www.whiteblacklegal.co.in ISSN: 2581-8503
VOLUME 1: ISSUE 8 ||January 2020 ||
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ABOUT US
WHITE BLACK LEGAL is an open access, peer-reviewed and refereed journal provide dedicated to express views on topical legal issues, thereby generating a cross current of ideas on emerging matters. This platform shall also ignite the initiative and desire of young law students to contribute in the field of law. The erudite response of legal luminaries shall be solicited to enable readers to explore challenges that lie before law makers, lawyers and the society at large, in the event of the ever changing social, economic and technological scenario.
With this thought, we hereby present to you
WHITE BLACK LEGAL: THE LAW JOURNAL
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SEXUAL HARASSMENT (SOCIAL AND PSYCHOLOGICAL ISSUE)
By – Tania Sharma
ABSTRACT
In India gender inequality is so pervasive that we often don’t even see it. In fact certain forms of sexual harassment, like unwanted touching or sexist comments, are so commonplace that women and girls don’t even call it sexual harassment. Sexism and certain forms of sexual harassment are so normalized. It’s hard to distinguish it from another day at school or just another day at work. This has to change. In India women are not safe because they can’t go out late nights because there are many monsters that keep their dirty eyes on women which makes them uncomfortable. Many cases of sexual harassment were covered by the media but many of them remain unexplored. Although violence against women like- sexual harassment, rape, exploitations of women is not a recent origin its traces is found in history of ancient India. This paper has attempted to find out the Indian perspectives women exploitation in modern society. Every girl and women has rights to live free and free from violence. India is facing many numbers of cases on sexual harassment. Sexual harassment, sexual assault, rape these cases hampers the women’s dignity, their constitutional rights like equality, dignity etc. this paper starts with the meaning of sexual harassment and then looks into the various aspects that alleged to this brutal issue. Also discuss the global laws to curb the sexual harassment and the status of sexual harassment in India with the most burnt sexual harassment cases in these days. #METOO movement was also in news these days where many women’s came up with their real life stories on sexual harassment. This paper discuss that what is the main problem that encourage the sexual harassment day by day in India. The study also indicates the sexual harassment on the workplace and also suggest some suggestions that how to tackle all these issues.
KEYWORDS – Sexual Harassment, Women, Law, #ME TOO, Exploitation, Rights.
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TABLE OF CONTENT
TITLE PAGE NO.
ABSTRACT 1
INTRODUCTION 3-4
Statement of problem
Research objective Research methodology GENDER INEQUALITY TRANSFORMS INTO SEXUAL 4-5 HARASSMENT Few signs of gender inequality Provisions in Constitution of India to safeguard the rights CLASSIFICATION OF SEXUAL BEHAVIOR 6-8 Misconceptions about sexual harassment Categories of sexual harassment at work place Psychology behind sexual harassment Categories of harassers IMPACT OF SEXUAL HARASSMENT ON INDIVIDUAL 8-9
GLOBAL LAWS TO CURB SEXUAL HARASSMENT 9-10 United nation
LEGAL STATUS OF SEXUAL HRASSMENT IN INDIA 10-12 HAS BOLLYWOOD NORMALIZED SEXUAL OFFENSES? 12-14
SEXUAL HARRASMENT ALLEGATIONS AGAINST 14-16 #METOO MOVEMENT
CASE LAWS ON SEXUAL HARRASMENT AND LEGAL 16-20 CHANGES AFTER CASES.
QUESTIONNAIRE 20-22
VIEW POINT 23
CONCLUSION 24
6 www.whiteblacklegal.co.in ISSN: 2581-8503 INTRODUCTION
There is no industry or institution that is immune to it. It happens in companies and universities, on factory floors and on movie sets, in restaurant kitchens and congressional offices and it hurts so many people. Sexual harassment is about the unequal powered relations between men and women in society.
It all starts with gender inequality; it affects women as well as men. Gender issues which are faced by men and women both societies thinks that taking care of the family is only the responsibility of women and he would lose the respect of his wife if husband took the decision to work in home and send wife to work outside. This scenario highlights the presence of gender inequality in our society and mindset that only man can hold the important positions and family was only the responsibility of women.1
Now, Women are working in the same capacity as men in all the work areas and all levels of society. They have acquired and have all the skills and knowledge needed to succeed in any profession they choose. Additionally, they have all that is required to get Haden job some of which always thought of men’s forte. Men and more women’s are venturing in to areas which are traditionally dominating by the men and vice versa. This helps in increase in income of households and as well as providing a sense of fulfill needs of women.In India IT and IT- enabled services industry has provided a variety of career opportunities for women.
STATEMENT OF PROBLEM
This research paper intended to focus on various problems and issues related to the sexual harassment with women in India. The problem is related to social stigma, public exploitation faced by women. This study critically analyzes the laws in India as well as in other countries on sexual harassment. Why sexual harassment is a serious offense in India. The major problem is that people are not aware about the laws they even don’t know that sexual harassment like giving vulgar comments, whistling, making another person uncomfortable is an offence. It shows the great failure on the part of the government and law making bodies that are not protecting the interest of the women in the society. The monsters that make uncomfortable women by teasing them they are not afraid of the laws.
