All You Need to Know About the Legal Implications of the #MeToo Movement

The recent spate of allegations of sexual harassment by several women across professions against their male counterparts has sparked debate in the society regarding the need for their safety against sexual harassment. This has also triggered off the #MeToo Movement in India. However, it has evoked varied responses, with sections of society oscillating between support to the females as well as in support of the men. Hence, it becomes imperative to understand the law for both the victim of harassment as well as the accused.

The criminal justice system in India is hinged on the principle of ‘innocent until proven guilty’, a concept often misused by offenders to hide behind the lethargic rigors of litigation in India. Though criticized, it remains the foundation of criminal law in the country, especially with a view to differentiating between genuine and frivolous complaints.

Until recently, offenses related to sexual harassment of women fell under the archaic provisions of the colonial Indian penal code (IPC) which restricted such cases to the general definition of ‘Assault’, ‘Outraging the Modesty of Women’ and in severe cases of harassment, ‘Rape.’ However, in 2013, the Indian legislature, in due recognition of the rights of a woman, enacted a law for protection of women against sexual harassment at the workplace (on the basis of the Vishakha guidelines framed by the Supreme Court many years earlier in 1997) through ‘The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act’ (POSH).

Though belated, it was a result of several violent sexual crimes against women and sought to herald a new era in which women are more secure at their place of work. POSH defines sexual harassment to mean unwelcome acts or behaviour towards a woman and includes physical contact and advances; a demand or request for sexual favours; making sexually coloured remarks; showing pornography and any other physical, verbal or non-verbal conduct of sexual nature. The definition of ‘workplace’ is wide and covers public and private sector enterprises as well as domestic households in which a woman may be employed.

Under POSH, an aggrieved woman is required to make a written complaint alleging sexual harassment at her workplace within three months from the date of the incident. This complaint is to be addressed to the Internal Complaints Committee (ICC) set up by the organization to inquire into the merits of the allegation/s. If the ICC finds substance in the allegations, it is required to forward the complaint to the police for action under criminal law. Moreover, POSH specifies a time period of 90 days to complete such an inquiry. The ICC is also empowered to grant compensation to the harassed woman.

Evidently, POSH is restricted in its application to harassment cases at the workplace and the penalization/sentencing of an offender is not prescribed under the act itself. The law in this regard, is sole, the penalties prescribed in the IPC.

To ensure that the intent of POSH is truly realized and that the entire spectrum of harassment cases is covered under the law, an amendment to the IPC was duly made in 2013, bringing in a sea change — giving aggrieved women a platform to seek stringent punishment of their harasser/s under criminal law for a range of sexual harassment related incidents. The IPC, as it stands today, replicates the POSH definition of sexual harassment whilst also providing for rigorous imprisonment of up to three years. In addition, crimes such as ‘use of criminal force to woman with intent to disrobe’; ‘voyeurism’ and ‘stalking’ are now punishable under the IPC with imprisonment terms varying from one to seven years depending on the nature of harassment.

While changes to the substantive law (i.e. the IPC) are welcome, it is crucial that the procedural implementation of such law is pain-free and renders complete justice. Just as the IPC was amended to include sexual harassment crimes, the procedural law governing criminal cases (Cr.PC) underwent revisions to support these new laws. The amended IPC provisions on harassment have all been categorized as cognizable offenses in the Cr.PC, such that a police officer is entitled to arrest an alleged harasser without obtaining a warrant from a magistrate. Further modifications to the Cr.PC include the compulsory recording of an FIR by a policeman in cognizable cases; filing of an FIR by a woman police officer in sexual harassment cases and ensuring that the aggrieved woman is not confronted by her alleged harasser during the trial. Yet another relevant addition to the law is the punishment contemplated for a police officer in case of failure to record an FIR in sexual harassment complaints. The concerned police officer if found in breach of his/her duties could serve up to a five-year rigorous prison sentence.

Given that there are always two sides to a coin, there may be a scenario in which an accused (whilst defending a complaint against him), seeks to clear his name in case of a frivolous or malicious complaint designed to tarnish his reputation. The remedies available to an alleged harasser are mainly two-fold. First, the common known remedy of filing a defamation complaint/suit under the criminal/civil law. If proven, a defamation complaint could lead to a prison sentence of up to two years for the ‘aggrieved’ woman.

Second, the alleged harasser may also file a case for malicious prosecution when a false charge has been levied. Once again, if found guilty of a false charge, the ‘aggrieved’ woman could be sentenced to imprisonment of up to two years. Further, defamation and malicious prosecution are well-established civil remedies under tort law. The accused in a disingenuous charge of harassment can seek compensation for loss of reputation and/or institution of false proceedings under civil law as well. In addition, it is pertinent to note that POSH also provides for the punishment of false or malicious complaints and false evidence.

On a concluding note, the above enactments and remedies are not without criticism. For instance, complaints made under POSH are to be treated as non-cognisable offences wherein a police officer cannot arrest the accused without a warrant, whereas a similar offense under the IPC is cognizable.

Another controversial aspect of the law is that it is not gender-neutral i.e. there is no redressal mechanism for a male who alleges sexual harassment. Additionally, a glaring lacuna appears to be the lack of a prescribed time limit for the disposal of these cases. While the Cr.PC currently envisages a two-month window for speedy and efficacious disposal of rape cases, it does not set any time-frame within which complaints of sexual harassment are to be disposed of. This might prove to be a tiring roadblock for a victim of sexual assault and it could be years before a guilty verdict is delivered.

Siddhesh S Pradhan is an associate at J Sagar Associates. The views expressed in this article are personal and are not reflective of the firm’s or this newspaper’s view.



SOURCE DNA INDIA: