Sexual harassment and the laws in India

Certain rights are inalienable from a human being and are guaranteed by birth. The Protection of Human rights Act, 1993 defines human rights as the rights related to the life, liberty, equality and dignity of the individual which are guaranteed by the Constitution or embodied in various International Covenants which are enforceable in the Courts in India. Right to live with dignity forms a part of human rights and sexual harassment is a breach of the right to live with dignity. Article 15(3) of the Constitution of India states that nothing shall prevent a state from making special provisions for women and children. This empowers the state to create a positive discrimination with regards to women and children for their upliftment.

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The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 was the first legislation enacted to protect the women from being sexually harassed but the legislation was specified in the workplace. The legislation has defined the term sexual harassment under section 2 and gives an inclusive definition stating that sexual harassment includes any one or more of the following unwelcome acts or behaviour (whether directly or by implication) namely:

1. physical contact and advances; or

2. a demand or request for a sexual favour; or

3. making sexually coloured remarks; or

4. showing pornography; or

5. any other unwelcome physical, verbal or non-verbal conduct of sexual nature;

This Act has taken a huge step towards the protection of women as before the enactment of this legislation no law specifically dealt with the issue of sexual harassment or defined the term. However, provisions existed in various laws for the protection of women from various forms of sexual harassment.

The list of laws which deal with sexual harassment are as follows:

1. Indian Penal Code:

a. Section 294:

This section says that if any person does any sort of an obscene act in public or sings or recites any obscene song, ballad or statements or words in a public place or near any public place to the annoyance of others. Then such a person shall be punishable with an imprisonment for a term which may extend to three months or with fine or with both.

This section provides a protection to all irrespective of gender and ensures that no person is harassed or made uncomfortable in a public place by any person. This section is a sigh a relief to all girls who face the problem of eve-teasing and harassment on roads in the form of passing comments, remarks or sings songs to annoy the female. As this section not only makes it an offence but also provides for the punishment.

b. Section 354:

This section provides protection to women from any sort of assault with an intention to outrage the modesty of the female. This section states that if any person assaults or uses criminal force against any women with an intention to outrage her modesty or knowing that such action would likely result in outraging the modesty of the women then such a person shall be punishable with an imprisonment for a term which may extend to two years, or with fine, or with both.

This section protects all females form any sort of assault or criminal force which would outrage their modesty. This section thereby protects the females from being harassed in any form which would outrage their modesty.

c. Section 354 A:

This section was not present in the Code initially but was incorporated by an amendment. This section makes sexual harassment an offence and also defines it. The section says that if a man commits any of the following acts including

i) a physical contact and advances involving unwelcoming and explicit sexual overtures or

ii) a demand or request for sexual favours or

iii) showing pornography against the will of a woman

iv) making sexually coloured remarks

then such a person is considered to be guilty of the offence of sexual harassment. The punishment prescribed for the offence under clause i, ii, iii of the subsection 1 of section 354 A shall be punished with a rigorous imprisonment for a term which may extend to three years or with fine or with both. While as the punishment prescribed for the offence under clause iv shall be punishable with an imprisonment for a term which may extend to 1 year or with fine or with both.

This section makes sexual harassment an offence and provides protection to women. This section strictly states that if the abovementioned acts must be committed by a man to form an offence.

d. Section 354 C:

This section makes voyeurism an offence stating that watching or capturing an image of a woman when engaged in a private act where she does not have an expectation of being observed either by a perpetrator or by any other person at the behest of such a perpetrator or disseminates such an image shall be punishable on the first conviction with an imprisonment for a term which shall not be less than 1 year and can extend to 3 years and such a person shall also be liable to pay fine. If in case of subsequent conviction, the imprisonment shall not be less than 3 years but the same may extend to 7 years with fineThis Section protects the women from being observed in her private moments and provides for a punishment for the offender in two phases.

e. Section 354 D:

This section makes stalking an offence and states that if any man follows a woman and contacts her or makes an attempt to contact a woman to foster personal interaction repeatedly despite clear indication of disinterest by such a woman or in any way monitors the internet, email or other forms of communication used by a woman is considered to have committed an offence of stalking. This section also provides for exceptions as to when such stalking is done to prevent or detect a crime and the person stalking is duty bound to protect or prevent the crime. The section provides that whoever commits the offence of stalking women shall be punished with an imprisonment for a term which may extend to 3 years and shall also be liable to pay fine at the first conviction. However, on subsequent conviction imprisonment of a term extending up to 5 years with fine is prescribed by the section.

f. Section 503:

This section makes criminal intimidation an offence and states if any person threatens a person with an injury to the person or reputation or property or to the person or reputation or property of anyone in whom such a person is interested.

This section protects a woman when any sort of sexual advances made by threats to harm her physically or her reputation or her property then the person is guilty with criminal intimidation punishable with an imprisonment for 2 years with fine.

g. Section 499:

This section deals with defamation and makes morphing of a picture of a woman with an intention to defame her punishable with an imprisonment for a term which may extend to 2 years or with fine or both

This section protects the females from being harassed in the name of publishing of her pictures with the intention to defame her.

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h. Section 509:

This section states that if any person with an intention to insult the modesty of a women says something or makes sounds or gestures or exhibits any object with an intention that the same be noticed and heard or in any way intrudes the privacy of a woman the such a person shall be liable for an imprisonment which may extend to one year or with fine or both.

2. Information and Technology Act:

a. Section 67:

This section prescribes punishment for publishing obscene material in any sort of electronic form. The section reads as follows;

“Whoever publishes or transmits or causes to be published or transmitted in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either description for a term which may extend to three years and with fine which may extend to five lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to five years and also with fine which may extend to ten lakh rupees”.

This section protects the basic decency and morality of women and ensures that no one exploits them.

3. Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013

This Act is the first legislation drafted to deal with the problem of sexual harassment. The Act concerns harassment suffered by the females at their workplace. The Act lays down a detailed definition of the term sexual harassment and also provides for various other provisions to be adopted by the employer to curb the menace of sexual harassment.

The Act provides for the establishment of Local Complaint Committees at the district level and also provides for the establishment of local complaint committees in the workplace to deal with the complaints of sexual harassment in the workplace. The Act also prescribes the procedure for filing a complaint and the mechanism available to get justice.