RESEARCH OBJECTIVES
The objectives of this research are:
1Available at https://www.ncbi.nlm.nih.gov/books/NBK519464/(visited on January 5,2020)
7 www.whiteblacklegal.co.in ISSN: 2581-8503 To examine the stages of women exploitation. To analyze status of law in Indian Penal Code and other Local Laws of crimes against women. To analyze the factors that influences the sexual harassment in society. To provide some recommendations to overcome these issues.
RESEARCH METHODOLOGY
For this research paper I have used doctrinal and non- doctrinal methods.
For doctrinal research, I have studied various articles, law journals, books, case laws etc. this type of research is done to gain more knowledge about the topic and to critically analyze the data related to exploitation of women, progress of related laws, gender inequality that leads sexual harassment, psychology behind the sexual harassment. This type of research is helpful in doing comparable study of sexual harassment laws in home country and other countries.
For non-doctrinal research, I have used questionnaire method to collect the opinions of students about the sexual harassment.
GENDER INEUALITY TRANSFORMS INTO SEXUAL HARRASMENT
Sexual harassment can be defined as the any unwelcomed or unwanted attention of sexual nature from any person which will cause for discomfort, humiliation, offence, or distress. It included actions of sexual nature directed at one or more workers by a person or a group of people. Sexual harassment can manifest in the form of unwelcomed touching or offensive and sexuallysuggested jokes at women on the basis of her sexual identity. Harassment can also involve promises of advancement in exchange of sexual favors. 2
Few signs of gender inequality-
Difference in pay for men and women doing equal or comparable work. Not allowing full and equal participation of women in the workforce. Dissuading men for helping out in household chores. Providing limited access to occupations and industries on the basis of gender. Discrimination in providing different level of education to boys and girls.
2Available at https://www.theatlantic.com/business/archive/2017/10/sexual-harassment-media-hollywood- entertainment/544068/ (visited on January 6,2020)
8 www.whiteblacklegal.co.in ISSN: 2581-8503 Many provisions in our constitution of India to safeguard our rights against gender inequality-
ARTICLE 14- Equality before law The State shall not dent to any person equality before the law or the equal protection of the laws within the territory of India, Prohibition of discrimination on the grounds of religion, race, caste, sex or place of birth. 3
ARTICLE 15(1)- “The state shall not discriminate against any citizen on the grounds of only religion, caste, sex, place of birth or any of them”
(2) “ No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to access to shop, public restaurants, hotels and places of public entertainment.”
(3) “Nothing in this Article shall prevent the state from making any special provision for women and children.4
Who carries out harassment?
Women can also be quilt of sexually harassing other women or even men similarly the harasser need not be necessarilya supervisor. It can also be any person around us.
What qualifies as sexual harassment-?
According to the supreme court guidelines- sexual harassment includes the unwelcomed behavior of physical contact, a demand and request for sexual favours, sexually colored remarks, showing pornography, ant other unwelcomed conduct of a sexual nature physical, verbal or non-verbal conduct of a sexual nature. For ex- leering, telling dirty jokes, sexual remarks about the body and sexually colored remarks could include
Using double meaning words when talking to other person or, Remarking sexually on dress or accessories worn by the person.
CLASSIFICATION OF SEXUAL BEHAVIOR
Physical i. It includes attempt of rape or sexual assault ii. Unwanted deliberate touching, learning over, concerning, pinching.
3 The Constitution of India,art.14 4 The Constitution of India.art.15
9 www.whiteblacklegal.co.in ISSN: 2581-8503 iii. Touching persons clothing, hair or body. iv. Hugging, kissing, patting or stroking. Verbal i. It includes making unwanted sexual remarks or jokes. ii. Raising sexual topics during work discussions. iii. Whistling Non verbal i. It includes pressuring the other person for sexual favors ii. Making unwanted sexual gestures iii. Sending unwanted mails, phone calls, or SMS.5
MISCONCEPTIONS ABOUT SEXUAL HARASSMENT-
1. Only women can be sexually harassed?
This is one of the biggest myths. Men as well as women can be the victims of sexual harassment. In addition, men can sexually harass a man or a woman can sexually harass a women.
2. Women enjoy being passed comments on and being eve-teased?
Sexual harassment as well as eve-teasing is painful, distasteful, frightening and humiliating.
3. Ogling at someone to make him/her uncomfortable comes in the purview of sexual harassment?
Sexual harassment definition includes ogling a person to make him/her feel uncomfortable.
4. Certain dresses and gestures invite sexual harassment?
Nobody can invite sexual harassment. Sexual harassment is a way to display false sense of power which focuses on sexual orientation.
