Women Laws in India- Rape & Sexual Harassment (IPC) with special reference to POSCO & POSH

This present article has been written by Pritha Bhowmik during her internship in LeDroit India.

In 1992, Bhanwari Devi, a Dalit woman who was a social worker employed with the agricultural Development Programme of the govt. of Rajasthan was gang raped. This highlighted the extents of sexual harassment incidents in India’s workplaces. It struck a chord with the State and revealed the hazards working women face within the workplace. The Supreme Court framed guidelines and issued directions to the Union of India for a law to combat workplace harassment, which is popularly known as ‘Vishakha Guidelines’.

In Indian legal code, the harassment of females has not been vocalized as a juridical category of crime. It was only during 1997 that, within the domain of juridical interpretation, the term ‘sexual harassment’ of women was named and defined (See Vishakha and Anr v. Union Of India 1997). This doesn’t infer that there are not enough related laws in the Indian Penal Code which will be evoked when a lady is sexually harassed. However, these related laws have gained their momentum only after the aforementioned case.

Eve-teasing also comes under the purview of sexual harassment. While legal definitions of ‘sexual harassment’ make references to crimes that outrage the modesty or insult women, in many Indian states the category of eve teasing of women also finds a sought-after usage. Eve teasing is a euphemism used for sexual harassment in public or sexual abuse of women by men. The name “Eve” alludes to the Bible‘s creation story concerning Adam and Eve. It is considered as an enigma associated with a default or failure in youth; it’s a sort of sexual aggression that ranges in severity from sexually suggestive remarks, brushing publicly and catcalls, to groping.

The problem of eve-teasing first received public and media attention in the 1970s. In the following decades, more and more women started attending college and working independently, meaning that they were often no longer accompanied by a male custodian as had been the norm in traditional society. In response, the problem grew to alarming proportions, despite this not being the case in other cultures where women go and come as they please. Soon the Indian government had to take remedial measures, both judicial and law enforcement, to curb the practice. Efforts were made to sensitize the police about the problem, and police began to follow a strict vigilance against the Eve teasers. The disposition of plain-clothed female police officers with the determination of curbing this issue has been exceptionally effective. Other measures taken in various states by the police were setting up of dedicated women’s help lines in various cities, police stations staffed by women, and special police cells.

It was also seen that this era faced a marked rise within the number of women coming forward to report cases of harassment, thanks to the changing public opinion against this practice. In addition, the severity of those incidents also grew, in some cases resulting in acid throwing, which successively led to states like Tamil Nadu making it a non-bailable offense. The number of women’s organisations and those working for women’s rights also increased, and during this period reports of bride burning increased. The increase within the number of violent incidents involving women were unreported because of the lesser social security and there is a strict necessity for the women’s rights to be revised and to be supported by law. Since the early 80s, certain organizations played a key role in lobbying for the passing of legislation designed to protect women from aggressive behaviour from strangers, including ‘The Delhi Prohibition of Eve-teasing Bill 1984’.

The death of a female student, Sarika Shah, in Chennai in 1998, emanated in some tough laws to retaliate the matter in South-India. After murder charges were brought, about a half a dozen reports of suicide have been attributed to pressures caused by this behaviour. In February 2009, female students from Maharaja Sayajirao University (MSU) in Vadodara assaulted four young men near the family and community sciences faculty, after the lads made lewd comments on a female student staying in SD Hall hostel.

Women Laws in India:

Rightly did Swami Vivekanand say, ‘Just as a bird can’t fly with one wing only, a Nation can’t march forward if the women are left behind’. Strength is borne of their union and their separation results in weakness. Each has what the other does not have. Each completes the other, and is completed by other. Lexicology, the word ‘woman’ means – half of man. Therefore the women ought to be respected.

