Gender Neutrality and Sexual Harassment Laws in India: A societal issue

Reading time : 8 minutes

ABSTRACT:

India is known for its male-dominated culture where women are considered inferior to men and due to such kind of culture, women become prey to all kinds of atrocities, harassment, abuse of men. To protect women from all kind of abuse and harassment and to elevated women equal to men, numbers laws like. Dowry Prohibition Act, 1961, Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 etc. policies and the reform made by the state and all those laws and policies are proved in favour of women. However there is says that Gives too much protection and power to the person will going to spoil him. The same thing happens with women. Taking advantage of the law, women started harassing men either in the name of a false case of dowry, or rape etc. There is a perception that men only harass, abuse women sexually but now the situation is not the same. In the last few years, multiple cases come in the limelight where women are seen harassing sexually the men. However, no single cases were registered against the women in the absence of any law which can protect the men against such abuse and harassment.

INTRODUCTION:

In Rajasthan, a case was registered against the 11 women rape men for continually12 days. When men approached the police station for lodging the FIR against these women for committing rape. Police refused to register the FIR in the absence of law which penalized the women for such an act. If someone closely analyses section 376 of the Indian Penal Code one can find that the word Rape is the women- centric word. According to section 376 of IPC, rape is an offence which can be committed only against the women and not men. Similarly, according to section 354 of IPC, men only can outrage the modesty of women. The above-mentioned section shows that only women can be the victim of rape or sexual harassment. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”) is another women-centric law which laid the provisions to protect the women

from sexual harassment in the workplace. According to the survey conducted by the Centre for Civil Society found that approximately 18% of Indian adult men surveyed, reported being coerced or forced to have sexual intercourse at workplaces. Of those, 16% claimed a female perpetrator and 2% claimed a male perpetrator. These figures indicate only one aspect of sexual harassment, i.e. demanding sexual favours, at the workplace. Other forms of sexual harassment under the POSH Act including showing pornography, making sexually coloured remarks and other unwelcome physical or verbal comments and actions against male employees can however never be tabulated.1 This because there is no specific law in India which deal with such an issue. This indicates that the need for amendment in Criminal law and need to enact the law which can protect men and third gender from sexual harassment in the workplace.

CONSTITUTIONAL PERSPECTIVE ON GENDER-NEUTRAL LAWS:

  • Part III of the Indian Constitution ensure that every citizen must get all the fundamental rights enshrined in this part irrespective of sex, gender, religion etc. Following are the provision enshrined in the part which throw the light on the need for Gender-neutral laws. They are as follow.
  • Article 14 of the Indian constitution used two expressions that is equality before the law and equal protection of the law. These expressions are the core stone of any law. Absence of the spirit of this two expression makes a law arbitrary. For instance, POSH though made to protect the women from sexual harassment however exclude the men and third gender from its ambit which is a clear negation of these expressions.
  • Article 15 of the Constitution prohibits the state to discriminate any citizen on the grounds of sex, gender, religion, cast etc.
  • Article 19 (a)(1) of the Constitution: This article gives freedom to the citizen to freely express their thought, belief etc. In India, there is a perception that men can’t be the victim of sexual abuse, assault or harassed. This kind of thinking restraint the men to raise his voice against such an act. Also due to the lack of legal framework against such acts men are not able to complain about such acts. This show that due to fear of stigma and lack of legal framework against such

A CASE FOR GENDER NEUTRAL LAW ON SEXUAL HARASSMENT AT WORKPLACE:

Men restraint themselves to raise the voice against such injustice is a clear violation of the men right under this Article.

  • Article 21 which provide that every person has a right to be heard. In India, there is no single law which can also recognize sexual harassment as an offence against men too. Due to this court also refused to entertain such case which violates the right of men to be heard.

INTERNATIONAL GENDER-NEUTRAL LAWS FROM PROTECTION AGAINST SEXUAL HARASSMENT:

The International Labour Organisation is a United Nations agency for promotion of social justice and ensure safe work environment by setting labour law standards. ILO has recently formalised “Convention on Elimination of Violence and Harassment at Workplace, 2019” at the 108th International Labour Conference on 21st June 20192. It defines gender-based violence and harassment at workplace”, as affecting all working individuals irrespective of their sex.3 It mandates that all UN member states need to formulate their labour laws based on the abovementioned mandate.4 Currently India has not ratified this convention.