CATEGORIES OF SEXUAL HARASSMENT AT WORK PLACE -
1. Quid pro quo sexual harassment- it is a Latin word which means doing a favor or providing advantage to someone in return to something. It occurs when anyone in authority offers to provide some favor like a salary raise in return for satisfaction of a
5Available at https://courses.lumenlearning.com/wmopen-psychology/chapter/introduction-to-sexual- behavior/(visited on January 7,2020)
10 www.whiteblacklegal.co.in ISSN: 2581-8503 sexual demand. It also occurs if a manager promises not to fire or punish an employee for her wrongdoing. This kind of behavior also find in case of a job applicant being told that the decision to hire her depends on the acceptance or rejection of sexual advances. 2. Hostile working environment sexual harassment-This type of sexual harassment is happen when employee is subject to physical, verbal, or non-verbal conduct or behavior that is uninvited and unwelcomed. It can be created by a co-worker or boss. Environment that does not provide an employee with a favorable conditions to carry out his/her duties. Generally related to the gender of the person being harassed and interferes with the ability of the person to do his/her job. 3. Psychological harassment- It is defined as humiliating or abusive behavior which is identified by comments, behavior, actions or gestures which are frequent and hostile and are intended to negatively affect the employee’s integrity and dignity. Psychological harassment can be counted only if it is prevented from becoming repetitive. 4. Internet harassment –when harassment carried out using computer and internet it is known as internet harassment. Internet harassment prevalent at home, school, as well as work. It is also called as cyber bullying. It is defined as the use of the internet to threaten or harass another person.6
PSYCHOLOGY BEHIND SEXUAL HARASSMENT
Major causes of sexual harassment includes-
Flawed upbringing Lack of values of the harassers Their viewpoint that they grow up with Some men getting a false sense of power when harasses women Some others who feel threatened when women do well in their career. Their ego can’t except the fact that women are equally capable of doing work whatever men can Sometimes lax attitude of the other people towards sexual harassment incidents.
CATEGORIES OF HARASSERS-
1. Mr. Macho –Who link harassment to bravado.
6Available at https://www.nolo.com/legal-encyclopedia/what-kinds-of-behaviors-are-considered-sexual- harassment.(visited on January 8,2020)
11 www.whiteblacklegal.co.in ISSN: 2581-8503 2. The Great Gallant – Who pay excessive compliments and make personal comments at their victims. 3. The Opportunist- Who looks for opportunities and ogles at women and touches them inappropriately. 4. The Power Player- Who exhibits the power of their position to get sexual favors from women. 5. The Serial Harasser- Who is habitual and may have an underlying psychological problem. 6. The Situational Harasser- Who displays the conduct/behavior due to a life situation or a medical problem. Such as divorce, illness etc.7
IMPACT OF SEXUAL HARASSMENT ON INDIVIDUAL-
1. Psychological suffering -Sexual harassment impact on individual includes the humiliation, reduced motivation, loss of self-esteem, loss of trust etc. 2. Behavioral change - It includes isolation, emotional withdrawal from friends, family, and other relatives also. 3. Stress- related illness - It includes sleep disturbances, stomach ailments, drug and alcohol abuse etc. that affect the person in great sense.
GLOBAL LAWS TO CURB SEXUAL HARASSMENT-
Sexual harassment is not just prevalent in India but has been experienced by women all around the world. It has deep negative impact on the quality work in specific and quality of life in general and impacts the well-being women and men.
1. UNITED NATIONS – The UN General Assembly in 1979 adopted The Convention On The Elimination Of All Forms Of Discrimination Against Women(CEDAW). This convention acknowledged as an international bill of rights for women. It consists of Preamble and 30 Articles defines discrimination against women. It also provides the plan to end such discrimination.
7Available at https://www.psychologytoday.com/us/blog/how-be-yourself/201711/four-psychological-traits- sexual-harassers (visited at 9,2020)
12 www.whiteblacklegal.co.in ISSN: 2581-8503 According to (CEDAW) The discrimination against women defined as any distinction, exclusion or restriction made on the basis of sex which has the effect on the purpose of impairing or nullifying the recognition, enjoyment or exercise by women irrespective of their marital status on the basis of equality of men and women of human rights and fundamental freedoms in any field( political, economic, social, cultural etc.) CEDAW is an international treaty first time attempt to lay down guidelines to promote basic human rights and specifically underline the rights of women. It provides the agenda to counter gender discrimination across all the countries this agenda is applicable that adhere to it. 189 countries have ratified it since inception. India ratified it in 1993.8
DETAILS OF CEDAW-
ARTICLE 1 – This Article emphasizes definition of discrimination and clearly defines discrimination against women also listed that what qualifies as discrimination against women. ARTICLE 2- This Article enshrines the obligations to eliminate discrimination. All countries must let go laws that discriminate among people and policies to eliminate discrimination must be part of the national legal framework. ARTICLE 3- It discusses the development of women states that women are equal to men in all respects and also stated that nations must take steps to uphold women’s equality in all fields. ARTICLE 4- It focuses on the acceleration of equality and ask countries to implement temporary measures to accelerate women equality. ARTICLE 5- This Article explain sex roles and stereotyping and also elaborate stereotyping and promote countries to modify or eliminate practices that encourage stereotyping. ARTICLE 6- this elaborated the problem of exploitation of women and emphasizes that it must be stopped at all costs.
