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Introduction:
Sexual harassment and
rape are two sides of the same coin. Both showcase the power of man to dominate
that of women. Both have one victim- ‘women’. Both are barbaric in nature; but
many people extenuate sexual harassment to rape, just because the victims are
not physically harmed. Whereas in rape- the victim is ravished like an animal
for the fulfillment of desire and lust of another man. Both have the same
object- to undermine the integrity of the victim, physically as well as
mentally.
As
observed by Justice Arjit Pasayat:
" While a murderer destroys the physical frame of the victim, a rapist degrades
and defiles the soul of a helpless female."
Sexual harassment is nothing less than the showcasing of male dominance. Given
an opportunity, such men (those committing sexual harassement) would try
fulfilling their desire. However, it also not true that all cases of sexual
harassement are such- where the accused is guilty of conceiving the intention of
a sexual intercourse. But it also depends on each individual case and
circumstances, because it may well be the case that the woman may also be at
fault.
The
question is not whether women have the right to bodily integrity, as this right
is already adumbrated under Article.21 of the Constitution of India. Article.21,
which guarantees the right to life and liberty to men and women both alike- but
whether it is really imperative to take a decisive step towards extirpating this
evil and make the contemporary and future society a safe haven for women.
According to the official statistics of 1991, one woman is molested every 26
minutes. These statistics refer to the reported cases. Whereas, if the
unreported cases were to be included, it would be a matter of seconds- rather
than minutes. investigation of Most cases are not reported by victims because of
various reasons such as family pressures, the manner of the police, the
unreasonably long and unjust process and application of law; and the resulting
consequences thereof.
In
instances where women have reported such illegal and unwelcome behavior, there
have been significant victories in the past decade or so. Also considering the
fact the sometimes these victories are achieved after a wait of a decade or so.
In
Rupan Deol Bajaj Vs. K PS.Gill,
a senior IAS officer, Rupan Bajaj was slapped on the posterior by the then Chief
of Police, Punjab- Mr. K P S.Gill at a dinner party in July 1988. Rupan Bajaj
filed a suit against him, despite the public opinion that she was blowing it out
of proportion, along with the attempts by all the senior officials of the state
to suppress the matter.
The
Supreme Court in January, 1998 fined Mr.K P S.Gill Rs.2.5 lacs in lieu of three
months Rigorous Imprisonment under Sections. 294 and 509 of the Indian Penal
Code.
In
N Radhabai Vs. D. Ramchandran,
when Radhabai, Secretary to D Ramchandran, the then social minister for state
protested against his abuse of girls in the welfare institutions, he attempted
to molest her, which was followed by her dismissal. The
Supreme Court in 1995 passed the judgment in her favour, with back pay and perks
from the date of dismissal.
Vishaka’s case:
It
was in 1997 in Vishaka Vs. State of Rajasthan and others, that for the first
time sexual harassment had been explicitly- legally defined as an
unwelcome sexual gesture or behaviour whether directly or indirectly as
1.
Sexually coloured remarks
2.
Physical contact and advances
3.
Showing pornography
4.
A demand or request for sexual
favours
5.
Any other unwelcome physical,
verbal/non-verbal conduct being sexual in nature.
It
was in this landmark case that the sexual harassement was identified as a
separate illegal behaviour.The
critical factor in sexual harassement is the unwelcomeness of the behaviour.
Thereby making the impact of such actions on the recipient more relevant rather
than intent of the perpetrator- which is to be considered.
In
the abovementioned case, the judgment was delivered by J.S.Verma. CJ, on behalf
of Sujata Manohar and B.N.Kirpal, JJ., on a writ petition filed by ‘Vihska’- a
non Governmental organization working for gender equality by way of PIL seeking
enforcement of fundamental rights of working women under Article.21 of the
Constitution.
The
immediate cause for filing the petition was the alleged brutal gang rape of a
social worker of Rajasthan. The Supreme Court in absence of any enacted law
(which still remains absent- save the Supreme Court guidelines as stated
hereunder) to provide for effective enforcement of basic human rights of gender
equality and guarantee against sexual harassement, laid down the following
guidelines:
1.
