Taking Legal Action

Taking Legal Action

As of now, India does not have any law specifically for sexual harassment. No doubt, the existing laws are wrought with loopholes. However, it is with these existing laws that we need to move forward.

In the process, it is important for you to know your rights. An aware and informed woman has a better chance of dealing with the system.

Before going for this option, do be aware of loopholes and problems in using the law. .

Laws regarding sexual harassment is based on ‘outraging modesty’, ‘annoyance’ or ‘obscenity’ which are difficult to define and therefore difficult to use.

The entire criminal procedure is a long drawn affair. Cases have been known to reach the Court only after considerable time, and even when it does, the entire process is never as effective (as it should be). Some of the important gaps, you need to be aware of, are as follows:

• The burden of proof still lies on the woman to a large extent. She not only has to prove that she possesses the modesty, but also that the harasser has outraged or insulted her sense of decency with his actions.
• The victim has to also prove that the conduct was sexual in nature.
• The laws are filled with archaic terms such as ‘modesty’ (a concept which is subjective), ‘annoyance’ (a concept which is relative) and ‘woman’ (who could be of any age).

Supreme Court Guidelines for Sexual Harassment

The Supreme Court had passed, what is now called the Vishaka Judgment, as a result of a long and resilient battle of women’s groups.

At the centre of this struggle was a brave and valiant figure: Bhanwari Devi. A village saathin [a village worker, employed as a field worker under the Rajasthan’s government’s Women’s Development Programme], Bhanwari Devi was gang-raped by upper caste men, as retaliation for protesting against child marriage in her village.

This was not the end of her ordeal. Police women taunted her mercilessly through the night when she went to register a complaint, refused her medical attention and socially boycotted by the village. Women’s groups diligently organized a campaign for justice. In December 1993, in the Vishaka vs. State of Rajasthan case, the High Court declared that Bhanwari Devi was gang-raped as a form of vengeance. Finally women’s groups filed a Public Interest Litigation in the Supreme Court.

The Supreme Court decision on Vishaka vs. State of Rajasthan case in 1997 became a landmark judgment to deal with sexual harassment at workplace. Not only was sexual harassment defined for the first time, but the onus of responsibility was legally laid on employers for establishing appropriate disciplinary action, to create awareness and for setting up a Complaints Committee. The judgment also has provision for worker’s initiative and for third party harassment. The guidelines also made it mandatory for the employer to initiate criminal proceedings in case it amounted to an offence under the Indian Penal Code.

The Vishaka guidelines are applicable to any office set-up, irrespective of whether it is public, private or the voluntary sector. Employers have to heed the Vishaka guidelines and take steps.

• Sexual harassment must be prohibited in your Organization, as a company policy, irrespective of whether you are in the public or the private sector. This should be made known to all employees, both when they join and they be sent a periodic reminder as well. The company must recognize sexual harassment as a serious offence.
• All employees must fall within the purview of the sexual harassment policy, irrespective of whether the accused/the victim belongs to administration, the management, other grade officers or member of the Board/Governing Body.

For this to happen, you must know what sexual harassment constitutes and relay it to your entire staff (both men and women) in simple words and with context specific examples.

• In case you are in the public sector, you must include sexual harassment as a form of misconduct in the rules relating to conduct and discipline.
• In case you are an owner of a factory, it is imperative you recognize sexual harassment as part of the standing orders under the Industrial Employment (Standing Orders) Act, 1946.
• If a particular offence falls under the Indian Penal Code, it is your duty to register it separately with the Police.
• Besides these, all employers must follow certain preventive measures, such as spreading awareness regarding sexual harassment policy, discussing such matters in meetings, creating awareness for women’s rights and so on.
• Appropriate disciplinary action must be taken if the offence amounts to misconduct.

A complaints mechanism must be set in place, with the authorized person, an informal/formal mechanism and necessary contact details in place. The system should instil a sense of confidence in its women employees.

