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.

Restraint on Discretionary Power of Arrest Possessed by Police

Prachi Kumari, Student, Law School, BHU, Varanasi

Demo_arrest,_handcuffedHonourable Supreme Court in recent judgment of Arnesh Kumar V State of Bihar and Ors. (({Criminal Appeal No.-1217 0f 2014 and Special Leave Petition(CRL.) No.-9127 of 2013 (Supreme Court, 02/07/2014)})), expressed its view that police has not come out of its colonial image despite six decades of independence; it is largely considered as a tool of harassment, oppression and surely not considered a friend of public.

Therefore, the apex court restrained police from mechanically arresting the husband and his relatives on mere lodging of a complaint under section-498A of the Indian Penal Code, 1860. Now, the Police are required to satisfy the necessity for arrest under the parameters provided under Section 41 of the Code of Criminal Procedure, 1973.

Although, Section 41 of the Code of Criminal Procedure, 1973 contains element of discretion for a Police officer making arrest by incorporating the words ‘reason to believe’ or ‘satisfaction’ etc., mechanical arrest of persons against whom complaint is made, has been in practice in India. That is why, Chandramauli Kr. Prasad, J. moved to reiterate the relevance of section-41 of the Code of Criminal Procedure, 1973.

The abovementioned view of Supreme Court shows that police has earned negative fame only and discretionary power of arrest possessed by the police has often been misused or abused.

The recent judgment is an effort to prevent the abuse and misuse of power of arrest possessed by police. The guidelines given in this case read with guidelines given in previous cases like Joginder Kumar V State of U.P. ((AIR 1994 SC 1349)),Smt. Nandini Satpaty V P.L. Dani ((AIR 1978 SC))and D.K. Basu v. State of West Bengal ((AIR 1997 SC 610))may emerge as a tool of controlling police discretion, because it specifies what an officer must do and must not do in certain situations. It also specifies where an officer must properly exercise discretion.

However, I am of the view that discretionary power of police should not be restrained. Since it is not possible to cover every situation; police may fall in while discharging duty, in a rule book, there must be element of discretion in the powers given to police.

Common tendency of every society is to blame police for every wrong. While blaming the entire police community, why do we forget that police have done some great job for the country as well and have sacrificed their lives for our safety, be it terrorist attack on parliament or terrorist attack in Mumbai. They are the soft target groups for Naxalists or any other anti-social group. They are receiving low salary for hard work. They have to act like puppet in the hands of some influential political leaders, but their voice is not raised at national level since police service is under control of state Governments.

At this juncture, if police is left with no discretion, their condition would be more pathetic. Besides this, we will get robots in the place of human beings. This profession is already losing its charm; restraint on discretionary powers would forbid talented and skilled persons from joining this profession. Undoubtedly, some restrictions are required to prevent arbitrary use of power, but restrictions on discretionary power of arrest possessed by police should be imposed with care and other facilities should also be given to police. Restrictions are not the way to improve the colonial image of police.