In a move to protect women in the light of the #MeToo movement, the state government seeks to define and criminalise sexual harassment through amendments to a host of legislation
By Pushp Saraf
Stung into action by the #MeToo discourse, the J&K government has done something truly remarkable. It has gone one up on the Indian Penal Code (IPC), the criminal code applicable to the rest of the country, by seeking to legally define “sextortion”, in a bold search for a remedy to the menace of sexual harassment at work.
According to J&K’s Law Department, “any person being in a position of authority or a fiduciary relationship, or a public servant, who abuses such position or fiduciary relationship to employ physical or non-physical form of coercion to extort, request, or demand sexual favours from any woman in exchange of some benefits or favours that such person is empowered to grant or withhold” shall be guilty of sextortion.
The IPC does not define sextortion, although it is the foundation on which the Ranbir Penal Code (RPC), the criminal code applicable to J&K, is based. Arguments that the IPC be amended to include a clear description of this evil have been heard off and on, in the wake of the #MeToo wave. A clear definition facilitates thinking, understanding and communication, which is helpful in the evaluation of a law.
The Law Department has invested sextortion with words and meaning in one of the two draft Bills that it has released in the public domain for eliciting views. Both the Bills propose amendments to plug the loopholes, which the #MeToo wave has exposed in the RPC, the Code of Criminal Procedure (CrPC), the Evidence Act and the Prevention of Corruption Act.
The Criminal Laws (Amendment) Bill, 2018, seeks to introduce a new Section 354E in the RPC. Besides explaining sextortion, the new section provides for “rigorous imprisonment for a term which shall not be less than three years but may extend to five years and with fine” on a person found guilty of this crime. It defines “sexual favour” as “any kind of unwanted sexual activity ranging from sexually suggestive conduct, sexually explicit actions such as touching, exposure of private body parts to sexual intercourse including exposure over the electronic mode of communication”. It categorically asserts that: “It shall be no defence that sexual favour was derived with the consent of the victim.” The definition of rape has also been widened in the present law to leave little doubt that the act will amount to rape even if a woman consents “in exchange for exercising or misusing authority”.
Sexual favours, as elaborated in Section 354E, have also been addressed in the other proposed legislation—the Prevention of Corruption (Amendment) Bill, 2018—which seeks to make a public servant who demands or requests sexual favours liable for “misconduct”, and punish him with imprisonment for a term not less than one year but which may extend to seven years with a fine.
Corresponding amendments have been proposed in the CrPC and the Evidence Act as well. The responses received from the public will be co-ordinated by the Law Department. One of the questions that the department may be called upon to answer is: Can the act of sextortion be gender-specific in present times when same-sex relationships are no longer a social or legal taboo? The Supreme Court, albeit in a different and broader context, has decriminalised Section 377, IPC, which imposed life imprisonment for “carnal intercourse against the order of nature with any man, woman and animal”. Members of the LGBT (lesbian, gay, bisexual, transgender) community have been celebrating the apex court’s judgment.
Heartrending tales of child abuse and human trafficking strengthen the view that sexploitation is not restricted to opposite sexes. Admittedly, the IPC does not automatically extend to J&K, and the RPC continues to decriminalise sex against what is called the “order of nature”. To that extent, the department may find itself handicapped. What prevents it, however, from taking this laudable initiative to its logical end?
The Law Department also needs to reconsider its description of women as the weaker sex in the press release circulating the draft Bills. Growing gender parity in every sphere of activity is a big achievement that must be recognized. Education, enlightenment, and economic parity have evened the scales between men and women. Women, in any case, play a dominant role in agrarian societies like J&K, especially in the Valley.
On the whole, however, J&K has shown a commendable sense of urgency to legally address the “occurrences and instances of women being victimised by persons in authority or in a fiduciary relationship”. In its press release, the Law Department has said that such incidents are on the rise in the country and in J&K, and the prevalent legislative provisions have been found deficient to curb the menace. The press release further says that the proposed amendments are expected to deter persons in authority from abusing their authority, position, or influence to obtain sexual favours from women.
This move, though, is not without a touch of irony. The #MeToo movement has persuaded the state government to take corrective action, something that it could not do when a major sex scandal broke out in Srinagar in 2006, involving the high and mighty of the land. A few voices of sympathy for the girls, including minors, trapped in a vicious flesh trade racket, were raised but got drowned in the din over the alleged involvement of powerful ministers, bureaucrats, paramilitary and police officials in the scandal. As the investigation progressed, the Opposition made a bid to drag in then Chief Minister Omar Abdullah in 2009; he rebutted the charge, but felt so hurt that he immediately offered his resignation, which the governor rightly rejected. With the passage of time, the kingpins of the racket died natural deaths, some victims turned hostile and almost all the politicians and bureaucrats were given a clean chit. The last word heard about the case in the middle of 2018 was that a special CBI court had awarded 10 years’ imprisonment to five persons, including two uniformed men.
By and large, J&K has kept pace with the rest of the country in enacting laws to check atrocities on women. To the state’s credit, it has not allowed Article 370 of the Constitution, which confers it a special status, to become an impediment in doing so. In the aftermath of the brutal rape and murder of “Nirbhaya” on December 16, 2012, J&K shared the nationwide concern for safety of women. It adopted the Jammu and Kashmir Criminal Laws (Amendment) Act, 2013, by amending the RPC, the CrPC and the Evidence Act, soon after Parliament passed what came to be known as the Nirbhaya Act—the Criminal Laws (Amendment) Act, 2013.
However, a law is only as good as its implementation. Unfortunately, J&K has never been an ideal example of good governance. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, making it mandatory for every department to set up internal complaints committees to examine and prevent harassment of women, was marred by poor implementation. This was before then Chief Minister Mehbooba Mufti took remedial steps in 2016, and the J&K High Court intervened to further streamline the implementation of the Act in 2017.
The past inertia needs to be shed to maintain the present momentum.