Misuse of sexual harassment laws in India

Raghavi Viswanath

The Indian judiciary has seen a decelerated evolution with regards to sexual harassment laws. This article seeks to highlight and analyze the various flaws in the legal apparatus to deal with sexual harassment as it exists today.

One of the most dubious provisions is Section 498-A of the Indian Penal Code. While the provision has been created to protect women from marital violence, the arbitrariness that it confers upon the police authorities as well as the women who allege domestic violence has been received with opprobrium and accused of fostering misogyny. Domestic violence under Section 498-A is a cognizable, non-bailable and non-compoundable offence. Such an arrangement lets no room for out-of-court settlements. The petitioners do not have the option of revoking the charges. Complaints filed under this Section also warrant immediate arrests of the husband and the family members where necessary. A necessary implication of the non-bailable nature of the offence is the bleak possibility of the marital relationship being restored. The impact of these consequences is manifold because the charges are irrevocable. Statistics show that in the period of 2011-2012, there was a 9.4% increase in the number of cases registered under Section 498A ((SauravDatta, What Powers the “Section 498-A misuse” bandwagon?, 5 July, 2014, available at http://www.dnaindia.com/india/standpoint-what-powers-the-section-498a-misuse-bandwagon-1999791, accessed on 24th January,2015)). However, its counter-narrative lies in the fact that the conviction rate is a miserly figure of 15% ((ibid)).

Suggestions have been made to amend the provision that has oft-been termed diabolic. The Malimath Committee on Criminal reforms (2003) suggested that the offence under Section 498-A be made compoundable and bailable. This view was reiterated in the 243rd Law Commission Report. Justice CK Prasad in his judgment in the case of Arnesh Kumar v State of Bihar ((SLP (CRL.) No.9127 of 2013))also highlighted the pressing need to balance the interests of the woman as well the stability of the family.

Another legal breakthrough is the Sexual Harassment of Women at Workplace Act, 2013 that was enacted after more than a decade of deliberation and re-examination. The landmark judgment of the Court in the Vishakha case was accompanied by a set of guidelines, in lieu of India’s international and constitutional commitments( such as the Convention on Elimination of All forms of Discrimination Against  Women and the right to safe work environment and right to freely practice one’s profession enshrined in Articles 19(1)(g), 15(3), 21 and 14).The Act , in the backdrop of the Court’s decision in the MedhaKotwal case and the Vishakha case, laid down a framework for investigation of complaints of sexual harassment . The mandatory nature of the Act can be attributed to the prescribed punishment for non-compliance. It not only protected the female employees, but any woman, whether employee or not, who was sexually assaulted within the premises of workplace as defined in Section 2(o) of the Act.

The Act has been touted to be the torchbearer of feminist legislation for several reasons, Firstly, the Act is not gender neutral and men are barred from filing similar complaints. The employer is also held liable for sexual harassment in places like taxis, hotels and also the offices of clients, where the employer hardly has any authority or control ((Available at http://www.avoiceformen.com/feminism/feminist-governance-feminism/indias-new-sexual-harassment-at-workplace-law/, accessed on 24th January,2015)). The investigation Committees such as the Internal Complaints Committee and the Local Complaints Committee have powers equivalent to a civil Court as enumerated in Section11.  However, the members of such Committees need not have any legal backing. The ambiguity of such criteria is heightened in the case of the Local Complaints Committee where the Presiding Officer should be ‘committed to the cause of women’( used in Section 4 and Section 7 of the Act), a subjective standard that can be neither justified nor disproved. Moreover, the inclusion of such a criterion suggests pre-conceived gender biases and this violates the general standards of impartiality.

The Act does not fall within the domain of the Right to Information Act. Therefore, details of false complaints or fabricated cases will not be available. As per Section 15 of the Act, action will be taken for false complaints. However, if the complaint is not substantiated, then the woman will be provided complete immunity. Furthermore, the identity of the woman will be kept confidential even in cases of false complaints. The compensation prescribed under the Act eschews the principle of equality before the law as it is awarded progressively, proportionate to the income earned by the respondent.

The draconian character of the legislation has drawn the attention of several authorities. The Central Administrative Tribunal, in a bench comprising of Judges KB Suresh and PK Pradhan, adjudicating upon cases of sexual harassment at the workplace, characterized Section 4 and 7 of the Act as ‘unconstitutional’ ((Krishnaprasad, CAT finds illegality in law against sexual harassment at workplace, The Hindu, 13 July, 2014, available at http://www.thehindu.com/news/national/karnataka/cat-finds-illegality-in-law-against-sexual-harassment-at-workplace/article6204747.ece, accessed on 24th January, 2015)). The Bench held that the legislation was ‘double-edged’ and the Vishakha Committees found sufficient leeway for manipulation. The fear of punishment compelled even the higher echelons of authorities to dismiss their employees even before adjudicating the merits of the complaint.

