Laws related to
sexual harassment of women
In this piece, my endeavour is to
summarize the law (Both – substantive and procedural) pertaining to this issue.
1. Substantive Law
The substantive law i.e. what will
constitute an offence against the body of a woman may be divided into 4 main
categories depending upon the place where it is committed – a public place, a
workplace, a shared household (including home) and other places. The law can
further be classified based upon the age of victim i.e. if it is below 12,
between 12-16 or between 16 to 18 or above 18 years of age. Now, there are 6
main legislative enactments which deal with the issue – Indian Penal Code 1860
(IPC), Protection of women from Domestic Violence Act 2005 (DV Act), Protection
of Children from Sexual Offences Act, 2012 (POCSO), Sexual Harassment of Women
at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (Workplace Act),
Information Technology Act, 2000 and the Indecent Representation of Women
(Prohibition) Act, 1987.
If an act of sexual harassment (which
ranges from a sexually coloured remark to a non-consensual or fraudulently
obtained consensual sexual intercourse) is committed against a victim at a workplace
and she is above 18 years of age, she gets the remedy available under the IPC
and the Workplace Act. If she is married and the same is committed against her
at her home, she is aggrieved under IPC and the DV Act. If he/she is a child
(below 18 years of age), IPC along with POCSO is attracted. IPC is therefore
applicable irrespective of the place of occurrence.
IPC Section 375 defines Rape as- A
man is said to commit ‘Rape” if he-
A-
Penetrates
(to any extent ) his penis, into the vagina (which term shall include the labia
majora), the anus or urethra or mouth of any woman or child–
B-
Inserts
to any extent, any object or a part of the body (other than the penis) into the
vagina(which term shall include the labia majora) or anus or urethra of a woman
C-
the
introduction to any extent by a person of an object or a part of the body
(other than the penis) into the vagina(which term shall include the labia
majora) or anus or urethra of a child. (d) manipulating any part of the body of
a child so as to cause penetration of the vagina (which term shall include
labia majora) anus or the urethra of the offender by any part of the child's
body;
In circumstances
falling under any of the following
descriptions:
Firstly – Against the
complainant's will.
Secondly – Without the
complainant's consent.
Thirdly – With the
complainant's consent when such consent has been obtained by putting her or any
person in whom the complainant is interested, in fear of death or hurt.
Fourthly – With the
consent of the complainant, when, at the time of giving such consent, by reason
of unsoundness of mind or intoxication or the administration by the offender
personally or through another of any stupefying or unwholesome substance, the
complainant is unable to understand the nature and consequences of that to
which such complainant gives consent.
Fifthly – With or
without the complainant's consent, when such complainant is under eighteen
years of age. Provided that consent shall be a valid defence if the complainant
is between sixteen years and eighteen years of age and the accused Person is
not more than five years older.
Apart from the above, section 326A,
326B (Acid attack) and 323 (assault) may also be seen as per the case.
Indecent Representation
of Women (Prohibition) Act, 1987
“Indecent representation of women”
means the depiction in any manner of the figure of a woman, her form or body or
any part thereof in such a way as to have the effect of being indecent, or
derogatory to, or denigrating, women, or is likely to deprave, corrupt or
injure the public morality or morals. If an individual harasses another with
books, photographs, paintings, films, pamphlets, packages, etc. containing the
“indecent representation of women”, they are liable for a minimum sentence of 2
years. Section 7 (Offenses by Companies) further holds companies where there
has been “indecent representation of women” (such as the display of
pornography) on the premises, guilty of offenses under this act, with a minimum
sentence of 2 years.
2. Procedural Law
The chief procedural law dealing with
substantive law is the Code of Criminal Procedure, 1973. Let us go step by step
as to how things are set in motion.
1. All sexual offences
under IPC are cognizable and non bailable except sections 354A, (Cognizable and
bailable- Sexual harassment of the nature of unwelcome physical contact and
advances or a demand or request for sexual favours, showing pornography) 376B(sexual
intercourse by husband upon his wife during separation) and 509 (Word, gesture
or act intended to insult the modesty of a woman.)
2. The first step is
to lodge an FIR at the nearest Police Station. Registration of FIR by police
officer is mandatory in cases of cognizable offences. A prompt FIR always helps.
When received in written form, signature of informant is must. U/s 19 of the
POCSO reporting of apprehension of crime is mandatory.
3. A survivor can
lodge a ‘Zero FIR’ irrespective of the jurisdiction in any police station and
the information will be sent by such police station to the police station with
jurisdiction to investigate. Police cannot refuse to register FIR in cases of
cognizable offences.
4. For offences
against a woman u/ 326A, 326B, 354, 375, 376 – 376E and 509, woman police
officer has to record the information. Or child complainants and differently
abled complainants, the procedure is separate.
5. If the police
officer approached refuses to register FIR, the complainant can speak to the
Station House Officer (SHO). Not registering FIR in the sections mentioned
above is a crime as per Section 166A(c) IPC. If even that does not help, she
can approach the Superintendent of Police (SP) of the area.
6. If even SP does not
help her, she can file a complaint to the jurisdictional magistrate u/s 156(3)
CrPC.
7. The survivor can
also assume the role of prosecution and lodge a private complaint u/s 200 CrPC
before the magistrate.
8. The magistrate u/s
156(3) can direct for registration of FIR and investigation.
9. Section 173(1A)
mandates that investigation in relation to rape of a child may be completed
within 3 months of recording FIR.
10.Police may arrest
the suspected accused but has to produce him before the magistrate within 24 hours and
can seek police custody u/s 167(2). If the police feels that the evidence is
not enough to constitute the offence alleged against the accused, it can close
the case u/s 169 CrPC and release the accused. Police custody is maximum for 15
days after which the police has to seek judicial custody.
11.Medical examination
of a rape survivor can only be done with her express consent as pr Section 164A
(7) CrPC. The examination is to be carried out within 24 hours of receiving
information by a registered medical practitioner. As per Section 41 POCSO
exempts medical examination of a child as an offence if it is undertaken with
the consent of child’s parents or guardians.
12.As per Section 357C
CrPC, all hospitals public or private have to provide free first aid or
treatment to survivors of offences us 326A and 376 – 376E and inform the
police immediately.
13.Section 53 CrPC
provides for medical examination of the accused. Section 53A provides for
medical examination of a rape accused. Reasonable force can be used for
carrying out medical examination u/s 53A. After conclusion, the medical
practitioner shall forward a report to the Investigating Officer.
14.Throughout the
investigation process, the police has to maintain a Case Diary (CD) as mandated
by Section 172 CrPC and must note all progress of investigation in it.
During trial there are certain
presumptions beneficial to the survivor. There is a presumption as to absence
of consent in a prosecution of rape. [Section 114A Evidence Act, 1872] Her
previous sexual experience is not relevant to decide on consent. [Section 53A
Evidence Act, 1872]. The general immoral character of her with any person
cannot be proved either through cross-examination or leading evidence in
rebuttal [Section 146 proviso Evidence Act, 1872]
It must be borne in mind that delay
in lodging complaint/FIR is not fatal to the prosecutrix’s case. Delay may be
explained. One must however not hesitate in reporting the crime. Do remember,
one who does it to one, will do it to another.