Assignment: Section 375 and Women Modesty at Workplace

Section 375 and Women Modesty at Workplace

Today I want to present a very important topic handling Gender issues with reference to IPC section-375. We have witnessed the #METOO movement around the world has brought out many cases. Many films have also focused light on these issues, for example, Holywood Movie Bombshell (2019) Directed by Jay Roach. One critique Dann M wrote about it in review website Rotten Tomatoes as -"Incredibly provocative and controversial, Bombshell is a compelling issue drama. While the film purports to be about the Roger Ailes scandal of 2016, it just uses that as a pretext to tell a sexual harassment drama (and to take some knocks at FOX News). Half of the main characters are fictitious and there wasn't any cooperation from the alleged victims, so there's no real attempt to tell the true story of what happened. Still, it's an engaging and evocative story about an important social issue. And the film has a strong cast that includes Charlize Theron, Nicole Kidman, Margot Robbie, and John Lithgow. Bombshell has some problems and isn't exactly fair and balanced, but it presents a chilling look at the struggles that women go through in the workplace." ( Source: https://www.rottentomatoes.com/m/bombshell_2019 )

Another film 'The Assistant' is a 2019 American drama film written, directed, produced, and edited by Australian filmmaker Kitty Green. In this film, Jane, a recent college graduate and aspiring film producer, just landed her dream job as a junior assistant to a powerful entertainment mogul. Her day is much like any other assistant -- making coffee, ordering lunch, arranging travel accommodations and taking phone messages. But as Jane follows her daily routine, she grows increasingly aware of the abuse that insidiously colors every aspect of her workday, an accumulation of degradations against which she decides to take a stand. (Source: Google)

Bollywood has come up with a courtroom drama movie 'Section 375' written by Manish Gupta and directed by Ajay Bahl, to deal with a case based on Section 375 of the Indian Penal Code laws in India. The plot of this movie is-"Notable film director Rohan Khurana (Rahul Bhat) is arrested and convicted by a sessions court after assistant costume designer Anjali Dangle (Meera Chopra) accuses him of rape. In the High Court, senior and talented criminal barrister Tarun Saluja (Akshaye Khanna) works hard to punch holes in the accuser’s claims, while Hiral Gandhi (Richa Chadda), a utopian and fervent lawyer fighting her first big case, who was once Saluja's trainee, serves as the prosecutor and defence barrister of the claimed victim. Tarun goes by his principle Law is a fact, Justice is abstract and believes that a lawyer should not get emotionally involved in a case or get into an ethical debate. At a seminar in a flashback, also attended by Hiral, he surmises how justice is left out without proper defence, noting that the pursuit of justice is nothing but a career opportunity for the defence lawyer, prosecution & the judges as well. He summaries this with his line " We're in the business of law, not of Justice". This is completely contrary to Hiral's attitude, as she gets passionately involved in her pursuit to deliver justice. For this very reason, she had to quit Tarun's law firm in the past.

Tarun in his cross-examination exposes tampering of evidence, lies and facts hidden by key witnesses. He proposes the theory that Anjali had a consensual relation with Rohan which started with the pressure of retaining her job, but with time she got emotionally involved in the relationship. Later, when she realises that Rohan is only interested in a physical relationship with her whereas she was expecting him to be her life partner, there is a big argument between the two on this issue. Rohan belittles her and tells her that without him her career is over. Later, Rohan throws her out of his second flat where they pursued their relationship. After a couple of days, Anjali apologises to Rohan & they rekindle their relationship. Later in the day, she reports this incident as rape to police.

Insisting that it is a case of an affair gone sour, Tarun points out that the law does not regard consensual physical relations as rape. Hiral argues that though a couple may have had a consensual relationship in the past, any subsequent sexual encounter without consent of the girl is rape. The case disputes the legal provisions of the penal code 375 that defines conditions under which a sexual offence can be defined as rape.

