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Introduction:-
Whether eve teasing is a recognized principle of liability or not
and if not is it the high time to recognize it as an independent
area of liability. This project work deals with the analysis of the grave problem of
eve
teasing in India, the laws casted to stop it and also with the
legal
remedies in the form of compensation that are available to the
plaintiff.
Observing the present scenario which is most unsafe for women ,
this
project also puts forward and presses the need of including eve
teasing
under a new head of liability. This would mean more stringent laws
against eve teasing. The remedy that is provided to the victim
will be
of a larger degree. This would definitely see a decline in the
rate of
eve teasing in India.
In other words, this project tries to put some light on the grey
areas
of sexual harassment or what is called eve teasing in India.
Examining
these grey areas also has the intention of attracting the
attention of
eminent jurists, lawyers and the la makers to this grave civil
wrong and
to pressurize them to formulate some laws in this direction so as
to
give some relief to the victim which is otherwise impossible.
Torts - An Introduction
One of the primary functions of the law is to resolve the
conflicting
interests and balance the competing claims. Every time the social
relation causes a friction , the law comes into the picture to
resolve
such seemingly complex conflicts. Different laws govern the human
relations of varying nature.
Law of Torts , which primarily consists of principles developed by
the
courts , aims at providing a remedy whenever and wherever a legal
injury
is caused by a civil wrong of a fellow being and for which no
remedy is
generally available under some specific civil law.
Property rights and personal freedoms are , inter alia , the
interests
protected by the law of Torts. It tries to remedy them by way of
compensation and in some cases through Injunction. The instant
branch of
Law, the whole thrust of which is to safeguard against unlawful
infringements of various kinds, has certain edge over other laws.
The
genesis of this branch is related to the Common Law principle of
Justice, Equity and good Conscience. It can provide relief against a
conduct
which is unjust though not violative of any law stricto sensu. The
principles of Torts have been found to be indefinitely flexible.
The
courts can mould them as per the changed scenario without being
criticized for doing violence with the words of any statute. Also
, its
compensatory mechanism takes better cognizance of the plight of
the
victims. It has a residuary machinery for redressal of wrongs in
the
area of civil wrongs. Thus, we can definitely say for sure that
Law of
Torts has become an integral part of any legal system.
The word Tort has been derived from the Latin word Tortum which
means
to twist. It includes that conduct which is not straight or lawful
but
is twisted , crooked, and unlawful. This branch of law consists of
various Torts or wrongful acts whereby the wrong doer violates
some
legal rights vested in another person. The law imposes a duty to
respect
the legal rights vested in the members of the society and a person
making a breach of that duty is said to have done the wrongful act
.
Tort is a breach of duty recognized under the Law of Torts.
Some Definitions
It is a civil wrong for which the remedy is a Common Law action
for
unliquidated Damages and which is not exclusively the breach of a
contract or the breach of a trust or other merely equitable
obligation.- Salmond
Tortious liabilities arise from the breach of a duty primarily
fixed by
law : this duty is towards persons generally and its breach is
redressible by an action for unliquidated damages.
- Winfield
Torts can be conceptualized to include the following elements :-
Tort is a civil wrong.
This civil wrong is other than a mere breach of contract or breach
of
trust.
This wrong is redressible by an action for unliquidated damages.
Is There Any General
Principle Of Liability
The Basic question is that does the Law of Torts consist of a
fundamental general principle that it is wrongful to cause harm to
other
persons in the absence of some specific ground of justification or
exscuse , or does it consist of a number of specific rules
prohibiting
certain winds of harmful activity and leaving all the residue
outside
the sphere of legal responsibility ?
There are two schools of thought on this Issue.
Salmond's View
Salmond advocated the Pigeon Hole Theory. He said that there
should be
fixed heads of liability in Torts like Nuisance , Defamation etc.
All
the new cases that would arise in the course of time should be
included
in these fixed heads of liability only by expanding them. There
should
be no new heads of liability .He was stringent in his approach.
Winfield's
View
Winfield advocated the open chain link Theory .He advocated the
formulation of new heads of liability as and when the need arises.
He
believed in the expansion and flexibility of Law. He belonged to
the
Liberal School of Thought.
