How to file a case on instances of sexual harassment at workplace

Sexual harassment in the workplace is one of the biggest problems which has started to increase as the corporate culture has begun to flourish. Anyone can be a harasser, and anyone can be a victim. It is insignificant as to who commits the offense. It could be a manager, co-worker, or even a non-employee like a client, contractor, or vendor. If the person’s conduct creates a hostile work environment or interrupts an employee’s success, is considered sexually harassing. An act which may amount to sexual harassment may vary from a sexually colored involuntary encounter with a senior employee of colleague, winking, whistling inappropriate touch or similar behavior. An act of a senior employee asking for a non-consented sexual favor from the junior employee, in lieu of promotion in the job, falls in the category of sexual harassment at the workplace.

To govern such actions and create a healthy working environment for women, Supreme Court of India, in the landmark case of Vishaka v. State of Rajasthan to fill the legislative vacuum laid down Vishaka Guidelines for the protection of women from sexual harassment at workplace. Later an act was passed by the legislature named, Protection of Women from Sexual harassment at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

As per the rules governing sexual harassment at workplace, it is compulsory for all organizations with 10 or more workers to constitute an Internal Complaints Committee (ICC) for registration of complaints relating to sexual harassment and take action against the guilty employer or employee. Constitution of ICC is a legal right, and in case the workplace is refusing to constitute the same, they can be legally penalized.

The constituted ICC can file a complaint against the incident of sexual harassment at your workplace. A complaint must constitute the following details.

1. Name of the person by whom the complaint is filed.
2. The date on which the incident of sexual harassment took place
3. The time when the incident happened
4. Description of the incident or inappropriate behavior
5. Name of the person accused of sexual harassment
6. Working relationship between the victim and accused.

The complaint with the details mentioned above must be filed within three months of sexual harassment incident, with full confidentiality and speedy process. This sexual harassment complaint can be filed by anyone irrespective of gender. Lodging of an internal complaint with the ICC does not cease the right of the victim to lodge a criminal complaint against the colleague or employer. Reply to the complaint must be filed by the accused within ten days. An inquiry has to be completed within 90 days. The final report generated thereof must be submitted to the Employer or District officer within ten days. The Employer or the District Office has to act on recommendations within 60 days. In addition to this, if the victim or accused is not satisfied with the recommendations of the ICC or LCC (Local Compliant Committee), a further appeal can be filed before a tribunal or a court.

In the case of  Apparel Export Promotion Council vs A.K. Chopra placed before the SC of India, Accused mentioned that the penalty on him was harsh and disproportionate to the charge leveled against him. It was concluded by the research that the accused had not actually molested the victim, but had only tried to assault her and had not made any physical contact with her. On this, the Staff Committee observed that no lenient view would be justified in a case of molestation of a woman employee when the charge was fully proved. Any sympathetic action in such a situation would have a demoralizing effect on working women. One of the judges from the bench, in this case, remarked that they would not wait for a girl to be raped and then the charges of sexual harassment could be logged. Hence the charges levied on the accused are reasonable and not disproportionate.

Apart from the complaint mechanism, the employer can take another recourse such as Criminal proceedings and Disciplinary action.

Know More:  Sexual Harassment at Workplace

Under Criminal proceedings, as per Vishakha Guidelines, when the conduct of accused amount to a specific offense under IPC or any other law, the employer shall initiate appropriate actions in accordance with the law. Attention must be paid to ensure that victim or witnesses are not victimized or discriminated against while dealing with the complaints of sexual harassment. Following are the specific provisions of Indian Penal Code, that can be applied in a sexual harassment case thereby making it a criminal complaint.

Section 294, talks about the obscene act in public place.

Section 354, embodies the provision when whosever assaults or uses criminal force on any women, intending to outrage her modesty.

Section 509 holds that whosoever intending to insult the modesty of women, utters any word, makes any sound or gesture or exhibits any object or intrudes upon the privacy of such women. The same shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both.

In addition to the aforementioned recourses, when such conduct amounts to misconduct in employment as defined by the relevant service rules, appropriate disciplinary action must be initiated by the employer in accordance with the rules.

A civil suit can be filed for damages under tort laws. That is, the basis for filing the case would be mental anguish, physical harassment, loss of income and employment caused by sexual harassment.

Developments in Section 376 of IPC

Scope of Section 376 of IPC

Section 376 of the Indian Penal Code deals with the Punishment for rape and this particular has undergone various amendments to meet the requisites of the society. It attempts at deterring such criminal offenders by instilling a sense of fear in them. Unfortunately looking at the rate of crimes against women, we cannot totally agree to the fact that such legal provisions have relieved women. In this article, we shall be analyzing section 376 along with the amendments it has undergone over time.

Section 376 before Amendments:

• Subsection 1 deals with the punishment for rape of a woman in all circumstances except the ones mentioned under Section 376(2). The punishment in such cases was rigorous imprisonment for a period not less than 7 years and which may be extended to imprisonment for life and shall also be liable to fine.
• Subsection 2 deals with the punishment for the rape of a woman committed by police officers, public servants, member of armed forces, etc. The punishment is a period of not less than 10 years which may extend to imprisonment for life i.e. imprisonment for the remainder of his life and shall also be liable to fine.

The Rape Laws underwent a change in 2013 after the brutal Delhi Gang Rape Case (Nirbhaya Rape Case). The nation-wide spread outrage over the brutal Gang rape in the Capital City which eventually led to the death of the Physiotherapy intern became the driving force behind the passing of the Criminal Law Amendment act 2013. The Act increased the ambit of the term “Rape” as mentioned under Section 375 of IPC.

Criminal Law (Amendment) Act of 2013:

The Act came into force on the 3^rd of February 2013. It inserted 4 clauses (376 A TO 376 D) in Section 376 taking into consideration cases where the injury inflicted on women during Rape can get them in a permanent vegetative state.

1. 376 A– Whoever, commits an offence punishable under sub-section (1) or subsection (2) of section 376 and in the course of such commission inflicts an injury which causes the death of the woman or causes the woman to be in a persistent vegetative state, shall be punished with rigorous imprisonment for a term of minimum twenty years, but which may extend to imprisonment for life i.e. imprisonment for the remainder natural life of the offender, or with death.
2. 376 B– Whoever has sexual intercourse with his wife, living separately, whether under a decree of separation or otherwise, without her consent, shall be punished with imprisonment of either description for a term of minimum 2 years which may even extend to 7 years and will also be liable to fine.
3.  376 C–  Whoever, being:

•   In a position of authority or in a fiduciary relationship; or
•  A public servant; or
•  Superintendent or manager of a jail, remand home or other places of custody established by or under any law for the time being in force, or a women’s or children’s institution; or
• On the management of a hospital or being on the staff of a hospital, abuses such position or fiduciary relationship to induce or seduce any woman either in his custody or under his charge or present in the premises to have sexual intercourse with him, such sexual intercourse not amounting to the offence of rape, shall be punished with rigorous imprisonment of either description for a term of minimum 5 years which may extend to 10 years, and shall also be liable to fine.

4.  376 D– Where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with rigorous imprisonment for a term of minimum 20 years but which may extend to life which shall mean imprisonment for the remainder of that person’s natural life, and with fine: Keeping in mind that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim.

Criminal Law (Amendment) Act, 2018

This Act came into force on the 21^st of April 2018. It intended to amend the subsections of Section 376 and also insert a few clauses. In subsection 1 of Section 376, it substituted the 7-year imprisonment with rigorous imprisonment of minimum 10 years which may extend to life imprisonment. Moreover, Section 376 had only 2 subsections and this Act inserted another subsection which stated that whoever commits rape on a woman below 16 years shall be punished with rigorous imprisonment of minimum 20 years which may extend to imprisonment for life and shall also be liable to fine.

