Critical Analysis of Sexual Harassment under IPC

logoCritical Analysis of Sexual Harassment under IPC

INTRODUCTION

The terms sexual harassment has been defined as – an unwelcome sexually determined behavior (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[1]

This offence of sexual harassment has not been dealt anywhere specifically under the Indian Penal Code. However, following the definition stated above, we find that the offence which falls within the bracket of this definition has been dealt under section 294, section 354 and section 509 of the IPC.

Section 294 deals with obscene acts and songs. Section 354 deals with the case of assault or criminal force to women with intent to outrage her modesty. Section 509 talks about words, gestures or act intended to insult the modesty of a woman.

In this project, the focus will be on section 294 and section 509 of the IPC. Firstly, the concept of these two sections has been explained in the project and then an analysis of the two has been presented in order to develop a broader understanding of the offences under these two sections.

 

SECTION 509 –

This section says that- Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, of that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both.

This section is referred as the Eve Teasing Section. The object of the section is to protect the modesty and chastity of a woman.

The essential elements of the section are:

  1. Accused uttered any word, made any sound or made a gesture or exhibits any object or intrude the privacy.
  2. Accused intended that words uttered, sound made or gesture shown or object exhibited seen or heard by the woman.
  3. It has to be directed towards a woman or group of women[2].

There is a difference between Section 354 and 509. Section 509 specifically talks about the insult and modesty of the women whereas Section 354 deals with outraging the modesty of the women.

Now the question that comes for consideration is what is meant by the term modesty. The term has not been defined in IPC. In the famous case of Major Singh Lachhman Singh vs The State on 30 May, 1963[3] ,the Shorter Oxford English Dictionary (Third Edition) definition of the word “modest” in relation to woman has been taken. It says that modesty is “Decorous in manner and conduct; not forward or lewd; shame fast”.  Hence, when used for men, it means the quality of being modest, and in relation to woman, “womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct”.

Webster’s New International Dictionary of the English Language (Second Edition) amplifies the definition of “Modest” by adding “observing the proprieties; free from undue familiarity, indecency, or lewdness’.

In the case Swapna Barman Vs. Subir Das[4] , “Under Section 509 that the word ‘modesty’ does not lead only to the contemplation of sexual relationship of an indecent character. The section includes indecency, but does not exclude all other acts falling short of downright indenency.”

Recently in 2007 the SC defined Modesty as “The essence of a woman’s modesty is her sex.”[5]

An insult to the modesty of the woman is an essential ingredient of this offence. If a man exposes his person in an indecent way or use obscene words which he intend that it should be heard or his obscene drawings should be seen, he is held to be an offender under s.509 of IPC. The intention to insult the modesty of woman must be coupled with the fact that the insult is caused. It means that the other party understands that he is insulted. If a person intrudes upon the privacy of a woman, then also he is considered to be liable under this section.[6]

The intention to insult the modesty is very important as held in Santha vs State Of Kerala on 16 December, 2005[7]. And even when a man exposes his private organs to a woman, he can also be charged under section 509 of IPC. The offence may occur in private or public place.

As per the Justice Verma Committee Report[8], certain modifications should be done in Section 509 of the IPC. The Committee has suggested that use of words, acts or gestures that create an unwelcome threat of a sexual nature should be termed as sexual assault and be punishable for 1 year imprisonment or fine or both.

Recently the criminal law (amendment) ordinance, 2013 was passed in which section 509 of the Penal Code, for the words “shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both”, the words “shall be punished with simple imprisonment for a term which may extend to three years and shall also be liable to fine” shall be substituted.[9]

 

SECTION 294

Section 294 of the act says that- whoever to the annoyance of others-

a.         Does any obscene act in any public place, or

b.         Sings, recites or utters any obscene song, ballad or words, in or near any public place,

Shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both.

The key ingredients of this section are:

  1. The accused-
    1. Did some act,
    2. Sang, recited or uttered any ballad;
    3. That such act, singing etc. was obscene
    4. That it was done in public place
    5. It caused annoyance to others.

