Assault or Criminal Force to Woman, Sexual Harassment, Voyeurism and Stalking (Ss 354, 354A-D) IPC

Section 354 - Assault or criminal force to woman with intent to outrage her modesty - Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished....

Ingredients

1. The offender must assault or use criminal force to any woman.

2. Such assault or criminal force must be used with the intention or knowledge of outraging the modesty of the woman

3. When the above ingredients are satisfied, there will be assault or criminal force to woman with intent to outrage her modesty.

All You Need To Know About The Bhanwari Devi Case That Led To The Formation Of The Vishakha Guidelines

This was published in Indiatimes

Sexual assault is a serious offense which has destroyed the reputation of many a public figure. Whether it's ex-TERI Chief Rakesh Pachauri here in India or comedian Bill Cosby in the United States, the offenders are swiftly isolated from the society, no matter how high they sit, and are brought to stand trial in the court of justice. However, it wasn’t always this way. The case of Vishakha v. State of Rajasthan in 1992 was the landmark case where the Supreme Court dealt with the question of safety of women from any kind of sexual harassment at the workplace and laid down detailed guidelines for the same.

Bhanwari Devi was a Saathin working in the Women’s Development Project of the Rajasthan Government. The state government had recently launched a campaign against child marriages and Bhanwari Devi took an active part in spreading the influence of this campaign in her area. She tried to stop the marriage of a one-year-old girl and was furiously resisted by the villagers. In 1992, she was raped by five villagers in front of her husband for her temerity to stop an evil practice from spreading further. The district court acquitted all the five accused.

The matter came before the Supreme Court via a Public Interest Litigation (PIL) filed by a group of NGOs by the name of “Vishakha” in which the petitioners urged for judicial intervention to make workplaces safer for women due to the legislative inactivity in this regard. The Supreme Court observed that India was already a signatory to Convention on elimination of All Forms of Discrimination Against Women (CEDAW) and held that international conventions are to be read into the fundamental rights to enlarge their scope and advance their objective. It thus read the provisions of CEDAW (signed by India in 1980) in Articles 14, 15, 19 and 21 of the Constitution and laid down binding guidelines to be followed by every private and public sector employer to ensure the dignity and safety of women in the place of employment.

This was a landmark step by the apex court as it strayed into the territory of the executive by issuing guidelines which were binding, and hence, were law. The judiciary cannot make the laws, it can only interpret them, but in Vishakha vs State of Rajasthan, the Supreme Court resisted such orthodox theoretical interpretation of separation of powers and proved that it would not hesitate to occupy the space vacated by the legislature by its inaction, to meet the ends of justice. For this, the Supreme Court earned a fair share of criticism with some critics citing this judgment as an example of judicial overreach.

However, the passage of time has proved that the Supreme Court was correct in intervening in this regard. Today, due to the power and reach of social media and other information networks, sexual harassment has emerged as a very serious issue in our public discourse. However, back in 1992, it had not acquired the sense of seriousness that it commands today. Fundamental Rights were supposed to be enforceable ‘vertically’ i.e. an individual could only enforce them against the state. But through this judgment, the apex court ruled that in some worthy instances, fundamental rights were also enforceable ‘horizontally’ i.e. by one individual against another.

While there have been numerous cases where women have secured justice and a safer work environment for themselves by pursuing litigation against employers indulging in sexual harassment, there have also been some cases where this shield accorded to women has been misused to file frivolous cases and to bargain for higher pay and promotions. Therefore these guidelines have come to be known as a “double edged sword” which can secure justice for worthy litigants and can also cause havoc for those abusing it to secure petty personal gains.

Meanwhile, the legislature has sought to shake off its decades-old attitude of treating such issues regarding the safety and dignity of women lightly. This is less because of a genuine awareness regarding such issues and more because of the fear of ceding their power to the judiciary. The 2012 Nirbhaya Gang Rape case has galvanised public support for enacting tough measures against the culprits indulging in this sort of sexually predatory behavior.

It is to be noted that even though more than 20 years after the judgment in the Vishakha case was passed, the parliament has still not passed a comprehensive legislation directed at combating sexual harassment against women at the workplace. It can only be hoped that our parliamentarians heed the developments in this regard and take urgent steps to ensure a welcoming environment for women in both public and private spaces of employment.

Are Women 'Secondary Citizens'?

First Published in Youth Ki Awaaz

When a government fails to protect the honour and dignity of its women, it not only degrades them to the status of second class citizens, but in this process, it also reduces the constitutional provisions guaranteeing various rights and freedoms to all its citizens, to sorry figments of imagination.