Read Also: Child Sexual Abuse in India

Further an additional Section 376 AB was inserted after 376 A and it laid down that “Whoever commits rape on a woman below 12 years shall be subjected to rigorous imprisonment of minimum 20 years which may even extend to imprisonment for life, and with fine or with death.” The fine imposed should be reasonable to meet the medical expenses and rehabilitation of the victim.

Then Section 376 DA was added after 376 D and it stated “When a woman below 16 years is raped by 1 or more persons constituting a group or acting in furtherance of a common intention, each of such persons shall be deemed to have committed the offense of rape and shall be punished with imprisonment for life, and with fine.

Conclusion:

The various Amendments have made an attempt to bring about significant changes in the country but the implementation of such acts on the land has remained lousy. Another issue which continues to be overlooked by our legislators is Marital Rape and unfortunately, none of these Amendment Acts have acknowledged it as a crime. Hence we see Stringent Legislation is required for overall protection of women from outsiders as well as their family members.

Top 5 Advantages and Disadvantages of Section 498A IPC

Section 498A of the Indian Penal Code was introduced in the year 1983. This section was added to protect a married woman from subject to cruelty from her husband or her in-laws. The term “cruelty” here refers to any harm caused to the person both mentally or physically. Section 498A IPC protects a woman from harassment related to dowry or any marital issues. According to this section, the accused is subjected to 3 years of punishment or fine. Though this section was introduced to protect women from exploitation, it has got some disadvantages too, which we shall see in this article.

What is Section 498A IPC?

Here’s the text of the Article 498A IPC as mentioned in the Indian Penal Code:

Husband or relative of husband of a woman subjecting her to cruelty.—Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be pun­ished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Advantages of Section 498A IPC

• Prevents the Exploitation of Women:

The exploitation of women has always been a critical issue since for years. One of the major advantages of introducing this section is protecting women from getting exploited.  If any woman is being subjected to cruelty as explained in the section, then it would be taken as a punishable offense. And whoever subjects her to cruelty shall be punished for three years or pay a penalty fine.

• Empowers the Women:

Section 498A seems to have empowered women in Indian. It has encouraged women to come forward and file complaints. Initially, women hesitated to raise voice against the harassment with the fear of not being heard.  With the increased number of cases under this section, women do not feel hesitated any more to register their complaints. Women are now voicing against her husband or in-laws rather than staying silent in such gravity situations.

• Effectively Controls the Suicide Rates:

Given increased cases of cruelty on women by her husband or her in-laws, 498A was introduced. The number of suicidal cases due to cruelty has decreased greatly after the introduction of 498A IPC. Before the introduction of this section, it was found that about 40% of women deaths were suicidal cases. Reduction of suicidal cases is one of the main objectives behind introducing this law, which has been carried out effectively.

• The Deaths due to Dowry have been Reduced:

If a person has caused dowry death to a woman, then he would be taken in custody or may be punished. Increase in the number of dowry deaths is a serious concern for Indian Law. Therefore, 498A was introduced to reduce the cases of dowry deaths. If a woman is mentally or physically abused for not bringing a dowry with her, she has all the rights to register a complaint and seek justice. This provides them with an option to seek their right to live instead of committing suicide.

• Makes the In-Laws More Responsible:

All the cases registered under this section and the punishment given to them has set an example for others. Husbands and his relatives are now becoming more concerned about their responsibility and non-negligible towards their duties. The section 498A IPC thereby ensures that every woman needs to be treated with respect and care.

Disadvantages of Section 498A IPC

Apart from having so many advantages for the women there, the article 498A IPC has a huge number of shortcomings which need to be addressed to soon. There are several disadvantages of this Act which are making the premise redundant. The top 5 disadvantages of the section 498A IPC are:

• Easily Misused:

Many women use this power as a weapon against their husbands and their relatives. There are many cases under 498A, which involves wrong allegation cases. Many times, the women put false allegations on her husband of being beaten or getting exploited to instill in them a fear. In many cases, the husband is the victim but still ends up getting punished, and his family is left at the mercy of an ill-minded woman.