Advocating Winfield's Stand
I personally would like to advocate the Winfield's stand on the
issue of
the heads of liability .It is liberal. It is flexible and
expandable .It
ensures full justice to a newer condition and a case by giving it
enough
space by creating a new head of liability. It also helps in
ensuring
speedy justice when a large number of such similar cases are
reported
and are brought in front of the courts for justice. I believe in
the
growth of Law and to me, creating specific heads of liability and
to
hamper its growth .Therefore , I rate Winfield's stand above
Salmond's
view.
Eveteasing - The Concept
Nature
Has Given Women So Much Power That The Law Has Given Them Very
Little.
- Dr. Samuel Johnson.
The term Eve
teasing is used to refer to sexual harassment of women
in
public places such as the streets, public transportation , parks,
beaches , and cinema halls. This type of a public harassment by a
lone
man or gangs of women includes such as verbal assaults such as
making
passes or unwelcome sexual jokes : nonverbal assaults such as
showing
obscene gestures , winking , whistling , and staring ; and
physical
assaults such as pinching, fondling and rubbing against women in
public
places .In addition, several instances of eve teasing have been
followed
by more violent assaults such as rape and murder.
Eve teasing is a euphemistic expression that lives in post
-
colonial
India and refers largely to sexual harassment of women in public
places,
thereby constituting women as eves, temptresses who provoke men
into
sexual titillation. This popular perception of sexual harassment
posits
the phenomena as a joke where women are both a tease and deserve
to be
teased. Considered a growing problem throughout the sub -
continent ,
eve teasing ranges in severity from sexually coloured remarks to
outright groping. It is the same story everyday.
Eve teasing may sound obscene but harmless in its behaviour but
this act
of molesting women has sometimes resulted in rape and even death
of the
victim. In one such horrific instance in Bihar, few young guys eve
teased
a 18 year old college woman on her way home ; she was outraged and
yelled at the guys. Next day the woman was kidnapped, raped and
beaten by
the same men until she was dead.
What right did these men have to violate the integrity of a woman
for no
fault of hers and why is eve teasing supposed to be a thing we are
supposed to live with?
Eve Teasing In India - Some
Facts And Figures
I goggled eve teasing and found many hits. Some thought provoking
and shocking facts and figures about eve teasing in India are as
follows:
# The expression eveteasing is Indian in origin. You wont find
it in most of the dictionaries. Native speakers of English do not
use
it.
# Studies show that 32 percent of the eve teasers are students, 35
percent are anti socials while the remaining 33 percent are middle
aged
men.
# The number of registered cases of sexual crimes against women in
India
increases from 67 ,072 in 1988 to 84000 in 1993.In 1995 alone ,
more
than 25000 cases of molestation and 12000 cases of rape were
reported in
the capital city of New Delhi. It is estimated that well over 80
percent
of the sexual crimes go unreported. For example , 7643 of the
50000
estimated instances of violence against women were reported to the
police even in Kerala , a south Indian state with the highest
women?s
literacy rate.
# An increasingly large number of college going women taking
public
transportation in Delhi have resorted to carrying pins, pen knives
, and
even daggers as a deterrent . Others have taken self defence
classes.
# A recent
survey revealed that approximately 90 percent of college women in
New Delhi have experienced sexual harassment in some shape or
form. Yet , it is estimated that only about 1 in 10000 eve teasing
occurrences are reported to the police.
# 98 percent
of the women have stated that sexual harassment on roads has
affected their personal or academic development in one way or the
other.
These facts may appear untrue and horrifying but they clearly show
the
plight of women in India. The condition is deteriorating everyday.
It is
high time , therefore , that we include eve teasing as a Tort
under a
new head of liability and curb this heinous practice.
Eve Teasing - The
Psychology Behind
Many psychologists believe that sex , love or fun is not the only
motive
that men indulge in this behaviour. Eve teasing is closely
related to
the patriarchal mindset of the Indian male. Men are raised to
believe
that they are more powerful physically and emotionally than
women.
They feel that they are doing nothing wrong just having some
fun.
Women on the other hand are made to feel vulnerable and the weaker
sex.
Teachers of psychology and social scientists believe eve teasing
to be a
result of the frustrations suffered by a majority of youth.