  • Protection of Children from Sexual Offences (POCSO) Act, 2012:

It’s not just women, but even children are no safer from the sexual harassments. In order to constructively address the abominable crimes of sexual assault and sexual exploitation of youngsters through less enigmatic and more rigid legal provisions, the Ministry of Women and Child Development advocated the making of the legislation, that is, Protection of Children from Sexual Offences (POCSO) Act, 2012.

The Act has been ratified to safeguard children from offences like sexual assault, harassment, filming of non-consensual pornography and also provides for establishment of Special Courts for trial of such offences and related matters and incidents.

The Act was amended in 2019 in order to make provisions for intensification of punishments for various offences so as to daunt the evil-doers and guarantee safety, security and dignified childhood for a child.

Salient features of the Act and its amendment

  • The Act is androgynous and regards the best interests and welfare of the child as a matter of its utmost importance at every stage so as to ensure the every aspects of the child.
  • The Act limits a child as any person below the age of eighteen years.
  • It defines different types of sexual abuse, as well as sexual harassment and pornography, and considers a sexual assault to be “bothered” under certain circumstances, such as when child who is abused is mentally ill or when the abuse is committed by a person in a position of confidence or custody, like a family member, police officer, lawyer, teacher, or doctor.
  • People who trade children for sexual occasions are also punishable under the provisions concerning as to abetment in the Act. The Act prescribes rigorous punishment classified as per the intensity of the offence, with a maximum term of rigorous imprisonment for life, and fine.
  • It defines “child pornography” as any perceptible portrayal of sexually explicit conduct involving a child that include photograph, video, digital or computer spawn image identical to an actual child, or any image created, or modified appearing to depict a child.

Punishments for Offences covered in the Act

OFFENCESSECTIONSPUNISHMENTS
1. Penetrative Sexual AssaultSection 3 and Section 4Not less than ten years which may extend to imprisonment for life, and fine
2. Aggravated Penetrative Sexual AssaultSection 5 and Section 6Not less than twenty years which may extend to imprisonment for life, and fine
3. Sexual AssaultSection 7 and Section 8Not less than three years which may extend to five years, and fine
4. Aggravated Sexual Assault by a person in authoritySection 9 and Section 10Not less than five years which may extend to seven years, and fine
5. Sexual Harassment of the ChildSection 11 and Section 12Three years and fine
6. Use of Child for Pornographic Purposes Not less than 10 years (in case of child below 16 years, not less than 20 years)  
7. Use of child for pornographic purposes resulting in aggravated penetrative sexual assault Not less than 20 years and fine  
8. Use of child for pornographic purposes resulting in sexual assault Not less than three years which may extend up to five years  
9. Use of child for pornographic purposes resulting in aggravated sexual assault Not less than five years which may extend to seven years  
10. Any person, who stores or possesses pornographic material in any form involving a child, but fails to delete or destroy or report the same to the designated authority, as may be prescribed, with an intention to share or transmit child pornography Fine of not less than Rs 5,000; in the event of second of subsequent offence, fine not less than Rs 10,000.  
11. Any person, who stores or possesses pornographic material in any form involving a child for transmitting or propagating or displaying or distributing in any manner at any time except for the purpose of reporting, as may be prescribed, or for use as evidence in court, shall be punished with imprisonment of either description Up to three years of imprisonment, or with fine, or both.  
12. Any person, who stores or possesses pornographic material in any form involving a child for commercial purpose shall be punished on the first conviction Not less than three years of imprisonment which may extend to five years; or with fine or with both. Second or subsequent conviction: not less than five years and up to seven years and also fine.  
  • The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”)

The Act recognizes that getting sexually harassed amounts a violation of fundamental rights of women and their right to life and to live with dignity and carry on any profession, trade, or business in an environment as stated under section 21 of the Constitution of India.. POSH Law influences all of India and is gender specific — it only protects women. A man who faces any sexual harassment at the workplace is not accredited to implore POSH Law, rather he must reckon on company policies that restricts harassment of any form. However, many organizations have opted to make their POSH policy gender neutral in order to certify an equal representation of the employees. POSH Law applies to both regulated and non-regulated sectors.