• Lack of Investigation increases Blackmails:

There is no proper investigation made on the complaints registered by the woman. In most of the cases, the husband is directly taken into custody without even investigating if that allegation is right or not. Therefore, it cannot be guaranteed completely that all the cases registered by the women under 498A are entirely true. This is misused by the privileged women in most of the cases.

• Too Complex a Process:

From registering a complaint to availing justice, section 498A involves a complicated process. It includes a lot of paperwork to finish the formalities. Moreover, it includes a lot of time and efforts. This discourages many women as they feel uneasy taking their time out, go to the police station, and file complaints. Furthermore, they feel the whole process testing their patience level to get justice, which is a clear violation of the saying Justice Delayed is Justice Denied.

• Unreliable Evidence:

When women resister their case, many times, they are asked for evidence to prove their point.  In many cases, women fail to find evidence in to file the case. There have been many cases which are declined due to no evidence presented. Not only women, but it happens in the case of men too. If they want to prove the allegation put on them wrong, they are asked to bring the evidence. And failure to present the evidence may lead to non-consideration of the complaint. This makes the law heavily biased, which is against the fundamental principle of equality as guaranteed by the Constitution of India.

• Social Discouragement Enhanced:

In most of the cases, it was found that women gather all their courage to raise voice against the harassment but don’t file a case. The reason behind this is the discouragement of her family members, mainly in rural areas. Therefore, the real victims do not get to use the act at all while it is being misused by the privileged ones. The society is yet to accept this and hence shames the women raising their voices. Hence, due to a fear of social boycott, women are discouraged from taking any actions. 

Conclusion

Section 498A IPC has helped many women to get justice against the atrocities committed by their in-laws. However, it has got a few negative points too. Although women empowerment is a need of the hour, it is mandatory to make sure that no injustice is done to the men as well. A reformation in the act is required at the earliest to reap the benefits of this act by the last person of the pyramid.

Impact Of Section 497 On Married Indian Couples

In 2017, a significant decision was passed by a three-judge Bench which struck down a colonial-era law that prescribed maximum imprisonment of five years to men for adultery. The instant Writ Petition was filed by one Mr. Joseph Shine under Article 32 of the Constitution of India. It challenged the validity of Section 497 IPC, read with Section 198(2) of the Criminal Procedure Code (CrPc). The Bench appreciated the submissions advanced by the learned counsel for the Petitioner and thereby felt the need to have a re-look at the constitutionality of the provision.

In this article, we will answer questions pertaining to the non-constitutionality of the provisions of Section 497 and its impact on married couples.

What is Section 497

According to section 497, “Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offense of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such a case, the wife shall not be punishable as an abettor.”  Simply put, only a man can be a victim or accused/culprit under the existing reading of Section 497 of the IPC.

The provisions of the said section are very orthodox in nature and are based on societal presumptions. The constitutional rights of a woman, bestowed upon her by virtue of birth, are being gravely infringed upon. Ordinarily, the criminal law proceeds on gender neutrality but in this provision, the said concept is absent. On a perusal of the language of the said provision, the words “without the consent or connivance of that man” only reflects the perilous inequality and creates a dent on the individual independent identity of a woman.

Section 497 makes two classifications

The first classification is based on who has the right to prosecute. It is only the husband of the married woman who indulges in adultery, is considered to be an aggrieved person and is given the right to prosecute for the offense of adultery. Conversely, a married woman who is the wife of the adulterous man has no right to prosecute either her husband or his paramour.

The second classification is based on who can be prosecuted. It is only the adulterous man who can be
prosecuted for committing adultery and not the woman, even though the relationship is consensual; the adulterous woman is not considered to be an “abettor” to the offense.