In the last one month, over 19 different cases of rape have been recorded in the northern state of Haryana, which is infamous for having the lowest sex ratio among all the states in India. The rapists include teenagers, security personnel, neighbours or just random strangers. Like the rapists, the political opinion regarding these rapes has been varied and bizarre. Khap Panchayats, the rural kangaroo courts that seek to maintain the “honour” of the community even when it involves justifying “honour killings”, came out with the bizarre theory of lowering the age of marriage for girls to “protect” them from such incidents. Lending an intellectual bent to this ridiculous piece of “suggestion”, Om Prakash Chautala, the former Chief Minister and the head of the powerful opposition party INLD, explained:

“Look back at the past, the Mughal sultanate in this country used to misbehave with women and used to kidnap them. In order to prevent that people started getting their young girls married early so that no one does anything wrong to them… I have seen girls getting married at tender age; the same situation is back again.”

Another Congress leader, Dharamveer Goyal, eager to present his understanding of the whole scenario, suggested that 90 per cent of rapes were consensual:

“The girl gets into an affair with a boy and she goes with him without knowing that he is of criminal mindset. It’s not the state government which is responsible for rapes, in fact in most of the cases its consensual sex. In 90 per cent cases, the girls and women initially accompany boys on their own and are later trapped in gang rape by criminals” 

Apart from being sexist, horribly insidious and callously irresponsible, these comments are also a crude reminder of the mentality towards rape, molestation and other such crimes directed towards a female’s body in particular and the attitude towards women in general. To then expect a safe and secure environment where women have an equal right to opportunity to achieve their desired goals would be to expect too much.

Such mindsets and attitudes are not unique to the Indian polity. In fact, these are in sync with the phenomenon of global misogyny that the world has witnessed in recent days. Just day before yesterday, the Australian Prime Minister Julia Gillard thundered in the Australian House of Representatives against the Leader of Opposition Tony Abbott, who had ironically demanded the resignation of the Speaker of the house of representatives (after he was found to have sent sexist texts to a former staff member), when he himself had been going around passing loose remarks about the Prime Minister and the women in Australia as a whole. In the United States, amid the flurry of election campaign, Rep. Todd Akin, in a bid to endear himself to the voters, earned the wrath of the media when he suggested that “legitimate rape” rarely resulted in pregnancy. Rep. Roger Rivard wasted no time in jumping to Akin’s bandwagon when he opined in a newspaper that “some girls rape easy”.

The irony amid all this slur of misogyny being vomited by political representatives from all across the spectrum was that just days before, on October 11, the world had celebrated its first “International Day of the Girl Child”, which reaffirmed the global pledge to “end gender stereotypes, discrimination, violence, and economic disparities that disproportionately affect girls.” In the light of these remarks, the celebration seems like a bad satire on the state of women all over the world.

One of the victims of rape in Haryana was just 7 years old. In any other part of the world, even in Australia and the United States, this single incident would have been enough to shame a government to death. However, in our country, this is just another rape, just another flash of bulbs and we are back to normal. It is with profound shame that one admits that when a woman is raped, it is not only an assault on her body, but a sad commentary on the vulnerability of women in an unsecure and predatory society and the government’s inability and also collusion, in removing that sense of insecurity.

Sexual assault of any kind snatches away from a woman, her inalienable right to pursue her desired objectives in life, by traumatizing her psychologically and shaming her in the society. It reduces her chances of being treated with respect, with dignity, with equality and without any prejudice. A rape increases her chances of getting pregnant and burdened with the responsibility of motherhood, without fulfilling the pre requisite avenues in life which would ensure a better and secure childhood and future for her children. In effect, a rape also snatches away the rights of an individual who has not yet been born.

The National Crime Records Bureau statistics suggest that there is an incident of rape every 22 minutes in the country and that instances of rape have gone up by 873 per cent between 1971 and 2011. Seen as crude statistics, these mindboggling numbers only makes one feel helpless and incompetent. However, the sheer gravity of the situation demands no less than a sincere effort to beef up the law and order and increase awareness about the rights and liberties of the womenfolk. Such an effort would need to attack, first and foremost, the institutions and practices which subordinate women to men.

The sense of complacency and neglect with which issues of gender equality and gender rights are treated only signals a demise of gender sensitivity in Indian politics and call for drastic action. The prevailing state of affairs in the country can only be summed up in the words of Faiz who said:

“Nisar mein teri galiyon kay aye watan kay jahan

Chali hai rasm kay koi na sar utha kay chaley

jo koii chaahanewaalaa tawaaf ko nikale

nazar churaa ke chale, jism-o-jaan bachaa ke chale”

(My salutations to thy sacred streets, O beloved nation!

Where a tradition has been invented- that none shall walk with his head held high

If at all one takes a walk, a pilgrimage

One must walk, eyes lowered, the body crouched in fear)