Following the amendment to the Indian Penal Code in February 2013, indecent behavior against a woman could land you in jail. Is society on the same page as lawmakers?
By Vishwas Kumar
college boy shares a joke with a double entendre with his classmates. While most friends, including girls, laugh out loud, one girl takes offence and decides to take up the matter with the higher authorities. Does the boy have a reason to worry? Yes.
Following the new Criminal Law (Amendment) Ordinance 2013, signed by the president of India in February 2013, much of what was considered passable behavior is legally impermissible. Enough to land you in jail. You indulge in loose remarks, cheap jokes, wooing or alternatively stalking at your own peril. If a lady finds that these have sexual connotations, she is within her rights to take recourse to law.
The pendulum has swung, from women suffering varying forms of harassment in silence for fear of castigation, to now picking up courage to voice their disapproval at unacceptable behavior, and in some cases, even filing frivolous complaints.
A protestor gives out a firm message during the demonstrations in the wake of rape of five-year-old Gudia in Delhi in May 2013
It was in the wake of the Nirbhaya rape case of December 16, 2012 that the amendment was passed. Public outrage was unprecedented and no political party wanted to be on the wrong side of the public ire. The result was that the amendment did not even go to the Parliament Standing Committee for discussion.
Before the amendment, women complainants and their grievances were dealt with through the anti-rape provisions under section 375 and 376 of the Indian Penal Code (IPC). The working women issues were covered in the Supreme Court guidelines in the Vishaka case judgment in 1997 in response to a public interest litigation filed by Vishaka and others following the rape of Bhanwari Devi in Rajasthan.
Bhanwari Devi had tried to prevent child marriage in one of the state’s districts but was overpowered by a group of men who objected and then sexually assaulted her. For the first time, sexual harassment at the workplace was clearly defined and legal remedies were provided.
In a great hurry, the lawmakers ignored the fact that existing laws were enough to give culprits severe punishment, even death in case of gang-rape-cum-murder cases. Ironically, barring the juvenile, all the rapists in 2013 Nirbhaya rape case — that prompted the new amendment — were held guilty and sentenced to death under the previous anti-rape provisions. If there were problems or lapses, it was in its poor implementation.
For example, in the Tehelka case, the media organization had not constituted the sexual harassment committee to deal with internal complaints. However, once the allegation against the magazine’s former Editor-in-Chief Tarun Tejpal became public, Goa police swiftly moved and initiated the legal process.
The need for a new law existed to the extent that many forms of excesses earlier went unpunished. In Indian society, many perhaps don’t even realize they are trampling upon a woman’s personal space. While a man might ruin someone’s day with a nasty gaze, offenses like that can’t be proved in the court.
Which is why, perhaps, in the amendment, oral evidence and a woman’s word have been given credence. As Dr Bulbul Dhar James, honorary director, Sarojini Naidu Centre for Women’s Studies, Jamia Millia Islamia, says, “Criminalizing several sexual acts would definitely become a deterrent. Fear of criminal prosecution does work in this country even though there is a real chance of misuse.”
The legislation marks a significant departure in many respects, the most important being that the complainant can choose her time to walk into the police station.
Murari Tiwari, a noted criminal lawyer, is critical of doing away with the time-limit to lodge sexual offenses. He cites the recent examples of retired Justice AK Ganguly and Justice Swatanter Kumar against whom charges were leveled after one and two years, respectively. “It is a mockery of the law. Now charges are being brought after six or seven years. There should be some time-limit, otherwise there will be mayhem. Since the new rape law does not require evidence of medical report to prima-facie establish the charge, it has become easy (to file complaints),” he points out.
The other departure in the amendment is that a woman can file a complaint anywhere in the country, and not necessarily in the jurisdiction where the crime allegedly happened. The police will be required to transfer the case to the necessary jurisdiction.
Section 354 A, 354 B, 354C and 354D have been added to the IPC, in addition to Section 354, which deals with assault or the use of criminal force against woman with an intent to outrage her modesty.
Section 354A defines “sexual harassment” and includes acts like showing pornography, making physical contact, advances and unwelcome explicit sexual overtures, demanding or requesting sexual favors, or any other unwelcome physical, verbal or non-verbal conduct of sexual nature. Under 354 A (1), sexual harassment is a cognizable offense, non-bailable and carries punishment extending to five years with fine or both.