All the employers in charge of
work place whether in the public or the private sector, should take appropriate
steps to prevent sexual harassement without prejudice to the generality of his
obligation, he should take the following steps:
a)
Express prohibition of sexual
harassment which includes physical contact and advances, a demand or
request for sexual favours, sexually coloured remarks, showing pornographic or
any other unwelcome physical, verbal/ non-verbal conduct of sexual nature should
be noticed, published and circulated in appropriate ways.
b) The rules and regulations of government and public
sector bodies relating to conduct and discipline should include rules prohibiting sexual
harassment and provide for appropriate penalties in such rules against the offender.
c)
As regards private employers, steps should
be taken to include the aforesaid prohibitions in the Standing Orders under the
Industrial Employment (Standing Orders) Act, 1946.
d)
Appropriate work conditions
should be provided in respect of work leisure, health, hygiene- to further
ensure that there is no hostile environment towards women and no woman should
have reasonable grounds to believe that she is disadvantaged in connection with
her employment.
2.
Where such conduct amounts to specific
offences under the
Indian Penal Code or any other law the
employer shall initiate appropriate action in accordance with the law, by making
a complaint with the appropriate authority.
3.
Victims of sexual harassment should have the
option to seek
transfer of the perpetrator or their own
transfer.
As
stated by the Supreme Court, these guidelines are applicable
to:
a)
The employer or other responsible persons or
other institutions to prevent sexual harassment and to provide procedures for
the resolution of complaints;
b)
Women who either draw a regular salary, receive an
honorarium, or work in a voluntary capacity- in the
government, private or organized sector come under the
purview of these guidelines.
Preventive Steps:
1. Express prohibition of sexual harassment should be notified and circulated.
2. Inclusion of prohibition of sexual harassment in the rules and regulations of
government and public sector.
3. Inclusion of prohibition of sexual harassment in the standing orders under
the Industrial Employment (Standing Orders) Act, 1946 by the private employers.
4. Provision should be made for appropriate work conditions for women.
Procedure
pertaining to filing of complaints:
1. Employers must provide a Complaints Committee which is to be headed by a
woman; of which half members should be women.
2. Complaints Committee should also include an NGO or other organization- which
is familiar with sexual harassment.
3. Complaints procedure should be time bound.
4. Confidentiality of the complaints procedure has to be maintained.
5. Complainant or witnesses should not be victimized Or discriminated against-
while dealing with complaints.
6. The Committee should make an annual report to the concerned Government
department and also inform of the action (if any) taken so far by them.
Miscellaneous
Provisions:
1.
Guidelines should be prominently notified to
create
awareness as regards the rights of the
female employees.
2.
The employers should assist the persons
affected, in
cases of sexual harassment by outsiders or
third parties.
3.
Sexual harassment should be discussed at
worker’s
meetings, employer-employee meetings and at
other appropriate forums.
4.
Both Central and State governments are
required to
adopt measures including legislations
to insure that private employers also observe these
guidelines.
A K.CHOPRA’S case:
A K.Chopra’s case, is
the first case in which the Supreme Court applied the law laid down in Vishaka’s
case
and upheld the dismissal of a superior officer of the Delhi based Apparel Export
Promotion Council who was found guilty of sexual harassment of a subordinate
female employee at the place of work on the ground that it violated her
fundamental right guaranteed by Article.21 of the Constitution.
In both cases the
Supreme Court observed, that " In cases involving Human Rights, the Courts
must be alive to the International Conventions and Instruments as far as
possible to give effect to the principles contained therein- such as the
Convention on the Eradication of All forms of Discrimination Against Women, 1979
[CE DAW] and the Beijing Declaration directing all state parties to take
appropriate measures to prevent such discrimination."
The guidelines and
judgments have identified sexual harassment as a question of power exerted by
the perpetrator on the victim. Therefore sexual harassment in addition to being
a violation of the right to safe working conditions, is also a violation of the
right to bodily integrity of the woman.