• A complaints mechanism is mandatory in all workplaces.
• The Complaints Committee should be headed by a woman.
• At least 50% of its members should be women.
• It must include an external or a Third party member, preferably a NGO/individual familiar with issues of sexual harassment.
• The complainant has a right to keep it confidential. This must be respected by the Complaints Committee during the entire formal process.
• The complaints committee must be time bound. There should not be unnecessary delays in hearings.
• The members must be sensitive to the issues concerning women in any workplace.
• The complaints committee must present an annual report to the concerned Government department or the Organization.
• The complaints committee too has a preventive role to play, similar to that of the employer/management.
• The complainant and the witnesses have a right to confidentiality. You as an employer must respect that during formal proceedings.
• You, as an employer, are bound to institutionalize proper training of the complaints committee members. Invite experts in the field of gender for drafting a sexual harassment policy.
• Keep the complaints committee as an autonomous unit, so that it can work independently when the employer himself is accused of sexual harassment.
• In case of third-party sexual harassment, the complainant must be assisted and supported by you while dealing with the same.
• Set aside a portion of the budget for the activities of Complaints Committee, training workshops, informal discussions, etc

As a victim of sexual harassment or the complainant, you should be aware of the definition of sexual harassment and the method of formally taking up the issue.

• You have a right to make your co-workers aware of existing sexual harassment policy or the Vishaka guidelines.
• You can broach issues of sexual harassment in employer-employee meetings or staff meetings.
• You have a right to question your employer/management regarding sexual harassment.
• In case of sexual harassment by an outsider/client/third-party member, you have a right to claim assistance and support by your employer.
• Know of the employers’ responsibilities, as laid down, by the Vishaka guidelines.
• The employer, management & the complaints committee must guard you and the witnesses to your sexual harassment against retaliation/ victimization/ trivialization of the issue.

Filing a Criminal Case

Filing a criminal case means you have decided to go the whole way. It will mean time and money. It begins foremost with lodging a First Information Report (FIR). Since this is a criminal case, the latter can be registered by other persons as well. For instance, in case of hostile work environment, a group of colleagues can file a joint case as well. Besides, in case of sexual harassment at workplace, the employer is legally bound to file a complaint to the police as well.

• It is important that you know the difference between Cognizable and non-Cognizable Offences. In case of a non-cognizable offence (where the police cannot arrest the accused without a warrant), the victim is required to fill a Non Cognizable Report, which is then forwarded to the Magistrate for further direction.
• This is followed by an investigation by the police (the Investigating Officer), who at this stage collects evidence by recording statements, questioning colleagues and employer, collecting documents (if any) and so on. Based on its investigation, the police can decide if the accused needs to be arrested or not. Post completion of the investigation, the police is required to draw a charge-sheet, which is to be submitted to the magistrate.
• The case is then presented in the court, whereby the accused is either sent to judicial custody (for cognizable offences) or where the police seek permission to investigate the offence (for non-cognizable offence).
• Charges are framed by the court, where the accused is informed of the same and is asked to take a stand (guilty or not).
• Evidences and witnesses of both the parties (prosecution and defence) are examined and cross-examined.
• Arguments are placed by both the parties.
• Finally resulting in judgment is announced, where the accused is either punished or acquitted.

Filing a Civil Case

A sexual harassment case can be filed under the Tort laws, filed under the lowest Civil Court. While criminal laws aim to bring punishment to the acquitted, the civil law is the only way by which a Plaintiff (the one who has filed the suit) can get compensation. However, the procedure is complicated and it is important you get legal advice.

• The first step in filing a suit is to prepare the complaint. The latter is a detailed document comprising names and addresses of plaintiff and defendant, details of the incident, detailed pleadings, value of the suit, relief sought and all necessary list of documents supporting argument.
• You must file the plaintiff within one year of the date of incident, in case you seek compensation.
• Once a suit has been filed and addressed by a judge or concerned authority, the latter issues summon to the defendant to file a statement. Moreover, this written statement must be filed within a month of summon being issued.
• Following this, both plaintiff and defendant are to appear in the Court, failing which the case is dismissed. In case the defendant alone fails to appear, an ex parte order is passed by the court.
• The first hearing is followed by interrogations, inspection of documents and statement of issues, culminating finally to pronouncement of judgment.
• During the period of the case, it is duty of the Complaints Committee to protect you from further harassment, on written complaint, either from the accused or co-workers.