The judges are put in a tough spot because on one hand, it is clear that Anjali had filed this case to avenge her humiliation, and on the other hand, there is a strong public perception that rich and influential people are exploiting the underprivileged. The two judges deliberate on the case in their chamber. A judgement in favour of Tarun would badly reflect on their credentials, despite circumstantial evidence clearly pointing to fake rape charges. One of the judges peeks from the balcony and sees protests against the accused going out of control, and it is clear what their judgement would be.

The bench, while delivering the verdict accepts the merit of the case presented by Tarun, but public sentiment forces the bench to strictly go by the book and deliver the judgment in line with popular opinion. The judges uphold the session court judgement which states that since there is no evidence of consent or force for this particular incident, the statement of the victim is considered as paramount evidence. Rohan's wife Kainaz indicates to him that she will not aid him anymore, and leaves. Tarun promises Rohan that he will approach the High Court immediately. Rohan is taken to prison, and Anjali confesses in secret to Hiral that what Tarun had said in the court was true and she did this only to get revenge at Rohan. Hiral is shocked by this, and is later invited for dinner by Tarun's family. Tarun once again reminds her "We're in the business of law, not of Justice", a principle she has now truly understood."

In the context of the issues raised by the movie, some critical analysis on the IPC 375 and recent amendments have been studied. The key questions or issues raised are-

1. How to deal with the accusations made by an employee about sexual harassment at the workplace.

2. How to balance between the Personal relationships grown in the context of a Professional Career.

3. The agony of a victim in the path of getting justice in such harassment or rape cases. 

4. Cases of false accusations, misuse of Section-375

5. How India dealing with the sexual harassment at workplace cases: the laid out practice. 

The International Labour Organisation (ILO) defines sexual harassment as unwelcome sexual advances or verbal or physical conduct of a sexual nature that has the effect of unreasonably interfering with a individual's work performance or creating an intimidating, hostile, abusive or offensive working environment.

HOW DOES A SEXUAL HARASSMENT CASE PROCEED TO THE COURT?

If we look at 2016, there were 34,186 cases for investigation by police, which could complete inquiry in 75.9% of these cases. Of the total 34,186, chargesheets were filed in 67.3% of the cases, which were sent for trial. Only 7,665 trials were completed during the year, which was 22% of the total cases investigated by police. The year saw 2,295 convictions, which was only 6.6% of the total cases that the police was supposed to investigate. If one calculates the conviction rate, then 29.9% of the total 7,665 cases in which trial was completed ended in conviction.

(source: https://timesofindia.indiatimes.com/india/9-of-10-sexual-harassment-plaints-proven-to-be-true/articleshow/66310977.cms ) 

HOW WIDESPREAD IS THE PROBLEM?

As of mid October, more than 100 people have been called out in India's unfolding #MeToo moment. In US, where the movement on twitter started last year, more than 900 people have been named till October, 2018. While many have questioned whether the problem is as widespread as is being claimed, analysis of the data suggests that this could actually be the tip of the iceberg, as claimed by proponents. On an average, in the past three years, every hour has witnessed three cases of sexual harassment reported to the police. It has been observed that because of the social stigma of victim-shaming, a large majority of cases often go unreported. A 2018 survey by Stop Street Harassment (SSH), a non-profit, shows that 81% of women and 43% of men reported experiencing some form of sexual harassment and/or assault in their lifetime. The National Sexual Violence Resource Centre (NSVRC), another American organisation, estimates that 63% of sexual assaults are never reported to police.

What proportion of these cases are false allegations?

A study of eight US communities said that the prevalence of false reporting is between 2% and 10%. The data for India shows that false cases constituted 4% of sexual harassment cases disposed of by police in 2016. This indicates that nine out of every 10 complaints of sexual harassment are true.

Let's look into IPC 375 and some definitions:

What is Section 375 of the Indian Penal Code

 Section 375 of the Indian Penal Code defines rape as "sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation or fraud or at a time when she has been intoxicated or duped, or is of unsound mental health and in any case if she is under 18 years of age."  

