Between Misconduct And Crime: Legal Blind Spot In Workplace Sexual Harassment

In this context, the recent Bombay High Court ruling in the case of Abhijit Baswant Nigudkar v. The state of Maharashtra² that staring at a colleague's chest, however inappropriate, does not amount to voyeurism under Section 354C of the Indian Penal Code, 1860, has drawn attention to what appears to be a lacuna in protection. The Court held that voyeurism requires watching or recording a woman engaged in a “private act”, and that mere staring in a workplace setting, even if offensive, does not fulfill this caveat. The Court, in its textual interpretation revealed an unease – the conduct is clearly harmful, but does not fit neatly within the contours of a defined criminal offence. In this scenario, a question arises, is the aggrieved woman then, left without any legal remedy? The answer is multilayered.

The Court's interpretation cannot be faulted, because the provision has been narrowly drafted. It criminalises a very specific form of harassment – one corresponding to intrusion of privacy – watching or photographing a woman engaged in acts where privacy is reasonably expected. The sine qua non for the provision being – “a private act”-- the absence of which renders any act legally immune from prosecution under this section. A general sense of moral wrongdoing falls short of fulfilling established statutory ingredients.

If broadly looked at, even in case of sexual harassment laws, courts have often been open to expansively reading statutory provisions. The case in question being that of “outraging the modesty of a woman” under Section 354 of IPC. In the landmark case of State of Punjab v. Major Singh³, the Supreme Court gave the term 'modesty' a broad and evolving meaning, holding that the essence of the offence lies not in the act, but in the consequence. Any harm, however small, is still serious if it affects the aggrieved woman's sense of dignity. This interpretation allowed the Court to move beyond an exhaustive list of what constitutes modesty, to its recognition in a wider sense, enhancing the catchment area for acts that could be legally prosecuted and by extension, against which remedy could be provided. Similarly, in Rupan Deol Bajaj v. KPS Gill⁴, the Court held that even a single incident of inappropriate action, coupled with intent, could amount to outraging modesty. These cases showcase how acts that might otherwise be brushed aside for being isolated, or unserious, or playful still fall under the contours of the statute and that the law is not limited to extreme or violent acts, and that it responds to any conduct that undermines dignity in more subtle ways.

These cases reflect how courts have, where necessary, adopted a purposive interpretation to ensure that legal provisions remain responsive to lived experiences. Read in this context, the present case pushes one to ponder : if the concept of “modesty” under Section 354 could be interpreted expansively, should a similar interpretative approach be employed for provisions like Section 354C? the Court in the present case departed from this approach, while the choice reflects a doctrinal stand, it also exposes the limitations of strict textual approach when dealing with sensitive and subjective cases of sexual harassment.

The difficulty becomes clearer when one considers the nature of the alleged conduct in the present case. Persistent, targeted staring at a colleague's body is not just a matter of poor behaviour, but is also an act of creation of an uncomfortable environment, intimidation and exclusion. In Vishakha v. State Of Rajasthan⁵, the Supreme Court held that sexual harassment at workplace violates guarantees of equality and dignity, and it defined harassment to include unwelcome behaviour of a sexual nature, whether physical, verbal, or non-verbal. The emphasis was on the effect of the conduct, not merely its form.

Criminal law is designed to address clearly defined, serious offences and castries significant consequences, and therefore overcriminalisation is discouraged. This distinction is important. Even when Courts read statutes expansively, a delicate balance has to be struck. The reforms introduced following the Justice Verma Committee Report aimed at broadening the scope of sexual offences, which led to the introduction of Section 354A IPC on sexual harassment. Yet, even this provision relies on identifiable acts - physical advances, demands for sexual favours, sexually coloured remarks, or showing pornography. It does not easily accommodate more subtle, pattern-based behaviour such as persistent sexualised staring, unless accompanied by explicit verbal conduct. This gap was addressed through the the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) [POSH] Act, introduced in 2013, which adopted a broader understanding of harassment, explicitly including non-verbal conduct and the creation of a hostile workplace environment.

In this sense, the act in question in the current case, falls squarely within this domain. But, yet again, the chasm between the provision and its implementation in reality is significant. Internal complaints committees are at times inadequately constituted or lack independence, complaints may be trivialised, without any meaningful remedy. In such circumstances, victims may turn to criminal law, because it is the route that appears to be the most effective one. This trajectory leads to a paradoxical cycle - behaviour that should be handled through workplace mechanisms, ends up being taken to criminal courts instead and as a result, courts are forced to reject such cases because they simply do not fit within the legal definition of a crime. Law, in its current form, therefore, creates a false binary - conduct is either a crime, or it is relegated to the domain of internal workplace mechanism. The law struggles to accept such conduct within its fold. Bridging this gap requires both better institutional mechanisms and a more context sensitive understanding of harassment under current legal framework.

The Bombay High Court judgment must be situated in this broader context. The Court did not deny that his conduct was inappropriate or capable of causing harm. It simply held that such conduct does not meet the statutory requirements of voyeurism. The discomfort with the outcome arises because the alternative mechanisms, particularly under the POSH Act, are often perceived as ineffective.

The way forward is not to dilute the requirements of criminal law, but to strengthen these very systems, that are places of first contact. At the same time, it needs to be acknowledged that there is a place for a more nuanced interpretative approach in appropriate cases. The Bombay High Court's ruling in that sense, is paradoxical, it is correct, yet incomplete. It correctly applies the law as it stands, but in doing so it also reveals the limitations of law. The evolution of Section 354, as seen in Major Singh and KPS Gill, shows that courts are capable of adapting legal concepts to changing social landscapes without abandoning doctrinal discipline altogether. Whether a similar evolution is possible for other provisions, such as Section 354C or 354A of the IPC, remains an open question.

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