Provisions of the
Indian Pena Code:
In cases where the
accused sexually harasses or insults the modesty of a woman by way of either-
obscene acts or songs or- by means of words, gesture, or acts intended to insult
the modesty of a woman, he shall be punished under Sections.294 and 509
respectively.
Under Sec.294 the
obscene act or song must cause annoyance. Though annoyance is an important
ingredient of this offence, it being associated with the mental condition, has
often to be inferred from proved facts. However, another important ingredient of
this offence is that the obscene acts or songs must be committed or sung in or
near any public place.
Section.509 of IPC,
comes into effect when there is an intention to insult the modesty of any woman
by the offender by uttering any word, making any sound or gesture or by
exhibiting any object, with the intention that such word or such sound be heard,
or that such gesture or object be seen by such a woman, or by intruding upon the
privacy of such a woman.
Thus, this Section
requires:
1.
Intention to insult the modesty of a woman.
2.
The insult be caused by
i)
Uttering any word or gesture, or
ii)
Exhibiting any object with the intention
that such word, gesture, or object be hear or seen by such a woman, or
iii)
By intruding upon the privacy of such woman.
Rape laws in
India:
"The law of rape is not just a few sentences. It is a
whole book, which has clearly demarcated chapters and cannot be read
selectively. We cannot read the preamble and suddenly reach the last chapter and
claim to have understood and applied it."
-
Kiran Bedi., Joint
Commissioner, Special Branch.
In the Mathura rape
case,
wherein Mathura- a sixteen year old tribal girl was raped by two policemen in
the compound of Desai Ganj Police station in Chandrapur district of Maharashtra.
Her relatives, who
had come to register a complaint, were patiently waiting outside even as the
heinous act was being committed in the police station. When her relatives and
the assembled crowd threatened to burn down the police chowky, the two guilty
policemen, Ganpat and Tukaram, reluctantly agreed to file a panchnama.
The case came for
hearing on 1st June, 1974 in the sessions court. The judgment however
turned out to be in favour of the accused. Mathura was accused of being a liar.
It was stated that since she was ‘habituated to sexual intercourse’ her consent
was voluntary; under the circumstances only sexual intercourse could be proved
and not rape.
On appeal the Nagpur
bench of the Bombay High Court set aside the judgment of the Sessions Court, and
sentenced the accused namely Tukaram and Ganpat to one and five years of
rigorous imprisonment respectively. The Court held that passive submission due
to fear induced by serious threats could not be construed as consent or willing
sexual intercourse.
However, the Supreme
Court again acquitted the accused policemen. The Supreme Court held that Mathura
had raised no alarm; and also that there were no visible marks of injury on her
person thereby negating the struggle by her.
The Court in this
case failed to comprehend that a helpless resignation in the face of inevitable
compulsion or the passive giving in is no consent. However, the Criminal Law
Amendment Act, 1983 has made a statutory provision in the face of Section.114
(A) of the Evidence Act, which states that if the victim girl says that she did
no consent to the sexual intercourse, the Court shall presume that she did not
consent.
In
Mohd.Habib Vs
State,
the Delhi High Court allowed a rapist to go scot-free merely because there were
no marks of injury on his penis- which the High Court presumed was a indication
of no resistance. The most important facts such as the age of the victim (being
seven years) and that she had suffered a ruptured hymen and the bite marks on
her body were not considered by the High Court. Even the eye- witnesses who
witnessed this ghastly act, could not sway the High Court’s judgment.
Another classic
example of the judicial pronouncements in rape cases is the case of Bhanwari
Devi, wherein a judge remarked that the victim could not have been raped since
she was a dalit while the accused hailed from an upper caste- who would not
stoop to sexual relations with a dalit.
In another instance
of conscience stirring cases, Sakina- a poor sixteen year old girl from Kerala,
who was lured to Ernakulam with the promise of finding her a good job, where she
was sold and forced into prostitution. There for eighteen long months she was
held captive and raped by clients. Finally she was rescued by the police- acting
on a complaint filed by her neighbour.
With the help of her
parents and an Advocate, Sakina filed a suit in the High Court- giving the names
of the upper echelons of the bureaucracy and society of Kerala.