This section is not gender specific, and the offender as well as the victim can be both male and female. The essential condition to be satisfied is that the obscene act or song must cause annoyance. Since annoyance is a mental faculty of a person, therefore it has to be derived from the facts and circumstances of the case. In other words, the facts and circumstance has to be considered in order to conclude whether the act caused any annoyance or no.

Now, with regard to the concept and meaning of the word ‘obscene’, it keeps varying from place to place. It differs in accordance to the circumstances- cultural, social and economical. In the Indian context, even kissing in public place by a married couple is considered to be obscene, and the persons doing so can be charged with doing indecent act in public place.[10]  Whereas the same act in western countries is absolutely acceptable. Where the accused addressed openly two respectable girls who were strangers to him, in amorous words suggestive of illicit sex relations with them and asked them to go along with him on his rickshaw, he was held to have committed an obscene act.[11]

Further in the case of K.P Mohammad v. State of Kerala[12], the court held that the performance in a public place, such as hotel and restaurant of cabaret dance and devoid of nudity and obscenity judged according to the standards of our country, is permissible and is not in any way liable to be banned. This judgement shows a very controversial stand quite contrary to the general belief held by the people of our country. However, the same view was held by the Bombay HC in a judgement in April 2005, when they quashed the proceedings against a dance bar owner ruling that section 294 IPC would be attracted only when annoyance is caused to others.[13]

 

ANALYSIS

If we analyze the definition of the term sexual harassment, we find that the key ingredients covered under the definition have been dealt under section 294 and section 509 of the IPC. The definition of sexual harassment talks about ‘sexually coloured remarks’ and ‘pornography’.   Now this sexually colored remark can either be verbal or non- verbal. This gets covered under section 294, as the section talks about any ‘song’(verbal) or ‘act’(non-verbal) which are obscene. Obscenity comes in various forms- by way of talking or by gestures. Obscenity also comes in through pornography, which is an element of sexual harassment. This is how section 294 covers the offense of sexual harassment.

Section 509 specifically talks about infringing the modesty of women. If seen in general parlance then sexual harassment of a woman directly infringes the modesty of a woman. This harassment can come in the form of ‘words’, ‘gesture’, ‘act’ or ‘exhibit’ of objects. This gets covered by section 509.

Thus, the two sections cover the offense of sexual harassment of woman.

However, the two sections have a key loophole with reference to the punishment. Section 294 prescribes punishment for 3 months at maximum. Section 509 prescribes simple imprisonment for maximum of one year. However, seeing the present scenario of India, where the offense of sexual harassment has increased by leaps and bounds, and the offenders managing to escape the liability because of such meager punishment, we cannot afford to stay with such reformative punishment. Rather, steps need to be taken to enhance rigorous punishment which will have deterrence effect on the future offender.

CONCLUSION

After going through  the project, we reach to a conclusion that the both the sections and their elements need to be given a broader interpretation in order to deal with rising offence of sexual harassment of woman. With the degradation of the Indian society, both the sections should be enforced and applied so as to create a deterrence effect on the society.



[1]Vishaka and ors v. State of Rajasthan JT 1997 (7) SC 384

[2] Section 509 IPC criminalises a ‘word, gesture or act intended to insult the modesty of a woman’ and in order to establish this offence it is necessary to show that the modesty of a particular woman or a readily identifiable group of women has been insulted by a spoken word, gesture or physical act as held in S. Khushboo Vs. Kanniammal and Anr (AIR2010SC3196)

[3]  AIR 1963 P H 443

[4] (2004)1GLR168

[5] http://articles.timesofindia.indiatimes.com/2007-03-21/india/27870988_1_modesty-outraging-definition

[6]http://www.lawyersclubindia.com/articles/Sexual-harrasment-under-India-penal-code-1860-A-critical-analysis-3067.asp#.UWqe56JHJLw

[7] 2006 (1) KLT 249

[8]http://www.prsindia.org/uploads/media/Justice%20verma%20committee/js%20verma%20committe%20report.pdf