 It's rape if it falls under following categories:

 1. Against her will.

 2. Without her consent.

 3. With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

4. With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

 5. With her consent, when, at the time of giving such a consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

 6. With or without her consent, when she is under sixteen years of age. Explanation: Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

 Consent under Section 375

 Consent is defined as clear, voluntary communication that the woman gives for a certain sexual act. Marital rape is an exception to giving consent as it is not a crime under the Indian Penal Code, as long as the woman is above 18 years of age.

 Exceptions to Section 375

 Sexual intercourse by a man with his own wife who is above the age of 18, is not sexual assault.

 Amendment to Section 375 of IPC

 The Criminal Law (Amendment) Act, 2013 or the Nirbhaya Act, was passed in Parliament to amend Section 375. To remove ambiguity in the earlier law and provide for strict punishment in cases of rarest cases of sexual violence, the legislation was expanded to define acts like penetration of penis into vagina, urethra, anus or mouth, or any object or any part of body to any extent into the aforesaid woman body parts (or making another person do so), as constituting an offence of sexual assault. Applying mouth or touching private parts were also classified as offences of sexual assault.

 Punishment

 Except in certain aggravated situations, the punishment will be imprisonment of not less than seven years but it may extend to imprisonment for life, and shall also be liable to fine. In aggravated situations, punishment will be rigorous imprisonment for a term which shall not be less than 10 years but which may extend to imprisonment for life, and shall also be liable to fine.

(Source: https://www.business-standard.com/about/what-is-section-375)