The suit was squashed
by the High Court, while observing that ‘ it is improbable to believe that a man
who desired sex on payment would go to a reluctant woman; and that the version
of the victim was not so sacrosanct as to be taken for granted.’
Whereas, in
State of
Punjab Vs. Gurmit Singh,
the Supreme Court has advised the lower judiciary, that even if the victim girl
is shown to be habituated to sex, the Court should not describe her to be of
loose character.
The Supreme
Court has in the case of State of Maharashtra Vs. Madhukar N. Mardikar,
held that "the unchastity of a woman does not make her
open to any and every person to violate her person as and when he wishes. She is
entitled to protect her person if there is an attempt to violate her person
against her wish. She is equally entitled to the protection of law. Therefore
merely because she is of easy virtue, her evidence cannot be thrown overboard."
Also the Bandit Queen
case,
which depicts the tragic story of a village girl. Phoolan Devi- who was exposed
from an early age to the lust and brutality of some men. She was married to a
man old enough to be her father. She was beaten and raped by him. She was later
thrown out of the village- accused of luring boys of the upper caste. She was
arrested by the police and subjected to indignation and humiliation. Was also
kidnapped and raped by the leader of dacoits and later by the leader of a gang
of Thakurs- who striped her naked and paraded her in front of the entire
village. This is truly one story that shows the apathy of the existing society.
In Chairman,
Railway
Board Vs. Chandrima Das,
a practicing Advocate of the Calcutta High Court filed a petition under
Article.226 of the Constitution of India against the various railway authorities
of the eastern railway claiming compensation for the victim (Smt. Hanufa Khatoon)-
a Bangladesh national- who was raped at the Howrah Station, by the railway
security men. The High Court awarded Rs.10 lacs as compensation.
An appeal was
preferred and it was contended by the state that:
a)
The railway was not liable to pay the
compensation to the
victim for she was a foreigner.
b)
That the remedy for compensation lies in the
domain of
private law and not public law. i.e. that
the victim should have approached the Civil Court for
seeking damages; and should have not come to the High Court
under Article.226.
Considering the
above said contentions, the Supreme Court observed:
"Where public functionaries are involved and the matter relates to the violation
of fundamental rights or the enforcement of public duties, the remedy would be
avoidable under public law. It was more so, when it was not a mere violation of
any ordinary right, but the violation of fundamental rights was involved- as the
petitioner was a victim of rape, which a violation of fundamental right of every
person guaranteed under Article.21 of the Constitution."
The Supreme Court
also held that the relief can be granted to the victim for two reasons- firstly,
on the ground of domestic jurisprudence based on the Constitutional provisions;
and secondly, on the ground of Human Rights Jurisprudence based on the Universal
Declaration of Human Rights, 1948 which has international recognition as the
‘Moral Code of Conduct’- adopted by the General Assembly of the United Nation.
After having studied
the case laws, it is necessary to also study the definition of Rape as given
in the Indian Penal Code, 1860. As per Section.375 of
IPC a man is said to commit the offence of rape with a woman under the following
six circumstances:
1.
Sexual intercourse against the victims will,
2.
Without the victims consent,
3.
With her consent, when her consent has been
obtained by putting her or any person that she may be interested in fear of
death or hurt,
4.
With her consent, when the man knows that he
is not her husband,
5.
With her consent, when at the time of giving
such consent she was intoxicated, or is suffering from unsoundness of mind and
does not understand the nature and consequences of that to which she gives
consent,
6.
With or without her consent when she is
under sixteen years of age.
Further explanation
provided to the section states that penetration is sufficient to constitute the
sexual intercourse necessary to constitute the offence of rape, whereas the
exception leaves out marital rape altogether if the wife is not under fifteen
years of age.
Marital
Exception:
In R Vs. R,
the House of Lords widened the scope of criminal liability by declaring that the
husband could be charged as a principal offender in the rape of his wife.
This decision seems
to have obliterated the protection of the husband from such prosecution under
the doctrine of marital exemption. This exemption was based upon the belief
under which the wife was regarded as the husbands’ chattel. She was supposed to
have given a general consent to her husband as a natural implication of the
marriage. This has now become an outdated view of marriage in England.