[9] http://mha.nic.in/pdfs/criminalLawAmndmt-040213.pdf

[10]   Times of India, December 22,2005 , p.8

[11] Zafar Ahmad, AIR 1963 All 105

[12]   1984 CrLJ 745

[13] Supra, see footnote 9

Cyber Stalking & the Impact of its Legislative provisions in India

PrachiShah

As there is advancement in technology, crime has also increased due to it. Technology and crime go hand in hand. Technology played an important role in the several bomb blasts which occurred worldwide. One of the important medium was computers in all these killings. Computers have been proved versatile. It helps from communication to spreading heinous viruses all over. The later part and more to it is spreading a lot nowadays. Computer crimes or say cyber crimes have increased a lot today. Various categories are explored under it, out of which one of them is cyber stalking. Stalking happens every day in the real world but when it comes to virtual world stalking has increased at a double rate because stalkers can easily target victims being anonymous via internet. It is safe in comparison to stalking in real world.

Cyber Stalking:-

The word stalking was not commonly known until various instances happened. The legal definition of stalking varies from country to country. Various definitions are available in several books, out of which it can be stated that the common elements are[i];

  • Repeated and unwanted behaviours whereby one individual attempts to contact another individual, and
  • The behaviour causes the victim to feel threatened or harassed.

Stalking has become a problem to women and children on a larger part in comparison to men. Women are threatened, vandalized, assaulted when it comes to real world but the same things happen when cyber stalking takes place. Obscenity also adds up with the, threatens and harassment. No doubt men also become the prey of the same but its lower when it comes to females. Children also undergo the same trauma by adult predators and pedophiles. The victim is normally a person who is less thorough regarding internet services and its applications. The stalker is generally a person who is a paranoid with no self-esteem. But the traits differ from one stalker to another. Some harass to seek revenge or some do so for their own pleasure. While some just to do it for playing a mischief.

Cyber stalking is potentially just as dangerous to the victim as a live stalker would be the front door.[ii]

The core areas where the stalking takes place are;

  1.  live chat rooms/flaming[iii],
  2.  e-mail,
  3. discussion forums and;
  4. message boards.

Talking about chat rooms, here the stalker harasses by way electronically sabotaging the victim. While in case on forums and message boards, the stalker does by posting obscene junk under the name, contact number and address of the victim thereby threatening the victim. Similar is the case when it comes to e-mail. Instead stalking on e-mails has increased at a greater pace. The prowler sends bullying mails, obscene pictures, spamming etc.

Legal Regime:-

Discussing about the legal regime in India, then there were no provisions regarding cyber stalking until 2008. The Information Technology Act, 2000 did not contain any provisions regarding this heinous crime but the amended Act in 2008 made it possible by recognising cyber stalking via Section 66A. Though on paper it’s a recognised crime, half of the society is still unaware about it. In the following article an effort has been made to confer about cyber stalking in relevance criminal law and the legislative provisions.

Starting with criminal law, there is no per se law regarding cyber stalking under Indian Penal Code. Though, Section 503-507 applies for stalking. Some of the cyber stalking elements should amount to criminal offences and should lead to prosecutable offence. At the same time other international countries have ample of laws on cyber stalking. Talking about USA, their first cyber stalking law went into effect in 1999 in California.[iv]Other countries have also started to include this crime into their legislations. India has grown tremendously in the internet industry. Though it has developed in context of technology but then the issues regarding have also increased. The Information Technology Act, 2000 did not recognise the term but due to Ritu Kohli’s case the amended Act of 2008 recognised Cyber Stalking. In a case, in 2003, Seema Khanna (name changed), an employee with an embassy in New Delhi, know that web surfing would lead to an invasion of her privacy. In an apparent case of cyber stalking, Khanna (32) received a series of e-mails from a man asking her to either pose in nude for him or pay Rs 1 lakh to him. In her complaint to Delhi Police, the woman said she started receiving these mails in the third week of November. The accused threatened Khanna that he would put her morphed pictures on display at sex websites, along with her telephone number and address. He also allegedly threatened to put up these pictures in her neighbourhood in southwest Delhi. “Initially, she ignored the mails, but soon she started receiving letters through post, repeating the same threat. She was forced to report the matter to the police,” said an officer with cyber crime cell. That, however, was not the end of her ordeal. The accused mailed the woman her photographs. The woman claimed these were the same photographs which she had kept in her mail folder. The police said the accused had hacked her e-mail password which enabled him to access the pictures. A preliminary inquiry into the complaint has revealed that the mails were sent to the victim from a cyber cafe in south Delhi. The police felt that the accused might be known to the victim as he seemed to know a lot about her. The cyber stalker can be booked under Section 509 of the IPC for outraging the modesty of a woman and also under the Information Technology Act, 2000. But the police admitted that IT Act, 2000 was not enough to deal with cyber stalking.[v]

