Intern Sexual Harassment: Section 354 or Section 354A IPC?

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The Times of India has carried a news item “If booked under Sec 354A, Ganguly may get 3 years in jail”. No doubt, under the amended Indian Penal Code, any man who commits the offence specified in section 354 A i.e. Sexual harassment, shall be punished with rigorous imprisonment for a term which may extend to three years, or with fine, or with both. However, the fact is, the amendments in criminal law that got inserted by way of Criminal Law (Amendment) Act, 2013 will not apply to the charges against Justice Ashok Kumar Ganguly. The alleged “unwelcome behaviour of a sexual nature” took place in December 2012 as per the victim and thus it preceded the legal amendments carried out on February 3, 2013. A law that came into force on the 3rd day of February, 2013 cannot be taken into account for the act that was committed in December 2012.

Protection from retroactive criminal law has by and large been accepted by all countries without any disagreement. The thumb rule of Criminal Jurisprudence is that the law as it stood at the time of commission of offence should govern it.  A retrospective law is one which travels back and carries forward a previous transaction to the present. Immunity is granted to an offender from being tried under a law which is enacted subsequently.  Retrospective effect is alien to criminal law. This rule is anchored on the principle that the doer cannot be imputed with the element of mens rea which is ordinarily the core ingredient for the proof of guilt. This universal principle is engrafted in our Constitution under Article 20(1) which prohibits the application of criminal legislations retrospectively as it being “ex-post-facto laws”.  It says that no person is to be convicted of an offence except for violating ‘a law in force’ at the time of the commission the offence.

The IPC provision existing at the time of alleged act of Justice Ganguly was Section 354 that dealt with assault or criminal force to woman with intent to outrage her modesty. It states – ‘Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will there by outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both’.

Ideally, for conviction under Section 354 what is required to be proved is:-

(a) an assault has been committed or criminal force used,

(b) the object of the assault or criminal force is a woman, and

(c) that it was with the intention of outraging the modesty of a woman or knowledge that it was likely that her modesty would be thereby outraged.

Ironically, a Supreme Court Bench in which Justice Ganguly himself was a member, has explained in detail the ambit of Section 354 in Shekara v. State of Karnataka 2009 (14) SCC 76. It was held “In order to constitute the offence under S.354 IPC mere knowledge that the modesty of a woman is likely to be outraged is sufficient without any deliberate intention of having such outrage alone for its object. There is no abstract conception of modesty that can apply to all cases.” Further it is stated that intention is not the sole criterion of the offence punishable under S.354 IPC, and it can be committed by a person assaulting or using criminal force to any woman, if he knows that by such act the modesty of the woman is likely to be affected. Knowledge and intention are essentially things of the mind and cannot be demonstrated like physical objects. The existence of intention or knowledge has to be culled out from various circumstances in which and upon whom the alleged offence is alleged to have been committed. A victim of molestation and indignation is in the same position as an injured witness and her testimony should receive the same weight.

In State of Punjab v. Major Singh a three Judge Bench of the Supreme Court considered the question, “What is a woman’s modesty?” and it held “The essence of a woman’s modesty is her sex. The modesty of an adult female is writ large-on her body. Young or old, intelligent or imbecile, awake or sleeping the woman possesses a modesty capable of being outraged. Whoever uses criminal force to her with intent to outrage her modesty commits an offence punishable under Section 354. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive, as, for example, when the accused with a corrupt mind stealthily touches the flesh of a sleeping woman. She may be an idiot, she may be under the spell of anaesthesia, she may be sleeping, she may be unable to appreciate the significance of the act; nevertheless, the offender is punishable under the section”.

In this context, let us examine the statement of the law intern from her blog in the light of above legal position.

“In Delhi at that time, interning during the winter vacations of my final year in University, I dodged police barricades and fatigue to go to the assistance of a highly reputed, recently retired Supreme Court judge whom I was working under during my penultimate semester. For my supposed diligence, I was rewarded with sexual assault (not physically injurious, but nevertheless violating) from a man old enough to be my grandfather. I won’t go into the gory details, but suffice it to say that long after I’d left the room, the memory remained, in fact, still remains, with me”.

The intern while writing this blog has carefully used the word “sexual assault” (not physically injurious, but nevertheless violating). It is enough to attract the  offence under S. 354 IPC, but Committee of three judges of the Supreme Court has carefully chosen the words ‘unwelcome behaviour’ and ‘conduct of sexual nature’ which find a place in amended 354 A.

Whatever may be consequences of the jugglery of words, since the alleged act has been committed prior to the amendment, one thing is certain, Justice  Ganguly will be not be charged under 354 – A , the new amendment., but certainly S.354

10 thoughts on “Intern Sexual Harassment: Section 354 or Section 354A IPC?

  1. Durga

    Its very scary indeed….How can only a woman’s word be taken as truth? How can one assume that all women are truthful and all men are raping and molesting liers? Even a murderer cannot be convicted without proper evidence and till the time it has been proved beyond doubt that the crime has been commited.