However, the above
decision of the House of Lords has not been followed in India- where marital
exemption to the husband ‘still exists’.
Section. 375
therefore requires:
a)
Sexual intercourse by a man with a woman;
b) The sexual intercourse must be under any of the six
circumstances given in the section.
Criminal Law
Amendment Act, 1983:
The Criminal Law
Amendment Act has substantially changed Sections.375 and 376 of the IPC. Several
new sections have been introduced therein- viz. Sections. 376(A), 376(B),
376(C), 376(D) of the IPC.
Section. 376(A)
punishes sexual intercourse with wife without her consent by a judicially
separated husband.
Section. 376(B)
punishes for sexual intercourse by a public servant with a woman in custody.
Section. 376(C)
punishes sexual intercourse by superintendent of jail, remand house, etc.
whereas,
Section. 376(D)
punishes sexual intercourse by any member of the management or staff of a
hospital with any woman in that hospital.
These new sections
have been introduced with a view to stop sexual abuse of women in custody, care
and control by various persons- which though not amounting to rape were
nevertheless considered highly reprehensible.
Attempt to Rape:
In cases where an
indecent assault is made upon the person of a woman, but where rape is not
committed- the culprit is charged with Section.354 of IPC, because unless the
Court is satisfied that there was determination in the accused to gratify his
passion at any cost, and inspite of all resistance, such person is not charged
with rape.
Section.354 of the
IPC prescribes punishment for anyone who assaults or uses criminal force to any
woman with an intent to outrage her modesty.
An indecent assault
upon a woman is punishable under this section. Rape is punished under
Section.376; but the offence under this Section is of less gravity than rape.
And also because a person who is guilty of attempting rape cannot be allowed to
escape with the lesser penalty of this section.
An indecent assault,
i.e., an assault which right minded persons would consider as indecent-
accordingly any evidence explaining the defendants conduct, or whether any
admission by him or otherwise is admissible to establish whether he intended to
commit an indecent assault, as is stated under Section.21 sub clause (2) of the
Evidence Act, which reads:
Section.21 (2): An
admission may be proved by or on behalf of the person making it, when it
consists of statements of the existence of any state of mind or body, relevant
or in issue, made at or about the time when such state of mind or body existed,
and is accompanied by conduct rendering its falsehood improbable.
Impediments to
Justice:
In the present
circumstances when offences against women are on the rise- when young girls are
raped by their doctors, by presidential guards in broad daylight, the definition
of rape to be of any deterrence- falls extremely inadequate. It does not address
forced penetration of objects and parts of the body into the vagina and anus;
and forced oral or anal intercourse.
It also does not
recognize other forms of sexual assaults- like protracted sexual assault by
relatives, marital rape etc. as aggravated forms of rape. This causes grave
injustice to many victims. In many cases of child rape, the child has been
penetrated through fingers or by objects or been force to perform oral or anal
sex; yet this is not considered rape by the Courts.
Adding to this is
Section. 155(4) of the Evidence Act, which allows the victim to be questioned of
her past sexual history- which the defense uses to humiliate the victim in the
Courtroom.
One of the major
obstacles in delivering justice in rape cases is the poor quality of
investigations. The reason behind this ranges from gender bias and corruption to
the general inefficiency of the police. In many cases the police have even
refused to lodge the FIR or have lodged incomplete FIR.
The victims are not
taken for prompt medical examination, because in cases of rape, or attempt to
rape- medical examination of the victim and of the accused soon after the
incident often yields a wealth of corroborative evidence. Therefore, such an
opportunity should not be lost by the police.
The manner in which
some courts have interpreted the law or assessed the evidence has often proved
to be an obstacle also. Inspite of Supreme Court judgments to the contrary,
lower court judges often insist on evidence of physical resistance or marks of
injuries to hold that a woman has not consented. A woman’s evidence without
corroboration is not considered sufficient.