Disappointed
by the unbecoming attitude of teachers and indifferent parents ,
they
yearn for an outlet to vent their aggression and depression
.Besides ,
many who do not inherit good values tend to indulge in acts of
sexual
harassment.
Eve teasing can be seen as a rite of passage for boys on their way
to
becoming men. Considering that sex is not the only motive , it
would be
reasonable to conclude that the psychodynamics of eve teasing are
closely linked to the issue of masculinity and the masculine
agenda.
At the risk of over simplifying a complex phenomenon , it would
not be
imprudent to say that in our country , the construct of
masculinity is
usually equated with patriarchy .In other words , masculinity is
experienced not so much as a set of emotional or behavioural
characteristics unique to the male gender , but more in terms of
hierarchial domination over the feminine gender ; so that the most
feminine
man gets a socially dominant position over his female counterpart.
Gender segregation from childhood , lopsided parental
relationships as
well as the representation of man- woman relationship in
literature and
popular cinema , all serve to reinforce the patriarchal model of
masculinity in the mind of the growing male child.
It may appear paradoxical that in a country like India where the
mother
is generally deified, the growing male child does not learn to
respect
the members of his mother's gender. But it is because of this
deification that the boy finds it easy to slip into the
patriarchal mode
, for he does not relate to his mother as a woman, but as a
helpless and
martyred dependent who needs to be pitied and cared for.
The vocal emergence of feminism has also pushed the contemporary
male a
little on the back foot , not only the women are threatening to
encroach
on his male dominion, but also because he does not have any idea
about
how he can counter encroach on hers. So he moves squarely into the
adversarial position, something he is instinctively comfortable
with and
, during adolescence , focuses not just on how he can express
himself
sexually, but also on how he can claim his patriarchal right. As
part of
his evolution into the patriarchal role , an arena is required in
which
his valour can be expressed. Organized sport and cultural
activities are
examples of these , but require some talent and application.
Whereas
standing with a group of peers at a bus stop or in a Cineplex,
passing
lewd remarks , gesticulating lasciviously and generally behaving
obnoxiously requires mere numbers, and when the hapless girl is in
no
position to defend herself despite visible evidence of distress ,
domination gets established.
Thus, we tried to understand the psychology of an average eve
teaser
when he indulges himself in the heinous practice.
All this study has been done only to establish the fact further
strongly
that it is now high time to include eve teasing as a separate Tort
so
that this injustice and crime against the honour and dignity of
the
women can be stopped.
Eve Teasing And Tortious
Liabilities
I am sure reading the previous pages must have forced you to think
about
the plight of the Indian women. Mere thinking would not do in the
present era. We should come forward and take strong steps against
this
practice. Strong laws should be enforced to tackle this problem.
Eve
teasing should be taken as a grave offence against the dignity and
honour of a woman.
We can start by making eve teasing as a separate head of liability
under
the Law of Torts. When included in law as a civil wrong, it would
certainly see a decline in the cases of eve teasing Also the women
will
have a weapon in their hands to uphold their dignity. They will
feel
more empowered and independent.
Eve Teasing As A Tort
Let us examine eve teasing under the light of the three essential
elements of Torts. Torts can be conceptualized to include the
following essential elements:
Tort is a civil wrong.
This civil wrong is other than a mere breach of contract or breach
of
trust.
This wrong is redressible by an action for unliquidated damages.
Eve teasing is a civil wrong. The eve teaser causes injury to the
plaintiff which in turn affects her both physically and mentally.
It is
an unlawful infringement on the victim's privacy and person. She
is
tortured in the process. It also hampers her peace and happiness.
It ,
in other words ,curtails her right to enjoy her life and be happy.
Eve teasing is neither a breach of contract nor a breach of trust.
It is
an encroachment on a woman's right and her dignity.
Eve teasing is an unexpected incident. There is no question of a
contract in it. Thus , its remedy is unliquidated damages which
are to be decided by the courts according to the gravity of the
injury caused. The courts can also provide a remedy in the form of
injunction and detention also. This would force the eve teasers to
at least think thrice before they indulge in such Torts and its
basic guiding principle of
Ibi Jus Ubi Remedia
i.e. where there is a violation of a legal right , there has to be
some relief , compensation and remedy for the victim.