    Reply
  2. Dr.A.V.Ramana Rao

    Sec.354 IPC.,498 A IPC and DVC Acts framed for the protection of Women with all good intentions and motto are more often misused and exploited by the fair sex.Under the garb of these protective sections the complainants i.e. women are harrassing,blackmailing and freightening men beyond any imagination.Mere complaints without any basis or based on a very poor baseless basis or facts are enough to cause all possible harrassment to the men folk.Of all these Sec 354 is more misused .The slightest comments of appreciation of a woman are being dragged by women to attract this Sec.Is it Justice?

    Reply
  3. Joginder Singh Kular

    Justice Ganguly is in a very tricky position even if the Law passed on Feb. 3,2013 is not applicable to him. Firstly the Supreme Court committee has not heard him before indicting him. The way things are going on , the Law is likely to be misused by some unscruplous persons like the Dowry Act or Domestic Violence Act. What are the safe guards gainst such misuse?

    Reply
  4. Sri Aiyer Raju Sreenivasan

    It is scary. It is frightening because the feminist-Marxist mobocracy driving the media these days have usurped to itself the role of a plaintiff, judge and the executioner. In the present case, whatever has been alleged against the Honourable Justice AK Ganguly (JAKG) if true, is despicable, and deserves to be condemned by all means, and also punished.

    The million dollar question is, is the allegation true?

    What is the proof that JAKG acted the way he has been accused of?

    Has the CrPC been amended to state that a mere accusation is enough to serve as proof against the man accused?

    If a mere accusation is proof of crime committed, then where is the need for the song and dance surrounding it in the form of enquiry committee, hearing etc. If arriving at “truth” is as simple as saying untruth, almost 50% of cases lying piled up in various courts would be eliminated.

    If a woman’s word is enough to declare the man guilty, then it would mean we have entered the realms of Kangaroo Courts of Justice! Jurisprudence should then be stomped, torn, spat upon and burnt down.

    This Visakha ruling of 1997 by the Hon’bl Supreme Court seems to have only cuckolded jurisprudence in our country, as it has come to mean punishing an innocent man because he has been accused of something which in reality he may not have done, by a woman and the woman is presumed to be the counterpart of Raja Harishchandra in the present evil days!

    Under the circumstances, I would like to see what the Hon’bl SC says in my case against JNU where I am fighting against the punishment of compulsory retirement based on a trumped up charge of sexually harassing a female Professor that I sent her lewd emails on 11 and 12 April 2008 requesting her to perform Axl Rose (an anagram for a basic instinct) on me. The point to be noted here is the complainant claims to have deleted the alleged obscene emails both from her inbox and trashcan because of which she was unable to produce a hard copy.

    AND the Delhi Police Cyber Cell and Yahoo reported that my ID was registered on 14 Feb 2008 subsequently accessing it on 30 April, 14 & 18 May 2008! This IMPLICITLY PROVES that I had not even logged into my account on those two culpable days of 11 & 12 April 2008, and the fact that you cannot send an email without logging into your account cannot be contested.

    The Single Bench and Double Bench of Delhi High Court have already held me guilty under the Visakha blah blah, that in spite of the proof of innocence as contained in the Delhi Police Cyber Cell Report and the Yahoo Report, I have committed the crime of sending her amorous emails.

    Under Visakha blah blah, the very honourable DHC has rejected proof of innocence as provided by a Central Law Enforcement Agency such as the Delhi Police Cyber Cell, and an E-mail Service Provider like Yahoo, and have depended on conjectures, surmises, slander, and lies cooked up by the complainant and JNU. Being a Professor and “highly learned” perhaps helps a mind manufacture untruth so very easily.

    It would be very interesting to see what the Hon’bl Supreme Court opines in this matter. If I lose my case there also it would be a good idea to have the symbol of Kangaroo etched atop our courts, and the motif of “Yato Dharmastato Jayah” be erased or corrected to read as “Yato Adharmastato Jayah”.

    The two judgements of DHC in my case can be accessed at:
    (1) http://lobis.nic.in/dhc/VJM/judgement/23-03-2013/VJM13032013CW25412011.pdf
    (2) http://lobis.nic.in/dhc/VIB/judgement/23-08-2013/VIB23082013LPA3302013.pdf

    Reply
  5. Surajit Sen

    Has he committed such things? Are his action,s wrong? Are we inviting someone to deliberately complain ? Is this politically Bias and mala fide? Do we need to ask these question, living in a politically motivated society and where democracy has failed the people….

    Reply
    • Dr.A.V.Ramana Rao

      All the complaints under thses three Cr.P.C.Sections like 498 A,DVC, and 354 are sufficiently misused by womenfolk. Most of the complaints are meant to achieve ulterior motives of the complainant in addition to the politically motivated aims.To disqualify a men member to contest an election or to disqualify a man from his job and to draina person of his societal respect and money these provisions are amply helping the women folk.The Judiciary should do something to protect the men from the onslaught by woment through misuse of these sections.

      Reply

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