Sexual Harassment of women is a subject currently drawing attention of everyone in the society. It evokes keen interest amongst many people. The silence of women victims for ages has
broken with the courage and support from the government, media and activist groups working on women issues. The Government of India in the back drop of Supreme Court guidelines and directions (Visakha Case) enacted the law to address the problems of sexual harassment of women at work place. "The sexual harassment of women at work place (PPR) Act, 2013 popularly known as POSH Act. Similarly the uproar in the Country over the gang rape case in Delhi resulted in enactment of Nirbhaya Act 2013 by way of amendments to Indian Penal Code. The fillip gained from the daring disclosure of Tanushree Dutta of sexual harassment gave rise to Metoo movement visibility since 2017 in India. The cases of sexual harassment are still unabated in spite of various measures undertaken by the Government and other agencies concerned. The perpetrators should be kept under check and this menace be tackled with multi prolonged approach. Besides strict enforcement of law this needs to be addressed through counseling and sociological awareness. The victims need to come forward to speak up and fight but it is well worth fight. A careful reading of the laws and the mechanism brings about lacunae and gaps coming in the way of dealing with the issue effectively. An attempt is made to examine them legally with clinical approach to bring to the notice of the stake holders to deal cases of sexual harassment with right perspective.
The subject of the sexual harassment of women is examined with reference to (1) Sexual harassment of women at work place (2) Sexual harassment of women outside the work place (3) Sexual harassment of women at work place and outside the work place. To deal with the above aspects of the problem, the definitions of sexual harassment of women under The Sexual Harassment of Women at Work Place (PPR) Act 2013 and sexual harassment of women under Criminal law (Amendment) ct 2013 also popularly known as Nirbhaya Act 2013 need to be examined. Sexual Harassment as defined under section 2 (N) of the Sexual harassment of women at work place (PPR) Act 2013means " any one or more of the following unwelcome acts or behavior (whether directly or by implication) namely (i) Physical Contact and advance or (ii) A demand or request for sexual favour or (iii) making sexually coloured remarks or (iv) showing pornography or (v) any other unwelcome physical, verbal or non verbal conduct of sexual nature. Similarly sexual harassment as defined under Nirbhaya Act section 354(A) of Indian Penal code means "A man committing any of the following acts (1) physical contact and advances involving unwelcome and explicit sexual overtures or (ii)a demand or request for sexual favours or (iii) showing pornography against the will of a woman or (iv) Making sexually coloured remarks" The definition prima facie appears similar. The definition under sexual harassment of women at work place Act is wider in its coverage. The acts specified under POSH Act says that the acts even by implication amounts to sexual harassment, whereas under the Nirbhaya Act there should be explicit and clear conduct or behavior to bring the acts under sexual harassment.
The offence of sexual harassment of women is conceptually similar under POSH Act and Nirbhaya Act and at the same time they are given different treatment while dealing with the offence and offenders. The contradictions or differential approach in the POSH Act and Nirbhaya Act are dealt with as under.
Sexual harassment of women-conceptually same with differential treatment: Sexual harassment of women at work place is an offence under POSH Act and it is criminal offence under IPC if committed outside the workplace. The consequences are dissimilar and punishments are harsh under Nirbhaya Act and not so harsh under POSH Act. Time limits are prescribed to file complaint and complete enquiry under the POSH Act and there is no such limitation under the IPC/ Nirbhaya Act.
Enquiry into the charge of sexual harassment of women
The enquiry under POSH Act, should be conducted by the Internal Complaints Committee. It is the criminal court that conducts the enquiry under Nirbhaya Act. Evidence Act is not applicable to the enquiry proceedings under POSH Act and they are guided by the principles of natural justice. The trial under Nirbhaya Act follows strict and technical rules of criminal procedure code and Evidence Act. The standard of proof under POSH Act is preponderance of probabilities and it is proof beyond reasonable doubt under Nirbhaya Act.
Outsiders and lawyers assistance to the offender/respondent is not allowed in the proceedings under the POSH Act and Advocates assistance can be taken by the accused in the trial before a criminal court under Nirbhaya Act. ICC under POSH Act has powers of civil court under Civil Procedure Code.
The scope of sexual harassment of women has been expanded and the acts that are not included in the definition like stalking, eve teasing, assault or use of criminal force with intent to disrobe and voyeurism have been made offences under Indian Penal Code by the Nirbhaya Amendment Act 2013.