LEGAL STATUS OF SEXUAL HARASSMENT IN INDIA-
8Available at https://www.un.org/womenwatch/daw/cedaw/ (visited on 9,2020)
13 www.whiteblacklegal.co.in ISSN: 2581-8503 In India women are not safe they even afraid to go outside midnight because they were not aware about the monsters that are waiting for them. In Indian constitution there are some provisions which describe punishment to guilty person on certain offences.
The Crimes under the Indian Penal Code (IPC)
SECTION 294 – Under this section performing obscene acts and singing vulgar songs in public places which affects the another person and that action make another person feels uncomfortable is punishable under this section with imprisonment of upto 3 months, a monetary fine, or both.9
SECTION 326A & 326B – Under these sections for an acid attack and for attempting to throw acid a person who causes damage, injury and harm or disable any part of body of another person by throwing acid is punishable with imprisonment for a term shall not less than ten years but which may extend to imprisonment for with fine.10
SECTION 354 – If any accused used some criminal force against any woman, knowingly it to be likely that such act will outrage her modesty, he shall be punishable with imprisonment upto 2 years, or with fine, or with both. SECTION 354A – If the accused, commits any of the following act against woman (i) physical contact and unwelcomed sexual overtures or (ii) demand for sexual favours (iii) showing pornography against woman consent (iv) making sexual coloured remarks, in all these cases he should be guilty as an offense of sexual harassment. The punishment is imprisonment of 1 year, a monetary fine, or both. SECTION 354B –A person who uses criminal forces to any woman or abets or compelling her to be naked shall be punishable and imprisonment for minimum 3 years and shall also be liable to a monetary fine. SECTION 354D – A person who follows women or monitors the use by a woman of the internet, email or any other form of electronic communication comes under the offence of stalking. The punishment for stalking is imprisonment for up to 3 years and also a monetary fine.11
9 The Indian Penal Code, 1860 (Act 45 of 1860),s.294 10 The Indian Penal Code, 1860 (Act 45 of 1860),s.326A,326B 11 The Indian Penal Code, 1860 (Act 45 of 1860),s.354A,B,D 12 The Indian Penal Code, 1860 (Act 45 of 1860),s.376 13 The Indian Penal Code, 1860 (Act 45 of 1860),s.509
14 www.whiteblacklegal.co.in ISSN: 2581-8503 SECTION 376- The punishment for rape is a minimum of 7 years and it can also leads to life imprisonment also and a monetary fine. A person who is convicted in marital rape is punished with 2 years imprisonment and monetary fine or both. In case of rape by a public servant in abuse of his duty, rape of pregnant women, rape of a women less than 12 years of age and gang rape, punishable with imprisonment of 7 years which can extend to a life term also and a monetary fine.12 SECTION 509 – If the accused utters any word, makes any sound or gestures, or exhibits any object, intending that such word or sound shall be heard or if person intrudes upon the privacy of the survivor he shall be punishable with imprisonment of up to 1 year, or fine or both.13 POSH ACT- In 2013, India approved the sexual harassment of women at workplace (Prevention, Prohibition and Redressal) Act. The purpose of this act is to prevent sexual harassment of women at workplace. It also make employees responsible for providing protection against sexual harassment as well as putting into a place a redressed mechanism for complaints related to sexual harassment. According to this act, it is essential for an employer to create a complaints committee. Internal committee it is mandatory for every employer to constitute an IC which entertains the complaints by aggrieved women and IC must have – A presiding officer. Not less than two members from amongst employees. At least one member from amongst non-governmental organizations or associations. At least half of the members are women. LOCAL COMMITTEE- Each district must constitute a local committee that is responsible for receiving complaints of sexual harassment from organizations having less than 10 workers. It also comes into play when the complaint is against the employer himself. POSH COMPLAINT PROCEDURE- An aggrieved woman must file a complaint within 3 months of the date of the incident. Once the complaint is received the IC or LC must conduct an inquiry according to the rules under the act. The inquiry must be completed within a period of 90 days. In case the complainant is a domestic worker, the LC forwards the complaint to the police to register a case under the relevant provisions of IPC. If the IC finds the allegations are true, it submits a report to the employer to: Take action for sexual harassment as a misconduct to deduct from the salary or wages of the respondent, appropriate sum that needs to be paid the aggrieved woman or to her legal heirs. The employer must act
15 www.whiteblacklegal.co.in ISSN: 2581-8503 on these recommendations within 60 days.Additionally government of India provided SHE- BOX (sexual harassment electronic box) it provides a single window access to every woman to facilitate the registration of complaint related to sexual harassment. It is for every woman irrespective of her work status. Any women facing sexual harassment at work place to register their complaint through this portal. Once the complaint is submitted to the SHE-BOX complaint is directly sent to the concerned authority.14
HOW HAS BOLLYWOOD NORMALIZED SEXUAL OFFENSES?