On the flipside, the existing framework has been misused to impede justice to the female victims in most situations. Marital rape, in India, continues to be a standing example of such travesty of justice. Sexual assault by one’s spouse accounts for approximately 25% of rapes committed ((Priyanka Rath,  Marital Rape and the Indian legal scenario, India Law Journal, Available at http://www.indialawjournal.com/volume2/issue_2/article_by_priyanka.html, accessed on 24th January, 2015)).

With the case of R v R (([1994] 4 All ER 481 [HL])), the English Courts widened the ambit of sexual harassment by recognizing marital rape. This judgment negated the oft-believed concept that marriage leads to natural implication of consent of the wife to sexual intercourse.  However, marital rape still eludes the Indian legal framework.  The root cause of this problem lies in the archaic construction of the statutory provisions pertaining to rape, namely Section 375 and Section 376 of the Indian Penal Code, both of which explicitly exclude sexual assault on the wife. The law further discriminates between marital bonds and prescribes punishment for marital rape only if the wife is under 16 years if age beyond which she has no remedy. Furthermore, since according to Section 122 of the Evidence Act, the communication between a husband and a wife cannot be treated as evidence unless for a persecuted offence, law does not allow any evidence for corroboration of marital rape.

While the 172nd Law Commission report did suggest changes to broaden the scope for justice by deleting Section 376 A, the victim suffers a ‘second rape’ in the hands of the law itself. The procedural laws are also used against the interests of the victim to stifle her. One of these defenses is Section 155(4) of the Evidence Act under which the victim can be questioned about her past. The element of physical evidence to prove lack of consent has deterred several victims, especially in the lower Courts. As India matures as a democracy, it is imperative not only for laws to be enacted, but adequate safeguards to prevent their abuse so that the best interests of the victim are promoted.

Breaking: Every breach of promise to marry is not rape

Bombay High Court while hearing an application for anticipatory bail ruled that every breach of promise to marry is not rape and pre-marital sex between couples is no longer shocking in India’s big cities. Being a society in transition, it could be treated as one of the most significant verdict.

Complainant claimed that, she was pregnant with accused’s child, claimed that, despite promising to marry her, he had married another girl. Accused claimed the relationship was consensual, and they could not marry as they belonged to different religions. However, Court observed that, “Nowadays keeping (a) sexual relationship while having an affair or before marriage is not shocking as it was earlier. A couple may decide to experience sex. Today especially in metros like Mumbai and Pune, society is becoming more and more permissive.

Court further noted that, “unlike western countries, we have social taboo and are hesitant to accept free sexual relationship between unmarried couples or youngsters as their basic biological need; the court cannot be oblivious to a fact of changing behavioural norms and patterns between man and woman relationship in society.” Court opined that, “a major and educated girl was expected to know the demands of her body and the consequences of sexual relationships, and in a case it would have to be tested independently if her decision to have sex with a man was a conscious one or not?”

Court further said that, “today the law acknowledges live-in relationship(s). The law also acknowledges a woman’s right to have sex, a woman’s right to be a mother or a woman’s right to say no to motherhood. Thus, having sexual relationship with a man whether is her conscious decision or not is to be tested independently depending on the facts and circumstances of each and every case and no straightjacket formula or any kind of labelling can be adopted.

Court said that, “a couple in love may be having sexual relationship and realize they are not compatible, and sometimes love between the parties is lost and their relationship dries gradually, then earlier physical contacts cannot be said as rape. A marriage cannot be imposed.” The court also pointed out that a couple may fall out of love and questioned if the physical relationship they had before could be termed as rape. However, Court opined that, if “an uneducated poor girl is being induced into a sexual relationship after promise of marriage or a man suppressing his first marriage to have sexual relations with a girl, then such an act will amount to rape under Section 376 of the Indian Penal Code.

While granting anticipatory bail to the accused, Court opined that, “the Complainant is an educated girl and it shows it was her conscious decision to keep sexual relations. Prima facie at this stage, possibility of non-committal, consensual relationship cannot be denied.” However, Court pointed that, in case the complainant chooses to have the baby, she could adopt legal proceedings against the accused to secure the child’s rights.

Where did the Delhi High Court go wrong?

As the saying goes, “It is better to risk saving a guilty person than to condemn an innocent one

Sandeep Menon Nandakumar ((B.A.LL.B. (Hons.) (NUALS), LLM (CUSAT), LLM (Exeter, UK); Assistant Professor (Sr.), VIT Law School, Chennai)).