The adultery law, therefore, has been criticized for treating women as property or chattel of their husbands. Consequently, the offense of adultery was treated as an injury to the husband, since it was considered to be a “theft‟ of his property, for which he could proceed to prosecute the offender.

Findings of the Apex Court

In light of the above arguments, it was observed that “The time when wives were invisible to the law and
lived in the shadows of their husbands, has long since gone by. Legislation that perpetuates such stereotypes in relationships, and institutionalizes discrimination is a clear violation of the fundamental rights guaranteed by Part III of the Constitution. There is, therefore, no justification for the continuance of Section 497 of the Indian Penal Code. framed in 1860, to remain on the statute book.”

Section 198(2) of the Cr.P.C. which contains the procedure for prosecution shall be unconstitutional only to the extent that it is applicable to the offense of Adultery under Section 497.

Adultery and Married couples

However, the issue remains as to whether “adultery‟ must be treated as a penal offense subject to criminal sanctions, or marital wrong which is a valid ground for divorce.

A criminal wrong is the one which is committed against the community at large i.e where the community is the victim of such a wrong. For instance, Murder is an offense committed not just against the family of the deceased but also against the society in general. On the contrary, a private wrong is the one which is committed against an individual. For example, a breach of contract.

Adultery may be an act committed to private by two consenting adults, it nevertheless is not a victim-less wrong. It negatively impacts the institution of marriage and family, the well being of the children and society in general, and therefore must be subject to penal consequences. Hence the State has a legitimate public interest in making it a criminal offense.

On contrary to this view, adultery is a marital wrong and therefore should only invite civil consequences. To criminalize a certain content is to declare that it is a public wrong which would justify public censure, and warrant the use of criminal sanction against such harm. However, a person should be able to make personal decisions in his/her life. such an act should be protected from public censure.

Adultery is undoubtedly a moral wrong committed against the spouse and the family. However, the fundamental right to live with dignity includes the right not to be subjected to public censure and punishment by the State except where absolutely necessary the State must consider whether the civil remedy will serve the purpose. Where a  civil remedy for a wrongful act is sufficient, it may not warrant criminal sanction by the State.

Conclusion

Before the enactment of the Marriage Laws, 1976, adultery was treated as the conduct of grave immorality and was not considered as a ground for divorce. Post the 1976 Amendment, the grounds for judicial separation and divorce are the same and it is a mark of great development in the Hindu Personal Laws.

While reading the judgment, Chief Justice Dipak Misra said, “Adultery cannot be a criminal offense, however, it can be a ground for civil issues like divorce.” It has been defined under Section 13(1) of the Hindu Marriage Act, 1955 and Section 22 of the Indian Divorce Act makes provisions for a decree of judicial separation on the grounds of adultery.

Read Also:   The New Rules For Divorce In India

To conclude, it can only be said that laws which may be relevant at a given period demand various changes with the passage of time. Education, development in civil-political rights and socio-economic conditions have drastically undergone a change. Therefore, the historical background in which Section 497 was framed, is no longer relevant in contemporary society.

Learn The Truth About Domestic Violence Act- An Overview In The Next 60 Seconds.

The position of women in Indian society has never been stable. Their journey started from enjoying equal rights in the ancient period to struggle against discrimination in the medieval time and fighting for their rights in the modern era.

Women have been facing abuses since long back. They have not only suffered emotionally, mentally, verbally, religiously but also physically. This all often takes a wrong turn and women end up suffering from marital rape, dowry death, suicide, acid attacks, beating, female genital mutation, etc.

According to former Union Minister for Women, Renuka Chowdhary 70% of women in India are the victims of Domestic Violence.[1]

These practices became so prevalent and entrenched that the Government of India took a step forward and implemented an Act on 13 September 2005 for the protection of women from all kind of violence. The Act came to be known as The Protection of Women from Domestic Violence Act, 2005.

Domestic Violence – Definition

The word ‘domestic violence’ has been defined in Section 3 of the PWDVA, 2005. The definition has a significant amplitude and covers all types of abuses against women. It covers physical, sexual, verbal and emotional, and economic abuse.