Cognizable and Non-Cognizable Offences

Laws under the Indian Penal Code

We briefly mention some of the laws under the Indian Penal Code (IPC). Please note that you need to go to a lawyer before you decide on using them.

IPC Sections 294: Obscene acts and songs

Whoever, to the annoyance of others:
(a) Does any obscene act in any public place, or
(b) Sings, recites or utters any obscene song, ballad or words, in or near any public place

IPC Section 354: Assault or criminal force to woman with intent to outrage her modesty

Assault or use of criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty [Cognizable & bailable]

IPC Section 509: Word, Gesture or Act Intended to Outrage Modesty

Intending to insult the modesty of any woman, via speech, comments, sound or gesture, or exhibits any object, intending that such word or sound will be heard, of that such gesture or object will be seen, by such woman, or intrudes upon the privacy of such woman [Cognizable & bailable]

IPC Section 503: Criminal intimidation

Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.

IPC Section 354 is applicable only when the harasser uses force on the woman, with the intention of outraging the modesty of the woman.

• It is a more serious Section than Section 509 with more stringent punishment of imprisonment for up to two years or a fine, or both.
• The conduct must be sexual in nature. Moreover, it will not include verbal forms of harassment such as whistling, passing lewd comments, singing songs and so on.
• This Section would cover offences such as all physical forms of sexual harassment, including groping, assault, and molestation. Any act which breaches her privacy such as sending annoying messages to her cell, workplace, or inspecting her private belongings without her permission or touching a woman’s clothes knowing it will annoy her will fall under this Section. Any act which is committed with the knowledge that it will annoy or intimidate a woman will come under the purview of this Section.

IPC Section 509 covers words, acts, gestures which are of sexual nature and which intend to insult the modesty of a woman or breach the privacy of a woman.

• Punishment under this Section can lead to simple imprisonment for up to one year or fine, or both.
• The conduct must be sexual in nature. The Section does not include physical forms of harassment.
• Section 509 covers offences such as passing lewd comments, singing songs, whistling, making obscene gestures, following a woman (like in stalking), sending lewd letters or e-mails, making indecent overtures, situations of both hostile work environment and quid pro quo. Any form of conduct that intimidates/ shocks/embarrasses the woman. Any act that restricts the movement of the woman publicly.
• Under this section, a sexually harassed woman must prove that the harasser intended to insult her modesty. This is proved from the gestures and actions of the harassed himself.

What is Modesty?

“…the ultimate test for ascertaining whether modesty has been outraged is that the action of the offender could be perceived as one which is capable of shocking the sense of decency of a woman.”
-The Supreme Court judgment on Bajaj v. K.P.S. Gill with regard to interpreting the term ‘modesty’ (1995) 6 SCC 194

One of the most contentious issues of the Indian Penal Code is that of the term ‘modesty’. The Supreme Court in its decision of Apparel Export vs. A.K. Chopra case, defined sexual harassment as “any action or gesture, whether directly or by implication, aims at or has the tendency to outrage the modesty of a female employee”. It is a criterion that needs to be filled in both Section 354 and 509. According to the Online Merriam-Webster, it means ‘propriety in dress, speech, or conduct’. This proves contentious as often the complainant’s modesty is judged on the basis of her demeanour and nature. Further more, the complainant must possess the modesty in order for it to be outraged. Though the Supreme Court has given a more positive decision in the Bajaj v. K.P.S. Gill case, lack of ‘decency’ is often used by the defendant.

IPC Sections 294 is the obscenity clause with respect to acts of lewd nature in public spaces, thereby causing inconveniences to people around.

• Punishment can be up to three months or a fine, or both.
• This Section would cover offences such as passing pornographic e-mails in workplace, cracking offensive jokes of sexual nature, passing lewd comments, singing obscene songs, making sounds or gestures of sexual activity in public and so on.
• A crucial index of whether an act falls within this Section is whether the song/gesture/words publicly annoying to the harassed. Since this is subjected to the mental state, it must draw from proved facts.