Salient features of the Act and its amendment

  • The Act describes “sexual harassment” extensively and includes the emerging unsolicited acts:
    a) Physical contact and palpation;

b) A demand or request for sexual servitudes;

c) Making sexually colored comments;

d) Showing of pornography; or,

e) Any other uninvited physical, verbal, or non-verbal conduct of any sexual nature.

  • The Act also states that the following circumstances (whether stated or unstated), inter alia, may constitute sexual harassment:
  • Promise of advantageous treatment in employment;
  • Warning or ultimatum of hurtful treatment in employment;
  • Warning about present or future employment;
  • Creating an threatening or derogatory or aggressive work environment; and,
  • Disgracing treatment possibly harming health or safety.
  • The Act establishes the notion of an “extended workplace.” In incorporation to the office of the employer or employee, any place visited by the employee originating from or in the course of employment, including conveyance provided by the employer for the purpose of mitigating to and from the place of employment, will also comprise to be a workplace. 
  • The Act describes an “aggrieved woman” as a woman of any age, whether employed or not, who has been exposed to sexual harassment.
  • POSH Law mandates every employer to:
  • Provide a safe working environment, which shall include safety from persons coming to the workplace;
  • Display the penal consequences of workplace sexual harassment, and the order constituting the IC, at any conspicuous place at the workplace;
  • Conduct training programs to create awareness and sensitization among employees at all levels (i.e., managers and non-managers);
  • Conduct orientation programs for the members of the IC;
  • Provide necessary facilities for the members of the IC and assist in any manner required to enable the aggrieved woman to secure justice under the IPC; and,
  • Monitor the timely submission of the reports by the IC and assist in any manner required to enable the aggrieved woman to secure justice under the IPC.
  • It also mandates  for  the employer to exhibit for the following under the Rules:
    a) Publish the POSH Law related policies over the company intranet and/or services rules, which shall include the contact details and names of the IC members;
  • Carry out capacity building and skills development programs for IC members; and,
  • Use modules published by the state governments to sow the seeds of awareness amongst employees and may involve associations with urban local bodies to nurture colloquy on sexual harassment, including its prevention, prohibition, and redressal.
  • Failure to comply with the provisions under the POSH Law will cause:
  • When the employer fails to constitute an Internal Committee or breaches provisions of this Act or any rules made there under, they shall be punishable with fine of fifty thousand rupees (INR 50,000).
  • If any employer, after having been previously convicted of an offence punishable under this Act, subsequently commits and is convicted of the same offense, he shall be liable to twice the punishment.
  • Extended penalties shall be:
  • Cancellation or withdrawal of his license.
  • Non- renewal, or cancellation of the registration.

Conclusion:

Despite decades of attention, legal action, and advocacy, this analysis of data, research, and experience shows that sexual harassment remains a serious and pervasive problem across virtually all industry sectors and workplaces. We found that no sector remains untouched by sexual harassment, nor unaltered by its aftermath. Sexual harassment damages the lives, health, financial sustainability, and opportunities of innumerable victims, and costs businesses not only in legal costs, but in lost efficiency, morale, efficacy, and aptitude.

Sexual harassment is about the interplay of power and gender present in every sector of the economy at virtually every level. While the data clearly shows that across all sectors, women of lower status are the most common targets of sexual harassment by perpetrators who are typically men of higher status, sexual harassment is by no means limited to this dynamic. Men, particularly those who don’t conform to traditional masculine norms, and others seen as outsiders, like LGBTQ and gender nonconforming people, are often targets and women can be harassers. A sexually harassing culture can become so normalized that nobody recognizes it, or doesn’t object thereto for fear of being labeled a rabble-rouser and losing employment or reputation in the workplace. And harassment can come laterally, from colleagues, or from third parties like clients, customers, or patients.

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