Me too activism & legal constraints
The silence of women for ages to speak against sexual harassment due to lack of awareness, social Taboos and other constraints have been the weapon in the hands of male harassers to perpetrate the offence for ages. "Me too" movement has gained momentum on account of a few brave and bold women breaking the shackles started speaking up against the offence and offenders since 2017. No doubt it is a good development to support and the problem needs to be addressed. The Government of India constituted a group of ministers to recommend
measures and frame work to address such offences of sexual harassment of women under "Me too" ambit.
A careful reading of incidents of sexual harassment under Me too that are reported if examined legally, gives scope for lot of gaps and loopholes making them very difficult to prove with the existing laws. The POSH Act and the Nirbhaya Act came into existence in 2013. All cases under "Me too" before 2013 are barred by limitation and such cases cannot be taken up retrospectively under POSH Act.
It is even much more difficult to invoke and prosecute the offenders under Indian Penal Code. The standard of proof in criminal trial/case is proof beyond reasonable doubt. The reported cases under "Me too" are very old and proving them with cogent evidence becomes a herculean task. The complainant in one case is facing a case of criminal defamation. Authorities are not able to proceed with "Metoo' case as there are legal hurdles. In one of the cases, Delhi High Court struck down the trial court judgment holding that there are lot of inconsistencies and improbabilities in the case. Tanushree Dutta and singer chinmayi cases are examples where authorities could not proceed due to legal constraints but they gave courage to many women to come out openly and express their ordeal. The women in the society have been eagerly awaiting the outcome of group of ministers recommendations on measures and frame work to tackle "Me too" cases for justice.
All of us agree that POSH Act and Nirbhaya Act have brought out a radical change in women by providing legal support to file and fight against the oppressors. The judiciary has been very supportive by sympathizing and empathizing with women and delivering justice to the women with punishments to the offenders.
At the same time there are dark spots where a few women are trying to misuse the laws for their personal vested interests. Recent judgments of Delhi High court and Madras High court give credence to the argument that a few women are misusing the laws. Delhi High Court in a recent case slapped a fine of Rs.50,000/- against a woman for filing a false case of sexual harassment. In another case Madras High court made a sensational observation that there is need to revisit women protection laws. while delivering the judgment Madras High Court opined that the cases of sexual harassment are going the way of 498 A and instances of misuse have been increasing. These comments are made in the context of a case where a woman used her daughter as a tool to file a false case against her estranged husband to settle her personal score. The woman prompted her eleven year old daughter to file a false case of sexual harassment by the father. In the end the High Court directed the Government to file a case against the woman for filing a false case of sexual harassment. Justice Sujatha Manohar also once opined that many women were misusing the "Me too" movement to shame the men on social media and to settle personal score."
Of course stray instances of such cases cannot be a basis to dub the sexual harassment cases in general as false. POSH Act, Nirbhaya Act and Me too in fact provided a good platform to the women to secure justice. The big question is whether laws alone are enough to tackle the menace of sexual harassment of women? The challenge before the society is that there are going to be many such offences in future possibly due to increasing participation of women in economic and work place activities.
Law and Justice
The Government on their part enacted laws to protect the women against sexual harassment. The enforcement authorities have been positively and proactively responding wherever the sexual harassment is reported. The judiciary on their part have been empathizing with the women while deciding the cases of sexual harassment of women either at work place or outside the work place. The judicial orders of the courts on this subject reinforce the commitment of judiciary to the women's protection. The theory of notional extension of work place is admitted and accepted where ever there is nexus between the place of offence of sexual harassment and employment. Another important issue decided in favour of the women is upholding the recommendations of Internal complaints Committee in the enquiry and actions decided and taken by the employer on the basis of the findings of the Internal complaints committee under POSH Act. The High Court of Madras held in one case that the offender/respondent cannot invoke the jurisdiction of the Labour Court against the orders of punishment by the Employer. Labour Court/Tribunal cannot sit on appeal to decide the fairness of the findings of Internal Complaints Committee under POSH Act. No doubt all agencies responsible for women's protection have been working in tandem but the cases of sexual harassment of women are still unabated. It is clear that over and above laws and justice the will of the society and change in the attitude of men are dire need to tackle menace of sexual harassment of women.
Apart from legal measures, the issue of sexual harassment needs to be addressed through counseling and sociological awareness. A drastic change in the attitudes of men is the need of hour and leaving everything to the laws and Government to solve the issue remains unsolved forever.