Understand The Law Relating To Sexual Harassment In India
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.
- 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 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.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.
- Important definitions – A bailable offence is one in which accused can ask for bail as a matter of right from the police itself. Rest are non bailable offences where the accused cannot ask bail as a matter of right and it is on the discretion of the concerned magistrate. A cognizable offence is one where police can investigate and arrest the accused without warrant. A non cognizable offence is one in which police cannot investigate without obtaining permission from magistrate u/s 155(2) CrPC.
- All sexual offences under IPC are cognizable and non bailable except sections 354A, 376B and 509.
- 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.
- A survivor can lodge a ‘Zero FIR’ irrespective of the jurisdiction in any police station and the information will b sent by such police station to the police station with jurisdiction to investigate. Police cannot refuse to register FIR in cases of cognizable offences.
- 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.
- 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.
- If even SP does not help her, she can file a complaint to the jurisdictional magistrate u/s 156(3) CrPC.
- The survivor can also assume the role of prosecution and lodge a private complaint u/s 200 CrPC before the magistrate.
- The magistrate u/s 156(3) can direct for registration of FIR and investigation. [Pre cognizance u/s 190]
- If the survivor lodges a private complaint, magistrate may take cognizance and order enquiry u/s 200 and 202 CrPC. It can pursue the complaint and record evidence of witnesses to issue process, or, he can postpone the issuance of process and direct an enquiry by himself, o, he can postpone the issuance of process and direct an enquiry by any other person.
- If the offence is triable by sessions court (g rape u/s 375, 376 IPC), magistrate cannot order police investigation in the post cognizance stage.
- On lodging of an FIR, the police has to immediately start investigation.U/s 157, Police has to send a report to the concerned magistrate empowered to take cognizance and magistrate can direct investigation u/s 159. The investigation generally involves the following steps – proceeding to the spot, ascertainment of facts of the case, discovery and arrest of suspected offender, collection of evidence (examination of witnesses, recording their statements u/s 161 CrPC, statement of rape survivor can only be recorded by a woman police officer at her residence which is not required to be signed, search of place, seizure, medical examination etc)
- Investigation is to be completed without unnecessary delay.
- Section 173(1A) mandates that investigation in relation to rape of a child may be completed within 3 months of recording FIR.
- 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.
- During investigation, a magistrate can record confession by an accused in accordance with Section 164 CrPC.
- The statements of woman survivors have to be recorded by the magistrate u/s 164(5A) (a) as soon as the commission of offence is brought to the notice of police.
- 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.
- 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.
- 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.
- 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.
- Once the investigation is complete, the police has to file the Police Report u/s 173(2) before the magistrate. Such report apart from other details must contain as to whether the medical examination report of survivor is attached or not. In this report, if the evidence collected establishes that the offence alleged was committed, the police requests the magistrate to take cognizance and summon the accused (Charge sheet/Challan). If otherwise, the police states that no case as alleged is made out and seeks permission to close the case (closure report).
- On a Charge Sheet being filed, the magistrate can either take cognizance and summon the accused or direct a further investigation u/s 173(8).
- On a Closure Report being filed, the survivor can file a Protest Petition before the magistrate which is treated as a complaint challenging the closure of case.
- The magistrate can take cognizance after deciding the protest petition and summon the accused.
- After summoning the accused, the accused have to appear and seek bail. The magistrate can either grant bail or commit the accused to custody. If the offence is triable exclusively by a sessions court, he sends it to the Sessions Court. Else he proceeds to frame charges thereafter.
- The public prosecutor conducts trial and opens the case.
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 author is an advocate practicing in Delhi. He is the revising Co-Author of the 2018 edition of Ratanlal and Dhirajlal Code of Criminal Procedure. He can be reached at firstname.lastname@example.org
[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]