Criminal Law Amendment Bill, 2019 was introduced in the Rajya Sabha by way of a Private Members’ Bill by K T S Tulsi, to make the offence of rape, gender-neutral. The law as it exists in the present form recognizes only a woman as a victim of rape. After the judgment of the Supreme Court in Navtej Johar vs Union of India, which read down Section 377 to not include consensual sexual intercourse between individuals of the same sex, and/or transgenders, coupled with the language of Section 375 of the Indian Penal Code (IPC) which expressly states that only a woman can be a victim of rape, the only remedy for a rape victim other than a heterosexual woman, lies under Section 377 of the Indian Penal Code, 1860 which criminalizes unnatural sex. This becomes problematic since the law as laid down by the Supreme Court recognizes consensual sex between two individuals as legal, irrespective of their sex. If this is the case, non-consensual sex has to be treated as rape and not an unnatural sexual offence. Therefore, the reasoning for making the offence of rape gender-neutral is based on the following: Recognizing that individuals who are homosexual and/or belong to the transgender community can be victims of rape; and Recognizing that only a “man” cannot be a perpetrator of a sexual offence. Let us examine the bill, while keeping this in mind, we shall examine the bill. Highlights of the Bill Introduction of definition of “Modesty”:The bill proposes to add the definition of “modesty” to Section 2 of the Indian Penal Code, 1860 describing it as an attribute that attaches to the personality with regard to the commonly held belief of morality, decency and integrity of speech, behaviour, in any man, woman or transgender. It has to be noted though, this appears to be an error in drafting since Section 2 of the IPC deals with jurisdiction and Section 6 is the appropriate section for definitions. Amendment to Sections 354 – 354D of IPC: Section 354 to 354D which define the offences of outraging of modesty, sexual harassment, criminal intent to disrobe, voyeurism and stalking have been modified to the extent that the sex of the perpetrator of the offence and the victim is irrelevant. Amendment to Section 375 of IPC: The Bill proposes to replace pronouns referencing “men” and ‘women’ specifically with words such as “any person” or “other person” effectively making the offence of rape gender-neutral. However, sub-clause (fourthly) according to which consent under the impression that the man is her husband is rape has not been modified and rightly so. The Bill also proposes to replace the words ‘penis’ and ‘vagina’ with the phrase ‘genital’ which is subsequently defined under Explanation 1 to mean the penis and vagina. However, this change will not apply to sub-clause (b) which states that the penetration of any object not being a penis shall amount to rape as well. Insertion of Section 375A:The Bill proposes the insertion of a new section that defines the offence of sexual assault as the intentional touching of the genitals, anus or breasts or making one person touch such parts of the other person without consent or the use of unwelcome words, gestures which creates an “unwelcome threat of actionable nature” with a punishment of rigorous imprisonment of up to three years and/or fine. Explanation 1 adopts the definition of genitals and Explanation 2 adopts the meaning of “consent” (excluding the proviso) from the new proposed Section 375. Explanation 3 to this section explains the word “touches” as touching of sexual nature without consent and in the absence of reasonable belief that the victim has consent for the same. Sections 376A, 376A, 376C & 376D of IPC: This Bill proposes to make the offences listed under these sections gender neutral as well, apart from specific sub-sections related to the rape of women and children in custody. Apart from this, the appropriate sections of the Code of Criminal Procedure, 1873 and Indian Evidence Act, 1872 are amended to include the new proposed Section 375A. ANAYLYSIS: The Bill has evaded possible problems that may have arisen with the definition of transgender, by not defining it at all, especially due to conflicts that may arise with the proposed Transgender Bill. Instead, it has just added a category called ‘other’ which includes transgenders. This way, anyone who does not identify with one of the binaries can still have recourse under the amended IPC, irrespective of the restrictive definition of transgender that may be introduced in other legislations. The most problematic aspect of this Bill is its attempt to define the term modesty. The definition of ‘modesty’ that is sought to be inserted is one that is very subjective based on commonly held beliefs of people. The rationale for including this definition is unclear since it creates confusion regarding what constitutes modesty given that it bases modesty on very subjective beliefs of decency. The Supreme Court in the case of Tarkeshwar Sahu vs State of Bihar, in the context of Section 354 of the IPC had defined modesty of a woman by stating that the essence of a woman’s modesty is her sex. By this standard, any act against a woman that interferes with her bodily integrity solely because of her sex would amount to an offence under Section 354. It would have been appropriate if the same standard which is absolute in interpretation be followed. While the introduction of the offence of sexual assault must be appreciated, there are certain problems with the terminology that has been used in the new proposed Section 375A. Firstly, what constitutes an “unwelcome actionable threat” is unclear from the provision. Unfortunately, vague terminology has been used to discern the commission of an offence since the perception of what constitutes an “actionable threat” can be extremely varied in any person who is in the fear of being sexually assaulted. Secondly, while it does adopt the definition of “consent” under Explanation 2 from Section 375 which also defines consent to include any form of non-verbal communication, communicates a willingness to participate in the specific act. However, it has not adopted the proviso from Section 375 which categorically stated that mere non-resistance of penetration shall not amount to consent. In today’s day and age, there is no apparent reason to deliberately leave a lacuna in the law. It is thus necessary to include a corollary proviso here as well to the effect that non-resistance to touching, shall not amount as consent. Thirdly, Explanation 3 while defining “touches” states that the word shall mean touching of a sexual nature without the consent of the victim and in absence of a reasonable belief that the victim has consented for the same. The problematic definition of consent as explained above coupled with the use of the phrase “reasonable belief” entirely dilutes the essence of the section. The definition of consent is as it is an empty definition under the new section and the phrase “reasonable belief that..” acts like an umbrella that can be used to justify any form of assault by using it as a defence. Alternatively, the Bill should have just adopted an analogous proviso to Explanation 2 and not included Explanation 3 at all. After the refusal of the Supreme Court to make rape a gender-neutral offence stating that it is the job of the Parliament, the thought of introducing a Bill to such effect is a welcome measure. However, it is necessary that these changes are implemented systematically and holistically so that do not result in the exclusion or creation of laws that are not sufficient to tackle the various forms of sexual assault. It also needs to be pointed out that since an amendment to Section 375 of the IPC was being proposed, marital rape could have been criminalized as well. With the increase in the discourse on such topics, it is pertinent that the Legislature pulls its socks up and acts mindfully while implementing these transformative reforms in criminal law.