Section 354B states, “Whoever assaults or uses criminal force to any woman or abets such act with the intention of disrobing or compelling her to be naked in any public place, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to seven years and with fine.”
Section 354C defines voyeurism and stalking. Defining voyeurism, it says: “Whoever watches, or captures the image of a woman engaging in a private act in circumstances where she would usually have the expectation of not being observed either by the perpetrator or by any other person at the behest of the perpetrator shall be punished …”
Also, Section 375 was altered and the word “rape” was substituted by “sexual assault”. It implies that acts of sexual nature other than rape will also now be a criminal offense. Forcing a person to commit a sexual act on oneself or on any other person is now illegal. The age of consent has been increased from 16 to 18 years.
Also, the amendment says, “A person who does not physically resist the act of penetration shall not by the reason only of
that fact, be regarded as consenting to the sexual activity.”
The punishment for sexual assault has been made much harsher. It is imprisonment of not less than seven years, which could be extended to life, along with a fine. Also, aggravated sexual assault is liable for imprisonment of not less than 10 years but may extend to life imprisonment and fine.
An accused in the Nirbhaya rape case being taken to court
The legislation has the potential to fundamentally alter social dynamics. While it will enforce propriety, say in the workplace, there is a great deal of fear about its misuse.
Wilson John, vice president and senior fellow, Observer Research Foundation (ORF), says: “There are significant consequences of the legislation on employee relationships and overall office environment. These can be considered as “unintended” consequences. There is bound to be an atmosphere of suspicion and anxiety in offices which have largely been open and friendly.”Charan Reddy, former Lok Sabha MP and NRI industrialist, says, “It is dangerous to make a loosely defined conduct like ‘unwelcome behavior’ or ‘sexually colored’ remarks into a criminal offence. It has a huge potential for misuse. In the US, all such crimes are described in detail to avoid misinterpretation.”
It is the undefined areas of the legislation which are a reason for worry. There is lack of clarity on what will qualify as “conduct of sexual nature” or “voyeurism”. Will a pat on the back make a man liable to punishment, for instance? Will verbal abuses become a criminal offense? After all, the four letter word has become so much a part of corporate lingo, even female employees chant it. Will showing a nude picture of a model published in a magazine to a female colleague in course of work, say at an ad agency, be constituted as “showing pornography”? Will smearing color on a woman on Holi be called “conduct of sexual nature”?
Tiwari says the new law is over-dependent on oral evidence to start a criminal proceeding against an accused. It is a dangerous provision. “Police now register a case and leave it to the court to pronounce judicial verdict. Where is the criminal investigation that the police is duty-bound to do to find the truth?” he asks.
RS Gupta, former Delhi police commissioner, says, “Due to intense pressure from media and NGOs, cops are going to the other extreme. Even when they find there is little evidence or no evidence, they do not file a closure report. Instead they file a chargesheet and the accused have to go through extensive judicial process of trial to prove their innocence. But one must also remember that the same pressure also works on the judiciary and they too fail to take a stand.”
One such recent case is a rape complaint filed by a middle-aged woman with the Mehrauli police station in Delhi against two persons. One of the alleged rapists was Ajay Katara, an eyewitness in the sensational Nitish Katara murder case. The police had no choice but to immediately file an FIR even though they doubted the complainant’s account. During investigation, the cops collected cellphone records and other details of their movement on the day of alleged crime. The cellphone details and CCTV footage collected from a shopping mall in Gurgaon showed that at the time of alleged rape, the two accused were not even within 15-20 km distance from the site, where the complainant alleged the crime had happened.
Despite these findings, the case is still registered against the accused. The police can’t cancel the criminal case on their own. They have to submit all the evidence before the court. It is the court’s discretion to dismiss the case or direct the police to further probe the case based on documents placed before it. In the eye of the law, they are still alleged rapists.
The Mehrauli case is not an isolated incident, as statistics point out. In the wake of the amendment, there is an increase of over 100 percent in anti-women crimes registered in Delhi. Till November 2013, the Delhi police registered 1,493 cases of rape, as against 661 in the corresponding period the previous year; 3,237 cases of molestation as against 625 in the previous year, and 852 cases of harassment, as against 165 in the previous year. Ashok Mallik, honorary, vice president, Delhi Slum Dwellers Federation says: “The law has no provision to punish false accusers. There is absolutely no deterrence against lodging a wrong case. Non-enforcement of perjury law, which deals with false cases, by our judiciary has only encouraged liars.”