IPC Section 503 is crucial in context of a woman who is facing sexual harassment at workplace or for a woman who is being harassed/ stalked by her rejected partner.

• This Section covers any act which is a threat of sexual harassment or which instils fear in a woman for aggravated crime. For instance, when an employer/ supervisor/ stalker does not claim sexual favours in so many words, but hints towards the same. Or when a woman is feeling intimidated by a jilted partner or even a complete stranger. It could also be a threat to privacy, property and to the woman’s reputation.
• Any act of threat/intimidation which forces/coerces a woman to do what she is not legally bound to do falls under the purview of this Section. For instance, when a woman is threatened for not coming out for a date.
• Section 503 would cover any act of threat which coerces a woman not to follow options which she is legally entitled to. For instance, when a woman is threatened with adverse consequences for pursuing a formal complaint of sexual harassment or other public decisions.

Indecent Representation of Women (Prohibition) Act (1987) besides Section 294, also deals with the issue of obscenity or the indecent display of women in publications, and especially advertisements.

• Section 7 of IRWA is especially helpful in context of sexual harassment at workplace, for instance, in situations where women are subjected to offensive display of pornographic material in work places, emails, text messages and so on.
• Moreover, if it is proved that such obscene display of porn material was done with the approval or neglect of the supervisor or the director, the latter will be punished by law.
• Punishment under this Act can be imprisonment of up to 2 years or fine or both.

Laws dealing with Stalking

It is important to know the sections in Indian law that may be used for a case of stalking. There are no separate laws dealing with stalking. Cases of stalking may fall under the following sections.

IPC Sections 294: Obscene acts and songs

Whoever, to the annoyance of others:

(a) Does any obscene act in any public place, or

(b) Sings, recites or utters any obscene song, ballad or words, in or near any public place

IPC Section 354: Assault or criminal force to woman with intent to outrage her modesty

Assault or use of criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty [Cognizable & bailable]

IPC Section 509: Word, Gesture or Act Intended to Outrage Modesty

Intending to insult the modesty of any woman, via speech, comments, sound or gesture, or exhibits any object, intending that such word or sound will be heard, of that such gesture or object will be seen, by such woman, or intrudes upon the privacy of such woman [Cognizable & bailable]

IPC Section 503: Criminal intimidation

Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.

Section 66, IT Act, 2000: Hacking with Computer System

Whoever with the intent of cause or knowing that is likely to cause wrongful loss or damage to the public or any person destroys or deletes or alters any information residing in a computer resource or diminishes its value or utility or affects it injuriously by any means, commits hacking.

Section 67, IT Act, 2000: Publishing of information which is obscene in electronic form

Whoever publishes or transmits or causes to be published in the electronic form, any material which is lascivious or appeal 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, will be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to one lakh rupees and in the event of a second or subsequent conviction with imprisonment of either description for a term which may extend to ten years and also with fine which may extend to two lakh rupees.

Section 66, IT Act, 2000

• Section 66 would include such instances of cyber crime & cyber stalking such as hacking into your email id, passwords, bank accounts and online transactions, online profile and so on.
• According to the Cyber Cell Mumbai, hacking refers to the illegal intrusion into the computer system, without the knowledge or permission of the owner or user. Hacking provides a large amount of information and personal details to the stalker, which he can use to further intimidate the victim. Putting your personal details on a porn website or a website giving dating services is a common objective among cyber stalkers.
• The stalker may also assume your online identity and harass other people.
• Punishment includes imprisonment up to 5 years and a fine up to RS. 5 lakhs.
• As a victim, you must save necessary documents such as print out of e-mails, bank transaction details, etc. Do not delete the email id or the online profile which has been hacked, as this erases important evidence.

Section 67, IT Act, 2000

• Section 67 covers instances of cyber stalking related to pornography and any other obscene material online. Publishing any such material online, which will be considered obscene, is a punishable crime under this Section.
• Punishment includes imprisonment up to 5 years and a fine up to RS. 5 lakhs.
• The stalker may get access to your photographs, morph them and publish them in porn websites.
• For proof, it is best to take screen shots of these web pages and save them for evidence.