(Source: https://www.theleaflet.in/criminal-law-amendment-bill-2019-a-critical-analysis/)

Vishaka guidelines

Almost 15 years before the implementation of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 it was the Vishaka guidelines which had put the onus of safe working environment on the employer. In 1997, the Supreme Court formulated the Vishaka guidelines making it mandatory for organisations, whether working in the private or public sector to establish a mechanism for redressal of sexual harassment complaints. But what triggered the apex court to formulate these extensive guidelines on workplace sexual harassment? Why is the onus on the employer? And who is Vishaka? Before we delve into the details, let’s look at the backdrop of this case. Bhanwari Devi (Vishaka & Ors. V/S State of Rajasthan, AIR 1997 Sc 3011) Case Bhanwari Devi is an Indian social worker from Bhateri, Rajasthan who was gang-raped while working under the Rajasthan government’s Women’s Development Programme. As a part of the program, she had to spread awareness about hygiene, family planning and the necessity of educating girls, along with campaigning against female foeticide, infanticide, dowry and child marriages. As a part of her duty, she was stopping the wedding of a nine-month-old Gujjar daughter of the Ramkaran Gujjars. To her dismay, she was put forward to social punishment for stopping the marriage. She was gang-raped by Ramkaran Gujjar and his five friends in front of her husband. Subsequently, Bhanwari Devi filed a criminal complaint against the offenders. Unfortunately, the accused were acquitted by a trial court, because everyone, including the village authorities, doctors and the police, dismissed her situation. This injustice inspired several women’s groups and NGOs to file public interest litigation (PIL) in the Supreme Court under the collective platform of Vishaka. They demanded justice for Bhanwari Devi and urged action against sexual harassment at the workplace. Vishaka Guidelines The court, for the first time, drew upon an international human rights law instrument, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), to pass a set of guidelines that are popularly known as Vishaka Guidelines, which include: The incident reveals the hazards to which a working woman may be exposed while working on a job. The court observed that it is the duty of an employer to protect the safety of their employees and other people who might be affected by their business. The court said that such an incident results in a violation of the fundamental rights of ‘Gender Equality’ and the ’Right of Life and Liberty’. It is a clear violation of the rights under Articles 14, 15 and 21 of the Constitution. The court issued a writ of mandamus and the following directions for prevention – It shall be the duty of the employer or other responsible persons in workplaces or other institutions to prevent sexual harassment and to provide for the resolution and settlement mechanism. The court defined what constitutes sexual harassment. For this purpose, sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as: a) physical contact and advances; b) a demand or request for sexual favours; c) sexually coloured remarks; d) showing pornography; e) any other unwelcome physical verbal or non-verbal conduct of sexual nature. 3. Preventive Steps: All employers should take appropriate steps to prevent sexual harassment. Without prejudice to the generality of this obligation, they should take the following steps: (a) Express prohibition of sexual harassment as defined above at the workplace should be notified, published and circulated in appropriate ways. (b) The Rules/Regulations of Government and Public Sector bodies relating to conduct and discipline should include rules/regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender. (c) As regards private employers steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946. (d) Appropriate work conditions should be provided in respect of work, leisure, health, and hygiene to further ensure that there is no hostile environment towards women at workplaces. 4. Criminal Proceedings: Where such conduct amounts to a specific offence under the Indian Penal Code or under any other law the employer shall initiate appropriate action as per the law. The employer should file or assist the aggrieved in filing the complaint with the appropriate authority. In particular, it should ensure that victims or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment. The victims of sexual harassment should have the option to seek the transfer of the perpetrator or their own transfer. 5. Disciplinary Action: Where such conduct amounts to misconduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules. 6. Complaint Mechanism: Whether or not such conduct constitutes an offence under law or a breach of the service rules, an appropriate complaint mechanism should be created in the employer’s organization for effective redressal of such complaints. Such a complaint mechanism should ensure the time-bound treatment of complaints. 7. Complaints Committee: The complaint mechanism, referred to in point (6) above, should be adequate to provide, where necessary, a Complaints Committee, a special counselor or other support services, including the maintenance of confidentiality. The Complaints Committee should be headed by a woman and not less than half of its members should be women. Further, to prevent the possibility of any under pressure or influence from senior levels, such Complaints Committee should involve a third party, either NGO or other bodies who are familiar with the issue of sexual harassment. The Complaints Committee must make an annual report to the government department concerned with the complaints and actions taken by them. The employers and person in charge will also report on the compliance with the aforesaid guidelines including on the reports of the Complaints Committee to the Government department. 8. Workers’ Initiative: Employees should be allowed to raise issues of sexual harassment at workers’ meetings and in other appropriate forum and it should be affirmatively discussed in Employer-Employee Meetings. 9. Awareness: Awareness of the rights of female employees in this regard should be created in particular by prominently suitably notifying the guidelines. 10. Where sexual harassment occurs as a result of an act or omission by any third party or an outsider, the employer and person in charge will take all steps necessary and reasonable to assist the affected person in terms of support and preventive action. 11. The Central/State governments are requested to consider adopting suitable measures including legislation to ensure that the guidelines laid down by this order are also observed by the employers in Private Sector. The Vishaka guidelines have laid the foundation for the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. As per the current regime, employers with 10 or more employees are required to constitute an internal complaints committee, conduct training, and awareness sessions, etc. Ungender has the expertise and resources to help you comply with the Act, conduct training sessions, constitute internal complaints committees(ICC) for all your offices and find an external member for your ICC.