The recent Delhi High Court judgment in Achay Lal v. State Govt of NCT of Delhi (2014) has created a lot of debate and discussions. Most of the negative comments on the judgment are a result of the improper analysis of the same or in other words, due to the erroneous reporting of the judgement done by some reporting websites. The main issue in this case is evident from the initial discussions in the judgment which states that “it has to be ascertained whether the deceased died a natural death or a homicidal death and whether “forcible” sexual intercourse was committed with her or not”. The Hon’ble High Court held that “at best the appellant could have committed forceful intercourse but the same was not forcible and contrary to the wishes of the deceased and hence entitled for an acquittal”.

The main reason for much of the debate and discussions was not because the accused was acquitted but due to the observation of the court that “as regards the offence punishable under S.376 IPC the deceased was aged around 65-70 years, thus beyond the age of ‘menopause’. What relevance this has to do with the judgment or reasons for the judgment (ratio decidendi) is unclear. The main reason for the judgment was itself made clear by the Division Bench holding that even if the sexual intercourse was ‘forceful’ it was not ‘forcible’ and contrary to the wishes and consent of the deceased. This being the reason for the judgment, there is no relevance in the observation made by the judges regarding the fact that the victim has crossed the age of menopause.

Before we proceed further, let me state that the informal decision of the Supreme Court to keep all the judgments short from now on is a welcoming move. As regards how much the same is binding on all other courts in the territory of India is unknown, but a judgment like the one that the Delhi H.C. has made in the instant case clearly matches with the informal decision of the S.C.

And this is precisely where one can see the shortcomings of the judgment. This judgment is too short and is devoid of adequate reasons. The Report of the Committee on Amendments to Criminal Law (Justice Verma Commission) has specifically concluded that the offences such as rape and sexual assault are not merely crimes of passion but an expression of power. The reason for stating this is because this was a case involving a question of rape and murder and the H.C. should have taken a bit more effort to clarify the terms and statements used in the judgment. Ratherit seems that the court concluded everything by making three to four random observations without any sort of explanations leaving it to the reader to come to inconsistent conclusions. This is a case where the victim is dead and sadly she is no more to depose whether she has consented to the act or not. The court appreciates the circumstantial evidence and comes to the conclusion that “the forceful penetration is evident from the injuries on the vaginal orifices. However, besides the injuries on the vagina there is no other injury mark on the body of the deceased or on the appellant to show that there was any protest by the deceased… Hence it has not been proved beyond any reasonable doubt that the appellant committed sexual intercourse with the deceased contrary to her wishes or her consent”. The court here completely seems to forget the fact that the proviso to section 375 IPC specifically states that the fact that the woman does not physically resist to the act of penetration alone should not be construed as an act of consenting to the sexual activity. One amongst many criticisms levelled against the judgment in Mathura rape case has been remedied by the later amendments to IPC but this court seems to reiterate what has happened in Mathura rape case. Moreover there have been several case laws (Guddu v. State of M.P., (2007) 14 SCC 654) where even the fact such as the redness of the hymen was considered to be sufficient to constitute the offence of rape.

The court in this case concluded that the victim had consumed alcohol along with the accused though it had been answered in the negative by the deceased’s husband during trial. Even if it was a case of voluntary intoxication the court should have noted that it vitiates the consent as required under Section 375 IPC. It is of common knowledge that the consent under Section 375 IPC means voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent.  It being so, the H.C. should have at least kept in mind that sexual intercourse under influence of drink cannot be said to be intercourse with consent.

The court has relied on circumstantial evidence in the instant case which according to the court goes in favour of the accused. It is indeed shocking to see that the court is not even bothered to find out the truth of a situation wherein the victim was lying dead and naked on the floor, her shirt upto her neck with a blanket on some part of her body and the accusedwho was in an intoxicated condition who was inside the room prevented people (who went to the scene of crime after hearing the news) from entering the room saying that the victim was like his “mother” and had not died and was sleeping after taking liquor. The court seems to agree that with the same person who was addressed as mother the accused had “forceful” sex but not “forcible” sex and hence the act does not amount to rape. The court is clear in acquitting the accused under Section 302 IPC as the requisite intention required as per the section is not made out. But at any rate the court had the responsibility to explain what they meant by “forceful” and “forcible” and how different these concepts are from each other with special reference to Section 376 IPC.

One could see that as a result of this judgment, the victim (who was married) who had already lost her life is depicted as a woman who consented to forceful sexual intercourse with a person other than her husband, the terms ‘forceful’ and ‘forcible’ still unclear from the judgment.