One step back
There is a real worry that this legislation will actually prove counterproductive to women’s empowerment. The new amendment had already made employers re-think their human resources (HR) policy on hiring women. A senior HR manager of a multinational company, refusing to be named, says: “We have stopped hiring women employees. Our senior management is unwilling to take a risk. We are scared of several sections in the amended sexual harassment clause that have now been made into criminal charges.”
He elaborates: “In the course of work, there are frequent disagreements, arguments, shouting and scolding. At times, we have to terminate or transfer women employees too. Now a woman employee could easily level the allegation that our action is malafide and drag us to police.”
Anil Bhasin, editor-in-chief, Asia News Features, says: “I have been forced to install CCTV cameras in our office as a precautionary measure. I have learnt that several big newspaper editors are now fearful of hiring women employees. Senior management doesn’t want to take a chance. They are scared that their legitimate action could be exploited by vengeful employees to slap sexual harassment charges.”
Tarun Tejpal, former Editor-in-Chief of Tehelka, being taken to Goa
Need of the hour
The legislation comes at a time when people from diverse social milieu are converging upon workplaces, with varying notions of men-women relationships and what is right and wrong. For instance, you might not admire women in revealing attire, but their attire is none of your business and gawking at them is a strict no-no.
Sensitization will also be required for the vulnerable teenage group, which is just opening up to the whole new world of possibilities, exploring relationships, including on social media without any sense of self control and quite oblivious to the new law. Any impulsive act on the part of a youngster could ruin his life, there being no second chances in law.
This will require sensitization programmes at every level, to make boys and girls, men and women aware of what is acceptable and unacceptable behavior in a group, school, college, workplace or a public place. Boys will have to understand that whether they like it or not, they will have to be within their limits.
Organizations will have to invest time and energy to prepare rule books in black and white to specify dos and don’ts, and conduct frequent workshops. Dr Dhar James of Jamia Millia Islamia, who is part of the internal committee to deal with sexual harassment charges, says her center conducts such sensitization programs for all the departments of the university, for familiarisation with the new law. “Whenever I conduct a workshop for faculty and students on sexual harassment, I face a lot of resistance from male members. They keep on pointing out flaws in the law. However, when I explain that the law now has punitive action and it could end one’s career, they become serious and listen carefully.”
Gupta feels that it will take at least a decade to evolve procedures. “Once the police, judiciary and society come on the same page, it will become easy to weed out frivolous cases. However, I must warn that in the course of achieving that fine balance, there will be several victims.”
The Justice Verma Committee had also suggested that the amendment in anti-rape laws is only one of the major steps to
provide women constitutional equality. The full result will only come after police reforms, educational reforms, training of personnel in the criminal justice system, and services such as well-equipped centers for dealing with rape.
The easy part has been accomplished. The tough task begins.
A relook at laws
Following the Nirbhaya rape case on December 16, 2012, a three-member committee headed by Justice JS Verma,
former chief justice of the Supreme Court, was constituted on December 23, 2012 to recommend amendments to the criminal law.
The other members on the committee were Justice Leila Seth, former judge of the High Court, and Gopal Subramanium, former solicitor general of India. The committee submitted its report on January 23, 2013. The amendments in the Indian Penal Code, February 2013, emanate from the recommendations of that committee.
The committee broadened the definition of rape and suggested that rape should not be limited to penetration of the vagina, mouth or anus. Any non-consensual penetration of a sexual nature should be included in the definition of rape.
It recommended that non-penetrative forms of sexual contact should be regarded as sexual assault. The offense of sexual assault should be defined so as to include all forms of non-consensual non-penetrative touching of a sexual nature. The committee suggested imprisonment of five years or fine, or both, in case of sexual assault. In case where force has been used to disrobe a woman, it suggested three to seven years and a fine.
The committee included in its ambit many aspects of harassment of women, including acid attacks, sexual harassment of women at workplace, assault on women in disturbed areas, and child abuse. It also discussed police reforms in great detail.