(Source: https://www.ungender.in/here-is-everything-you-need-to-know-about-vishaka-guidelines/) Few High Profile cases of India:

 Let's looks at seven prominent sexual harassment cases in the past that involved influential Indians:

1.KPS Gill: Senior IAS officer Rupan Deol Bajaj complained in 1988 that former Punjab director general of police, KPS Gill, touched her inappropriately at a party.

Status: Trial court convicted Gill in 1996. Supreme Court upheld the decision in 2005 but the former top cop didn’t serve any jail time.

2. 2.Phaneesh Murthy: One of India’s best known software executives and a rising star at the time, Phaneesh Murthy had to resign from Infosys in 2002 after his secretary Reka Maximovitch accused him of sexual harassment.

Status: Infosys settled for $3 million outside court. Murthy was also sacked by an American IT firm in 2013 on sexual harassment charges.

3.Gopal Kanda: In a 2012 suicide note, 23-year-old airhostess Geetika Sharma charged Gopal Kanda, a former Haryana minister, of sexually harassing her and forcing her to take her life.

Status: The case is being tried in the Delhi high court

4.David Davidar: The Indian-born author was sacked as head of Penguin Canada in 2010 following allegations by another firm employee, Lisa Rundle, that Davidar sexually harassed her for three years, assaulting her in 2009 during the Frankfurt Book Fair.

Status: Out-of-court settlement in 2010

5.Shiamak Davar: The Bollywood choreographer was sued by two Vancouver-based former students of his dance school for sexual harassment in Canada last year. The two men accused Davar of “controlling” them through a spiritual organisation and “grooming” them into “sexual submission”.

Status: Hearings on in Canada

6.Asok Kumar Ganguly: The former Supreme Court judge stepped down as head of the West Bengal human rights commission in 2014 after a law intern accused him of sexually harassing her at a hotel room.

Status: A three-member Supreme Court panel indicted Ganguly for “unwelcome behaviour” and “conduct of sexual nature”, prompting his resignation

7.Tarun Tejpal: Possibly the most notorious case of them all. The former Tehelka chief was accused of sexual assault and rape during a Goa event by a former colleague. The case grabbed international headlines after allegations that staffers at Tehelka had tried to bury the complaint.

Status: The case is being heard in a Goa court. Tarun Tejpal was jailed and now on bail.

(source: https://www.hindustantimes.com/india/it-s-a-man-s-world-7-sexual-harassment-cases-that-rocked-india/story-TJ4sebHtBlmn2oEkJpJCHO.html)

Landmark judgements on Sexual Harassment in India:
Click: https://www.myadvo.in/blog/landmark-judgements-sexual-harassment-india/