The #MeToo campaign has highlighted the plight of women and a number of survivors have come forward to share unfortunate incidents of sexual harassment. In this piece, my endeavour is to summarize the law (Both – substantive and procedural) pertaining to this issue.
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 survivor 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 survivor 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 I 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.
For convenience and ready reference I am tabulating the relevant sections from each legislation so as to enable the reader to go through the same and check whether the incident of sexual harassment falls in the definition or not.
Please note that penetration is not necessary for constituting rape and ‘Consent’ means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act. A woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity. Consent is immaterial if the age of victim is below 18 years.
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.
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.
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]
During trial, the survivor has a slightly narrow role as that of the victim and prosecution witness as the trial is strictly between the state and the accused. However, u/s 301 and 302 CrPC, the victim through her counsel can assist the prosecution on being permitted by the court.
If the accused is granted bail. The survivor can seek cancellation of bail before the court which granted the bail or challenge the order granting bail before a higher forum.
After the trial, the court adjudges the accused as either convicted or acquitted. If convicted, it proceeds to conduct sentence hearing and prescribe the quantum of punishment. If acquitted, the accused is released. The victim has now a right to appeal against acquittal without obtaining leave from court and challenge the quantum of sentence awarded in cases of conviction.
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.
[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]