Ritu Kohli’s case is the first case in India dealing with cyber stalking. The case in which issues were raised as to what is cyber stalking? Why don’t’ we have laws regarding it?  Recently, the Delhi Police arrested Manish Kathuria the culprit of the case. In the said case, Manish was stalking a person called Ritu Kohli on the Net by illegally chatting on the website www.mirc.com with the name of Ritu Kohli. Manish was regularly chatting under the identity of Ritu Kohli on the said Website, using obscene and obnoxious language, was distributing her residence telephone number and inviting chatter to chat with her on telephone.Consequently Ritu Kohli was getting obscene calls from different chatters from various parts of India and abroad. Ritu Kohli reported the matter to the police and the Delhi Police swung into action. The police had registered the case under Section 509 of the Indian Penal Code for outraging the modesty of Ritu Kohli.[vi]  But Section 509 of the Indian Penal Code only refers to word, gesture or act intended to insult modest of a woman. But when same things are done on internet, then there is no mention about it in the said section. None of the conditions mentioned in the section cover cyber stalking. Ritu Kolhi’s case was an alarm to the Government, to make laws regarding the aforesaid crime and regarding protection of victims under the same. As a result Section 66A of the Information Technology Act, 2008 (ITAA 2008) states[vii], “Punishment for sending offensive messages through communication service, etc:

Any person who sends, by means of a computer resource or a communication device,-

(a) any  information that is grossly offensive or has menacing character; or

b) any  information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will, persistently makes by making use of such computer resource or a communication device,

(c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages (Inserted vide ITAA 2008) shall be punishable with imprisonment for a term which may extend to three years and with fine.

Explanation: For the purposes of this section, terms “Electronic mail” and “Electronic Mail Message” means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, image, audio, video and any other electronic record, which may be transmitted with the message.”

Conclusion:-

Ritu Kohli’s case is one the few cases that came in the lime light. There are thousands of cyber stalking cases talking place in the nation, but only few cases are lodged as a complaint. Due to threaten and fear of getting abused in the society half of the victims accept the incident as a nightmare and try moving on. Cyber stalking is covered under various approaches such as personal intervention, strategies, and legislative provisions to various flaws. In the 21st century the technological exploitation ha increased in comparison to physical exploitation. With no proper safeguards it is increasing everyday at a double rate. According to ‘Working to Halt Online Abuse’[viii] –an organization working since 1997 to fight against online harassment, in the year 2011, 305 cases of cyber stalking took place.

Also very few people are aware about the legal aspect of cyber stalking. Very few people even know that something called cyber stalking even exists. Folks need to get education regarding online abuse. It is one of the major steps by which an end can be availed to this heinous crime. The legal aspects are of no use if one does not know what is cyber stalking and what to do, when one becomes the prey of it?


[i] Verma Amita, ‘Cyber Crimes & Law’, Central Law Publication, p-157

[ii] Verma Amita, ‘Cyber Crimes & Law’, Central Law Publication, p-158

[iii]Available on,  http://en.wikipedia.org/wiki/Flaming_(Internet)

[iv] Jain.N.C, ‘Cyber Crime’,Allahabad Law Agency, p-235,236

[v] Source: Times of India 26.12.2003, Available on, http://www.indiaforensic.com/cyberstalking.htm

[vi] Cyberlaw consultant, ‘Legislation to check cyber stalking  needed urgently

Available on, http://www.financialexpress.com/old/fe/daily/20000727/efe27021.html

[vii] Information Technolgy (Amended) Act, 2008.

Available on, http://www.cciclub.net/downloads/IT%20ACT%202008.pdf

[viii] Available on, http://www.haltabuse.org/resources/stats/index.shtml