Sex is still taboo across most of Indian society, even if it wasn’t always this way. Early Indian culture was actually pretty sexually progressive. But in 1700-1900s colonization happened and mixed with religion and nationalism, sex slowly became something dishonorable or wrong. You couldn’t talk about it in public. So, you couldn’t talk about it on the big screen either and the aggressive censor board made sure of that. It was impossible for Bollywood movies to show any explicit nudity, or sex scenes, or even a kissing scene. But sex sells, and the industry knew that. So, Bollywood filmmakers got creative with it. They began to allude to sex without showing anything explicitly; using visual metaphors or subtle song lyrics using visual metaphors or subtle song lyrics “NAMAK ISHQ KA” is a song about oral sex. Item numbers actually became a thing as early as the 1930s. Before they were this hugely popular trend appearing in almost every movie, they were actually a form of escapist cinema for presumably mostly male audiences. Movies were the only openly available source for anything sexual. There was no internet or porn back then. But in the 1980s the Indian film industry experienced a decline because the market for home videos was booming. Filmmakers had to find a way to revive it, and just alluding to sex wasn’t going to cut it. So, according to film scholar Kush Varia, the industry started serving these male audiences with scenes and plotlines meant to satisfy their “perverse pleasures.” Sex couldn’t technically be shown as a positive thing, so it had to be shown in a negative context and one easy way to show sex as bad was through rape or sexual assault. So, unsurprisingly, they were pretty formulaic. Evil villain rapes helpless damsel who is saved but the self-righteous hero. The honor of the family has been protected! Who cares about the woman, right? The scene in MULZIM movie the moment Ranjeet starts to rape the woman, the hero dramatically jumps in to save her. What follows is a long fight sequence between the two actors, and the rape is forgotten entirely. The woman is considered the man’s property. Almost 70% of sexual
14Prevention, prohibition and Redressal Act, 2013
16 www.whiteblacklegal.co.in ISSN: 2581-8503 violence in moves in the late 90’s was shown as “FUN” which showed a very flawed idea of consent. After the 90s, these kinds of rape scenes gradually went away from mainstream Bollywood because other mediums became popular. But they were replaced by subtler forms of rape culture, including careless jokes about rape, and a lot of the same ambiguity around consent. So, it makes sense that so many Indians think stalking and eve-teasing is completely acceptable, both in movies and in real life and it continues to normalize sexist behavior every day. The National Crime Records Bureau reported that four women are raped every hour in India. That is a staggering number. We’ve practically internalized the degradation of women, which is why when it appears in comedies like “GRAND MASTI” people laugh and enjoy it without actually processing that this has an effect and/or reflection in real life. After the internationally shocking NIRBHAYA rape case of 2012, some movies like MAATR, PINK, MOM, did do it right. Rape was not trivialized and sexual violence was treated sensitively. But these films never became nearly as successful as the ones that capitalized on sexist tropes. Not to mention that many of the rape scenes we have discussed still have thousands views on YouTube as of October 2019.15
SEXUAL HARRASMENT ALLEGATIONS AGAINST-
If we are talking about sexual harassment with women in India then we should notice that in India every serious crime like rape, sexual assault etc. started with sexual harassment. If we noticed that some girls do not spoke that they were harassed by some monster. Girls always thought that what society would think. But in the developing India girls are coming out and speaking about the harassment. Recently #METOO movement has been started in September in which Tanushree Dutta accused Nana Patekar of inappropriate behavior on the set in 2008. After this case many women coming out with their #METOO stories.
1. NANA PATEKAR, TANUSHREE DUTTA- In September 2008, actress Tanushree Dutta accused nana Patekar of sexual harassment while shooting their film ‘HORN OK PLEASSS’ the actress Dutta said that she was doing solo number for the film, but nana Patekar came and decided to join and started doing intimate steps which made her uncomfortable. She also said that she lodged the complaint 10 years ago but no action was taken.
15Available at http://www.mindthenews.com/bollywood-promote-stalking-sexual-harassment-women-2013/ (visited on January 10,2020)
17 www.whiteblacklegal.co.in ISSN: 2581-8503 2. VINTA NANDA, ALOK NATH, SANDHYA MRIDUL-Alok Nath known for on- screen acting. He has done many serials. Vinita Nanda accused him of rape and actress Sandhya Mridul also put allegations on Nath that he had made sexual harassment during shoot. Nanda had also said that he had raped her 19 years ago. 3. SALONI CHOPRA, PRIYANKA BOSE, MANDANA KARIMI ALLEGED ON SAJID KHAN-Multiple allegations of sexual harassment were put on Bollywood director SAJID KHAN. After knowing the allegations on Sajid khan many senior actors refused to work with Sajid. Actress Saloni Chopra had posted horrible time she had with Sajid. Priyanka Bose also spoke about the Sajid khan and said that when she was called by Sajid khan for an auditions and khan’s assistant said that sir is asking that “should be comfortable on a bikini” she said then when she landed up with required clothing no sides were given. Mandana karimi also impose some allegations on khan that when she visited into the office of Sajid for a role in “HUMSHAKALS” on that time he had asked her to remove her clothes if she wanted to work in film. 4. ADITI MITTAL, KANEEZ SURKA – It was not only men who are alleged in #METOO movement. Kaneez Surekha accused fellow comedian Aditi Mittal of sexual harassment when she was hosting comedy show in Mumbai. She tried to kiss her forcefully and without taking consent. 5. CJI RANJAN GAGOI ACCUSED OF SEXUAL HARASSEMENT- The former employee of Supreme Court made an affidavit or a statement by a woman making charges of sexual harassment against CJI. After all this allegations a much heard CJI quickly assembled a bench and dismiss all the charges and called it all a conspiracy against the court and CJI. Other two judges signed the order not the CJI himself has signed the order. Many questions were raised that no one can be judge in its own case by taking it setting of a bench; by taking up the case himself justice Gagoi had not clearly followed the principle of natural justice.For setting a bench by himself for his own case it lead great criticism. After the great discussion the separate committee was set up for investigate charges against the CJI. So, this committee is very high powered it has the second senior most judge that is justice Shrad Bobde, justice NV Ramana, justice Indira Banerjee. This bench was established to hear the charges against Gagoi. It was said that justice NV Ramana is the friend of Gogoi and they often came to the home of Gogoi so, NV Ramana was replaced with Judge Indu Malhotra. The complainant appeared three times in front of the committee at the third appearance she said that she wasn’t happy with the way the proceedings were going and she wanted to be helped by a lawyer and she said look I don’t feel confident in front of the
18 www.whiteblacklegal.co.in ISSN: 2581-8503 senior judges where I was just an employee so, I need a support of my lawyer as would be mandatory under Vishakha guidelines. The committee on the other hand said this is an informal inquiry so no lawyers are needed and lawyers were permitted. Then she said she will not appear before the committee any more. Then the committee summoned. According to Supreme Court if the women boycotted in this way then it wasn’t correct for the committee to go on never the less and decide on a case. Three judge committee as closed this case. Public said that Vishakha guidelines are also required that the person against whom complaints are made also gets a right to privacy which in this case not happened because in this complaint not to the internal committee of the court but to all judges and it was made public through the media. Supreme Court has judged their own chief justice and they have judged him innocent. The problem arises with the lack of transparency with the Supreme Court and its process. Now, Supreme Court has said that this committee’s report will not be made public. So, none of us knows the detail of the report.16
CASE LAWS ON SEXUAL HARASSMENT
TUKA RAM AND ANR. VS STATE OF MAHARASTRA17
In this case a young girl named Mathura was raped by the two police man while she was in custody on March 26th, 1972. This case raised so many issued on Indian rape laws. It was held that in session’s court the judgment was given in favor of the defendants and held them not guilty. Court said that Mathura gave her own consent voluntary because she was addicted to sexual intercourse.
The court said that there is a great difference between the “sexual intercourse” and “rape”. Then case went to Bombay high court they came up with the point that there is a difference between the “consent” and “ passive submission” and the court held that the consent was not free consent was taken by a serious threats by the policeman. Later, the case went to the Supreme Court, where the court acquitted the accused and said that there was no mark, on the body of Mathura that shows that the Mathura had not been in fear of death or hurt so the consent was free. And it was held that in this case sexual intercourse is not proved to amount to rape.
LEGAL CHANGES AFTER THIS CASE-
16Available at http://www.mindthenews.com/bollywood-promote-stalking-sexual-harassment-women- 2013/(visited on January 11,2020) 17 AIR 1979 SC 185
19 www.whiteblacklegal.co.in ISSN: 2581-8503 In criminal law act, 1983 inserted SECTION 114(A) in INDIAN EVIDENCE ACT, 1872 which stated that when there is a case of rape where it was proved that sexual intercourse by accused did take place, if the victim says that she had not consented to the sexual intercourse then in that case court has to presume that she did not consent as a presumption of law. Section 376(2) added in Indian Penal Code, 1860 for “custodial rape” for the offence which takes place when a victim is the custody of state. Section 228A also added in the Indian Penal Code, 1860 which states that publication for the identity of rape victims and any matter which disclose the victim’s identity is prohibited.
VISHAKA v. STATE OF RAJASTHAN18
This case was the landmark case which states the protection of women against sexual harassment on workplace. It provides various guidelines to protect women at workplace. In this case a lower cast social worker work for women’s development programme in Rajasthan named Bhanwari Devi who was working to stop child marriage in her village was allegedly gang raped by five men of the upper class community. She lodged a complaint against them but no investigation was conducted. It was held that the sexual harassment of the woman at the work place would be violate of her fundamental rights under Article 14,15,19,21 of the Indian Constitution.