The long time that is
taken to complete a rape trial often by allowing senseless adjournments; and the
giving of evidence by the victim in the presence of the accused and the harsh
cross examination in the Court are some other major obstacles.
As observed by
Krishna Iyer, J. in Rafique’s case:
"When a
woman is ravished, what is inflicted is not mere physical injury but the deep
sense of some deathless shame… judicial response to Human Rights cannot be
blunted by legal bigotry."
Therefore rape laws
in order to be of great deterrence, must have a cooperative victim, professional
investigation, diligent prosecution; and an expeditious trial. For otherwise it
shall not be the law, that fails, but the applicants, the process and
application.
Failure of law
reflects the failure of the society to protect and serve humanity.
In view of the above,
the Supreme Court has laid down the following guidelines for the trial of rape
cases:
1.The complaints of
sexual assault cases should be provided with legal representation. Such a person
should be well acquainted. The Advocates role should not merely be of explaining
to the victim the nature of the proceedings, to prepare for the case and assist
her, but to provide her with guidance as to how she might obtain help of a
different nature from other agencies- for e.g. psychiatric consultation or
medical assistance.
2. Legal assistance
should be provided at the police Station, since the victim may be in a
distressed state. Guidance and support of a lawyer at this stage would be of
great help.
3. The police should
be under a duty to inform the victim of her right to a counsel before being
interrogated.
4. A list of lawyers
willing to act in these cases should be kept at the police station.
5. Advocates shall be
appointed by the Court on an application by the police at the earliest, but in
order that the victim is not questioned without one, the Advocate shall be
authorized to act at the police Station before leave of the Court is sought or
obtained.
6. In all rape
trials, anonymity of the victim must be maintained
7. It is necessary to
setup Criminal Injuries Compensation Board with regard to the Directive
Principles contained under Article. 38(1) of the Constitution of India. As some
victims also incur Substantial losses.
8. Compensation for
the victims shall be awarded by the Court on the conviction of the offender and
by the Criminal Injuries Compensation Board- whether or not a conviction has
taken place. The Board will take into account pain, suffering, shock as well as
loss of earnings due to pregnancy and child birth if this accrued as a result of
rape.
The National
Commission for Women be asked to frame schemes for compensation and
rehabilitation to ensure justice to the victims of such crimes.
As observed by
Justice Saghir Ahmad, "Unfortunately a woman in our country belongs to
a class or group of society who are in an disadvantaged position on account of
several social barriers and impediments and have therefore, been victims of
tyranny at the hands of men with whom they, unfortunately, under the
Constitution enjoy equal status."
Conclusion:
The courts and the
legislature have to make many changes if the laws of rape are to be any
deterrence. The sentence of punishment, which normally ranges from one to ten
years, where on an average most convicts get away with three to four years of
rigorous imprisonment with a very small fine; and in some cases, where the
accused is resourceful or influential- may even expiate by paying huge amounts
of money and get exculpated. The courts have to comprehend the fact that these
conscienceless criminals- who sometimes even beat and torture their victims- who
even include small children, are not going to be deterred or ennobled by such a
small time of imprisonment. Therefore, in the best interest of justice and the
society, these criminals should be sentenced to life imprisonment.
However, if they
truly have realized their mistake and wish to return to society, the Court and
jail authorities may leave such men on parole; but only after they have served a
minimum of half the sentence imposed on them.
It is outright clear
that sexual offences are to be excoriated, but if death sentence is given to
such convicts- so as to deter the rest, then no doubt that the graph of rape
cases will come down considerably- but it may also happen that those who commit
such offences- simply to leave no witnesses or evidence, may even kill their
victims and dispose off their bodies (whereas it is observed that in most cases-
it is the victim who is the only source of evidence in most cases), thereby
frustrating the main object of the Indian Penal Code and the legislature.
Studying the laws,
the process, the application of those laws, one thing is certain- the entire
structure of justice needs an over haul, otherwise the victim shall no longer
the woman, but humanity.
******************
Endnotes
|
"Sexual
Harassment and Rape Laws in India"
More
Articles:
The
author can be reached at: dhruv_d_desai@rediffmail.com /