Eve Teasing As A Trespass
To Person
Every person's person is inviolate. Interference , however slight
with a
person's elementary civil right to security of the person , and
self
determination in relation to his own body , constitutes to
trespass to
the person.
Eve teasing is the worst form of trespass to person possible. It
is done
intentionally to hurt a woman physically , emotionally and
spiritually.
It is also done to wrongfully gain the attention of the woman. It
violates the person's elementary civil right to security of
person. It
is a grave civil wrong against women . It is more torturous for
small
girls and adolescents.
The application of force to the person of another without lawful
justification amounts to the wrong of battery. Avoidable physical
contact and advances , touching , patting , whistling , pinching,
physical assault and molestation by the eve teasers amounts to
Battery.
An unwanted physical touch , an unwanted kiss all amount to
battery and
are actionable by the Law.
The act of putting another person in reasonable fear or
apprehension of
an immediate battery by means of an act amounting an attempt or
threat
to commit a battery amounts to an actionable assault. An eve
teaser also
commits a assault when he commits the shameful act of eve teasing.
Thus, we can say that eve teasing amounts to Trespass to person
as it
constitutes both Battery and Assault.
Compensations And Remedies
Eve teasing is a civil wrong . It is an unlawful infringement of
the
victim's legal rights. So according to the principle of
Ibi Jus
Ubi
Remedia
there should be a remedy for the victim in the cases of eve
teasing.
This part is very important for many reasons.
Firstly , it gives relief to the victim as she can recover the
loss
caused to her.
Secondly, it gives the victim immense satisfaction to see the eve
teaser
punished and admonished. She develops a sense of satisfaction ,
happiness and regains her confidence and self esteem.
Thirdly , it gives a strict warning to the eve teasers so that
they do
not indulge in this heinous practice. It , thus , strongly
condemns the
practice of eve teasing.
The remedies can be in the following forms:
Public Humiliation: The eve teasers should be humiliated
public ally so
as to make them aware and feel guilty of the shameful practice
that they
indulged in . People should socially boycott them as to make them
realize their mistake. Their names should be published in the
newspapers
describing their shameful act in detail so as to make them feel
guilty
and realize their mistake.
Monetary
Compensation: Damages should be awarded to the victim in
terms
of money . It should be big money. It will recover the loss that
she
must have suffered and also will discourage men from involving in
eve
teasing.
Injunction: The court can also ask the eve teasers to strictly
abstain
from indulging in eve teasing in case of repeated acts of similar
kind.
Detention: The court could also arrest a person for eve teasing
under
article 57 , cpc . This would further discourage people from eve
teasing.
References
Vishakha V. State Of Rajasthan
This case saw the formulation of the sexual harassment of women at
workplace (prevention) bill drafted by the National Commission for
Women. It provides for some stern measures to curb the menace of
sexual
harassment of women at work place.
The bill which defines sexual harassment which includes any act of
verbal or gestural sexual advances , sexually explicit or
derogatory
remarks or statements , unwelcome sexually determined behaviour
such as
avoidable physical contact and advances , touching , patting ,
whistling , pinching, whistling , staring , sexually slanting and
obscene jokes , suggestive remarks , compromising invitation ,use
of
pornographic material , demand for sexual favours , threats ,
innuendoes
, physical assault and molestation.
Staring and simple comments on the physical appearance of your
female
colleagues can land you behind bars for as many as five years and
with a fine of Rs.20 000.
With the enactment of this act , there has been certainly a
decrease in
the number of sexual harassment. This act has proved itself to be
a
strong weapon in the hands of women to prevent sexual harassment
and
combat it.
Conclusion
Eve teasing is a wrong against the honour , dignity and self
respect of
a woman. It hurts her immensely. There is a strong need for
combating
this fast growing problem.
Hence , I strongly believe and hold that there is a immediate need
to
bring eve teasing as a separate head of liability under the Law of
Torts. There should be a provision for a strong punishment for eve
teasers.
At the end of it I would like to say only one thing that in a
country
like India where women are worshipped at par with the Gods , this
kind
of behaviour against women is unjust , unfair and Hippocratic. We
should
be respectful to women. Then only we would be on the lines of
happiness
, prosperity and success.
"Yatra
Naryantu Pujyante Tatra Ramyate Devtaa."
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The
author can be reached at: jk.nliu@legalserviceindia.com /