LEGAL CHANGES AFTER THE CASE-
Until 1997, there was no major law to protect the working woman at work place from sexual harassment. Guidelines which was given in this case are as follows
Vishaka guidelines are based on CEDAW the guidelines followed on all workplaces whether public or private sector and are enforceable by the law. Employers and or other responsible people in the work place must prevent or deter sexual harassment and set up processes to resolve, settle, or prosecute in case of sexual harassment complaint addressed in a time-bound manner. All employees must provide a complaint mechanism. That consists of complaints committee, special counselor and other support services. The employer must sensitize female employees to their rights.
18 AIR 1997 (7) SC 384
20 www.whiteblacklegal.co.in ISSN: 2581-8503 Even if the third party is responsible for sexual harassment the employer must take all steps necessary to support the victim. Under these guidelines it is described that sexual harassment includes the unwelcomed behavior that also include physical contact and advances, demand orrequest for sexual favors, sexually colored remarks, showing pornography and other conduct like physical, verbal, non-verbal. The complaints committee should have women as the head of the committee and atleast half the members must be women. The complaints committee must involve third party (such as NGO) familiar with the challenges of sexual harassment.
ARUNA SHANBAUG VS UNION OF INDIA19
In this case Aruna Shanbaug was a staff nurse working in KEM (King Edward Memorial Hospital),Mumbai. In 1973, on 27th November one sweeper in the hospital attacked on Aruna and wrapped a chain around her neck. He tried to rape her but finding that she was menstruating, he sodomized her. During this act he twisted the chain around her neck. Next day a cleaner found her in unconscious condition with blood all over. It was said that supply of the oxygen to the brain stooped due to chain and the brain got damaged. She had been survived on the mashed food and paralyzed. Doctors said that there is no hope for any improvement in the condition of Aruna. It was prayed to direct the respondents to stop feeding Aruna and let her die in peace.
The court decided to appoint a team of three doctors to investigate the physical strength of the Aruna. Doctors said that she is not brain dead she reacted on some things like she enjoys the lights she likes when few people around her but she got irritated when more than few people gathered around her. The staff of KEM Hospital was taking care of her. Thus, the doctors opined that there is no need of euthanasia.at last she died after 42 years in coma when was 68years.
MUKESH & Anr vs. State for NCTof Delhi & Ors(NIRBHAYA GANG RAPE) 20
On a cold winter night of December 16, 2012, where Nirbhaya and her friend were coming back from a movie and they boarded a bus at munirka bus stand. Five adult persons and a juvenile tosatisfy their unnatural whims and sadistic pleasure raped her and left her to die. An iron rod was inserted in her private parts. While taking her to Singapore for treatment the woman died.
19 Criminal no.115 of 2009 20 Criminal Appeal NOS. 609-610 of 2017
21 www.whiteblacklegal.co.in ISSN: 2581-8503 The next day a huge outery broke in India regarding this case. There were a lot of candle light marches, solidarity movements and protests. India has always been notorious for being unsafe for women, and this was the spark which ignited the fire of public outrage. The outrage was not restricted to India; the whole world had formed an opinion about India.
The police identify the four accused namely Ram Singh, his brother Mukesh, Vinay Sharma and Pawan Gupta. All accused were arrested and a fast-track court to deal with this case. In the month of February the charges were framed against all the accused. One of the immates, Ram Singh committedsuicide by hanging himself in his cell in Delhi’s Tihar Jail.
In the month of august and September the proceedings were concluded against all the four accused and they were found guilty of 13 offences including gang rape and murder. The juvenile was also held guilty of murder and rape and was sent to probation home for 3 years. On September 13 the court sentenced the four adult convicts to death. On September 23 The High Court begins hearing the death sentence references sent by the trial court. But due to so many complications still this case is in the court.
LEGAL PROVISIONS THAT COME TO LIGHT-
THE RAREST IF THE RARE DOCTRINE - This phrase has its genesis in a 1983 Supreme Court decisions, Machhi Singh vs. state of Punjab. This judgment upheld the constitutional validity of capital punishment but added a caveat that is now famous; that death sentences would be accorded only in the “rarest of rare” case. The high court held that the present case to be the rarest of the rare case. The court said that “the offence in the present case has indubitably been committed in an extremely fiendish, demontac, barbaric and nefarious manner. Also the manner in which the offence has been committed is demonstrative of exceptional licentiousness and perversion of a superlative degree. So, the death penalty was upheld by the high court and the appeals of the accused were dismissed. SECTION 375 (INDIAN PENAL CODE)- The criminal law (amendment) act, 2013 gave a broader meaning to the term rape. It amended the definition under Section 375 of the IPC – “any involuntary and forceful penetration without the woman’s consent into the woman’s body parts like vagina, urethra, mouth or anus.” SECTION 228A – controversy around the name, section 228A of the Indian Penal Code “prohibits anyone (especially the media” to print or publish the identity of the victim in cases of rape. The guilty may be imprisoned for two years, along with being liable for a fine.” According to the above section crimes of the nature of rape are
22 www.whiteblacklegal.co.in ISSN: 2581-8503 associated with a lot of social stigma. If the people are highlighted their life becomes miserable. Hence the Sections aim at preventing the social victimization of the victim.
