoms like sleeping disorders, eating disorders, sexual dysfunction or loss of self-confidence and developed negative self-image.

GENDER-NEUTRAL APPROACH TOWARDS SEXUAL HARASSMENT

Indian law is still based on the belief that a victim can only be a woman. There is a growing awareness that sexual assault is not only an act of showing dominance or superiority of one caste, class, religion, community over the other and are acts of power and humiliation. If so is the case, then it is unreasonable for the male gender to be omitted from being considered as potential a rape victim in India. Therefore, the existence of male and transgender rape in India cannot be denied. The supporters argue that the right to equality and the social stigma that surrounds male rape is orthodox and requires a new approach. It can be finally concluded that while sexual violence against males and transgender must be spoken about, an equal society must prevail above all and we must move in the direction of achieving gender-neutral laws. However, taking into account the situation and treatment of women in India at present, it would not be wise to drastically change the rape laws into gender-neutral laws but the fear of that the possibility of law being misused creates a complex situation. Here, we must try to balance the rights of all identities, thus, a separate law can be enacted based on data and statistics

CONCLUSION

This report is an analysis of how sexual harassment is an issue at almost every level and in every field of society. The causes include personal opinions and the societal pressures that lead to such acts. Sexual harassment in various places such as the workplace and institutions cause specific hampering to the fundamental rights of a person, as women are entering and contributing to every field of society it becomes vital to maintain organisational standards. Separately molestation, eve-teasing, etc. are some kinds of heinous and regular offences that women start taking for granted and do not act upon it. While offences like rape are given maximum attention due to aggravated degree, the laws have changed over time in each of these aspects and are created to deter society and create enough punishment for the offenders. Another requirement to amend the law is to have gender-neutral law against sexual harassment as it is a common concept and must be acknowledged that such acts can cause consequences for all, and it’s everyone’s right to life that is needed to be respected. Further, the consequences of the offence cause physical, emotional, psychological and mental disturbance to the victim and thus, such evil has to be taken into consideration.


[1]Toppr,  https://www.toppr.com/guides/essays/essay-on-status-of-women-in-india/  (last visited Feb. 27, 2021)

[2](2021), https://www.latestlaws.com/wp-content/uploads/2015/04/Blacks-Law-Dictionery.pdf (last visited Feb 30, 2021).

[3] AIR 1997 SC. 3011

[4] INDIA CONST. art. 19, cl. 1(g).

[5] (2013) 1 SCC 598

[6] Sexual harassment by Pratiksha Baxi, http://www.india-seminar.com/2001/505/505%20pratiksha%20baxi.htm (last visited March 2, 2021).

[7] The Indian Penal Code, 1860, ss. 375, Act No. 45 of 1860, Acts of Parliament, 1860.

[8] The Indian Penal Code, 1860, ss. 376, Act No. 45 of 1860, Acts of Parliament, 1860.

[9] supra note 7

[10] The Indian Penal Code, 1860, ss. 509, Act No. 45 of 1860, Acts of Parliament, 1860

[11] The Indian Penal Code, 1860, ss. 294, Act No. 45 of 1860, Acts of Parliament, 1860

[12] The Indian Penal Code, 1860, ss. 354, Act No. 45 of 1860, Acts of Parliament, 1860

[13] supra note 10.

[14] supra note 11.

[15] supra note 12

[16] Ibid.

[17] supra note 7.

[18] supra note 8

[19] supra note 7.

[20] supra note 8.

[21] The Indian Penal Code, 1860, ss. 354C, Act No. 45 of 1860, Acts of Parliament, 1860

[22] The Information Technology Act, 2000 ss. 66E, Act No. 21 of 2000, Acts of Parliament, 2000.

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