The sections read as follows-

For this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it—

1. harms or injures or endangers the health, safety, life, limb or well‑being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse, and economic abuse; or
2. harasses, harms, injures or endangers the aggrieved person to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or
3. has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or
4. Otherwise, injuries or causes harm, whether physical or mental, to the aggrieved person.[2]

The framework of the definition has been taken from ‘UN Declaration on Violence Against Women and a Model Code’.

Read More Here: Domestic Violence Act

Who can file a complaint under the Domestic Violence Act?

Any ‘aggrieved person’ as per Section 2(a) of the Act can seek relief.

“Aggrieved person” means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent.[3]

• It is very clear from the definition that only a female victim can be an ‘aggrieved person’.
• The victim should have a ‘domestic relationship’ with the respondent. According to Section 2(f), the domestic relationship includes a relationship by means of living together or sharing household and is related to each other by consanguinity, marriage, relationships in nature of marriage, adoption, etc.

The victims of Live-in Relationships are also protected under the Act. This right has been recognized in various judgments like Khusboo v. Kannimal[4]; Chanmuniya v. Virendra Kumar Singh Khushwaha[5].

Against whom the complaint can be filed?

Section 2(q) defines ‘respondent’ as follows:

“Respondent” means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act: Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner;

Therefore, from the above definition, it is very clear that the victim can file a suit against her husband who commits such act against her or any other male partner with whom she is in a live-in or the relatives of the husband/male partner, i.e. the in-laws.

Who may or may not be included in the ambit of relatives is of utmost importance and differs from case to case.

This was upheld in Sandhya Wankhede v. Manoj Bhimrao Wankhede[6].

Relief that can be sought by the victim under the Act

The Act recognizes many reliefs to empower a woman to tide over an emergency.

If the victim obtains relief under this law that does not mean she is barred from approaching courts under the personal law. The PWDVA is a secular law and runs parallel to personal laws.

The Act provides the following reliefs-

• Counseling (Sec. 14)

The magistrate before whom the parties are presented may direct either the parties or the party who requires to the counseling process.

• Protection Orders (Section 18)

The magistrate can issue protecting order against the respondent. This is generally done to keep the victim in a protective shell so that the respondent doesn’t reach out to her for causing violence.

A  Protection Officer, preferably a woman, is appointed by the concerned government to file a domestic incidence report.

• Residence ( Sec. 19)

The Magistrate can restrict the respondent from the place of the victim. Further, the respondent cannot evict the victim from the place of the residence.

• Maintenance (Sec. 20)

Under Section 20, the respondent may be directed to provide monetary compensation to the victim for any loss she has accrued, be it property loss, medical loss or any other financial loss.

• Child’s Custody (Sec. 21)

The custody of the child should be in the victim’s hand. The father of the child may be provided visiting rights.

Retrospective effect of the Act

The Delhi HC in its 2012 decision of V.D.  Bhanot v. Savita Bhanot [7]viewed that “even a wife who had shared household before the DV Act came into force would also be entitled to the protection of this Act”.

Therefore, giving the aggrieved party the right to file a suit even for the acts which have been committed before the enforcement of the Act.

Citation

[1] ‘India tackles domestic violence’ (BBC News, 26 October 2006) <http://news.bbc.co.uk/2/hi/south_asia/6086334.stm> accessed 3 February 2019

[2] The Protection of Women from Domestic Violence Act 2005, s 3

[3] The Protection of Women from Domestic Violence Act 2005, s 2(a)

[4] Khusboo v. Kannimal (2010) 5 SCC 600.

[5] Chanmuniya v. Virendra Kumar Singh Khushwaha 1 SCC 141.

[6] Sandhya Wankhede v. Manoj Bhimrao Wankhede (2011) 3 SCC 650.

[7] V.D. Bhanot v. Savita Banot(2012) 3 SCC 183