QUESTIONNAIRE-
1. Have you ever been Sexually Harassed? a) Yes b) No
Type of Yes No Response Number of 18 2 Response
The majority of respondents faced the sexual harassment. So, India should buckle-up and made some laws which helps to decrease these offences. Women can live happily and freely and without any kind of fear.
2. Have you seek legal help for sexual harassment? a) Yes b) No
Type of Yes No Response Number of 5 15 response
The majority of respondents said that they had not taken any legal help because they think that this thing is normal in India. And some people are not aware that harassment is criminal offence. The major reason of this is lack of Education.
3. What is the procedure for seeking legal help? a) Complicated b) Lengthy c) Biased d) Favorable
23 www.whiteblacklegal.co.in ISSN: 2581-8503 Types of response Complicated Lengthy Biased Favorable Number of 4 6 9 1 responses
The most of the respondent said that the procedure for seeking legal help is biased and lengthy. Most of the people who have faced the sexual harassment viewed that the whole system is inter-linked and biased. Some of them said this system is very complicated.
4. While taking help from law enforcement authority what problems did you face? a) Irrelevant questions. b) Asking for bribe c) Uncomfortable environment d) Lack of female police.
Types of Irrelevant Asking for Uncomfortable Lack of female response questions Bribe environment police
Number of 4 9 6 1 responses The majority of the respondents shared the views that while taking help from authority they face many problems major problem is asking bribe, and the they didn’t like the environment and they ask irrelevant questions.
5. How knowledgeable are you about where to make a report of sexual harassment? a) Not at all b) A little c) Very d) Extremely
Types of Not at all A little Very Extremely response Number of 9 8 2 1 responses The majority of respondents are not aware that where to make a report of sexual harassment. The reason is that people have lack of knowledge. So, Government should conduct seminars
24 www.whiteblacklegal.co.in ISSN: 2581-8503 on the awareness purpose in which they can teach people that whom and where to report about these serious issues.
6. There is failure on the part of law to protect the interest of women who are facing sexual harassment? a) Strongly agree b) Agree c) Disagree d) Strongly disagree e) Not sure
Types of Strongly Agree Disagree Strongly Not sure responses agree disagree Number of 3 11 0 3 3 respondents The majority of the view agreed that it is failure on the part of law to protect the interest of women who are facing sexual harassment. The law has laid provisions but it does not clearly the implementation process to the people.
VIEW POINT
At its core, sexual harassment is about the unequal powered relations between men and women at school, at work and in society. In other words gender inequality is both the cause of sexual harassment and the consequence of it and what this means is that we will never have full equality, women will never be fully equal to men, as long as this behavior continues. Since male-dominated structures uphold a system of sexual harassment, then we need to change the structures. We need more women in leadership. Having more women in management won’t eliminate the problem; in fact, women can be perpetrators too. But when you have more women at the highest levels, this creates greater equality in the power that men and women hold inside organizations and therefore in society, just more broadly. According to me when we have more women in leadership you have more gender equality and more inclusive practices like better work life policies. Having more women in management can do a lot to alter these hyper-masculine environments. Leaders need to take this issue seriously.
25 www.whiteblacklegal.co.in ISSN: 2581-8503 When leaders take visible and firm stance that sexual harassment won’t be tolerated, it’s less likely to happen. People experience less harassment. When leaders clearly define what sexual harassment is and what the disciplinary consequences are only then they can be able to stop sexual harassment. When you see someone being mistreated, talk to them, name what happened, and make sure that they understand that what happened is wrong. Because this is not okay, and no one should ever think that it’s normal.
CONCLUSION-
The Hon’ble Supreme court defines sexual harassment as sexual determined behavior which may be unwelcome, physical, verbal or non-verbal conduct. According to Article 14, 15 and 21 sexual harassment is gross violation of women’s right to equality & Dignity and calls for: prohibition, prevention and redressal. Today all the work places in India are mandated by sexual harassment at workplace Act 2013 to provide a safe and secure working environment for all women. This is compulsory that only women can be sexually harassed. Men as well as women can be victim of sexual harassment. The main causes of sexual harassment are flawed upbringing, lack of values, viewpoint that they grow up with, feel threatened when women do well in their career the ego cannot accept the fact that women are equally capable of doing whatever men can. These incidents encourage sexual harassment. Sexual harassment statistics surveys conducted by various bodies such as National Crime Records Bureau, Indian National Bar Association and National Commission For Women. These survey reports clearly highlight the rise of complaints of sexual harassment in the last few years. They also clearly indicate that sexual harassment at work place is not a one-off incident, but rather an uncomfortable reality. It also highlights a steep rise in sexual harassment complaints. Statistics by National Commission For Women suggest that cases of complaints rising every year. Indian National Bar Association conducts a survey called GARIMA that reaches out to over 6407 people out of which 78% were women working in sectors such as BPOs, IT education legal and hospitality. Women have right to life, right to live with dignity so, please stop harassing women and pull their leg down. They have right to fly high.
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