STEPS TAKEN BY THE GOVERNMENT TO PROTECT MAN:

Recently, a bill has been introduced in the Lok Sabha which seeks to make all sexual offences gender- neutral. The bill proposes amendments in Criminal Laws[xIv] to ensure that the words “any man” and “any woman” in the sections relating to sexual offences in the laws are changed to read as “any person”.5 By changing the definition of the perpetrator and victim of sexual assault from “man” and “woman” to “any person”, the bill transcends from the traditional and outdated role of men and women as assaulter and victim.6 Furthermore According to UGC regulations, under the University Grants Commission (Prevention, Prohibition and Redressal of Sexual Harassment of Women Employees and Students in violence and Harassment Convention, 2019, 21st June 2019,108th International Labour Organisation Conference. Article 2, Violence and Harassment Convention, 2019 & Article 9, Violence and Harassment Convention, 2019, (Indian Penal Code (IPC), Criminal Procedure Code and the Indian Evidence Act)

A CASE FOR GENDER NEUTRAL LAW ON SEXUAL HARASSMENT AT WORKPLACE :

Higher Educational Institutions) Regulations, 2015, recognizes all genders under the ambit of “aggrieved party”. The regulations do not use the term “aggrieved woman” and only refer to either “aggrieved person” or an “aggrieved party. Also The regulations mandate a primary responsibility on all Educational Institutions to “act decisively against all gender-based violence perpetrated against employees and students of all sexes.

CONCLUSION AND SUGGESTIONS:

  1. The Preamble of the Indian Constitution ensures that every person must get social, economical, political irrespective of gender, sex, caste, religion and also ensure equality of status in the society. Keeping in the mind of these great principles, the time has come where the legislature has to enact the laws which can protect all gender and sex from sexual harassment of all kinds. Also, there is a need to amend the definition of rape by replacing the word women from any person.
  2. Also there is a need to amend the POSH Act. One of the most primary actions to be taken in this regard is changing its name to “The Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act”

BIBLIOGRAPHY:

  1. UGC      Issues      Guidelines     For      Male      Students      To       File      Sexual      Harassment               Complaints. https://www.indiatimes.com/amp/news/india/ugc-issues-guidelines-for-male-students-to-file-sexual-harassment- complaints-256582.html.
  2. Gender Neutrality & Sexual Harassment Laws In India https://www.mondaq.com/india/employee-rights- labour-relations/988146/gender-neutrality-sexual-harassment-laws-in-india-an- overview#:~:text=The%20amendment%20brought%20to%20the,Section%20375%20%26%20376%20(Rape%20
  3. Why India Inc. needs to protect Men against Sexual Harassment at Workplaces in India- case for gender neutral policies https://www.ungender.in/why-india-inc-needs-to-protect-men-against-sexual-harassment-at-workplaces- in-india-case-for-gender-neutral-policies/.
  4. https://www.thehindu.com/thread/reflections/men-too-may-be-sexually-harassed/article18351375.ece
  5. https://www.google.com/amp/s/www.amicusx.com/amp/a-case-for-gender-neutral-law-on-sexual-harassment-at-workplace.
  6. https://www.google.com/amp/s/www.amicusx.com/amp/a-case-for-gender-neutral-law-on-sexual-harassment-at-workplace.

Author: Eesha Mishra

Editor: Kanishka VaishSenior Editor, LexLife India.

LAW RELATING TO RAPE AND SEXUAL CRIMES IN INDIA

Reading time : 8 minutes

Introduction

Sexual crimes in India have always been a matter of great concern. As per the data released by NCRB 32,033 rape cases where reported in 2019, an average of 87 rape cases in a day was seen in the year. Uttar Pradesh and Rajasthan were among the states with worst record of rape and sexual crimes. This data should comes as a shock for the nation as even after such strict laws we are still not able to reduce the number of sexual crimes. The recent case of gang rape of a 50 year old woman in the village of Badaun, Madhya Pradesh has shaken the whole country.

This leads to several questions as to what is the reason behind such alarming rate of sexual offences. Are rape laws not strict enough?  Are there any loopholes in the laws? Is punishment for rape under IPC not adequate?

Understanding the Concept of Rape under IPC

The offence of rape has been defined under Section 375 of Indian Penal Code. A man is said to have committed rape of a woman when he indulges into sexual intercourse with a woman against her will or without her consent. The Section provides with seven circumstances under which sexual intercourse by a man will be considered as rape:-

a. Against her will.

b. Without her consent.

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

d. When woman gives consent believing that the man is her husband.

e. With her consent when given by reason of unsoundness of mind, or under influence of intoxication or any stupefying or unwholesome substance.

f. With or without her consent, when she is under eighteen years of age.

g. When she is unable to communicate consent.

Consent obtained by fear, misrepresentation, fraud, coercion, under mistake, or reason of unsoundness of mind is no consent. There is a fine distinction between “an act done against the will” and “an act done without the consent”. The Supreme Court has explained the difference between the two in the case of State of Uttar Pradesh v. Chottey Lal, (2011). The expression “against her will” would ordinarily mean that the intercourse was done by a man with a woman despite her resistance and opposition. On the other, the expression “without her consent” would comprehend an act of reason accompanied by deliberation.

The Section has also included two exceptions:

1. A medical procedure or intervention shall not comprise rape.

2. Sexual intercourse by a man with his wife, wife not being below 18 years is not rape.

The age limit in exception 2 was changed from 15 to 18 years in the case of Independent Thought v. UOI AIR 2017. The Supreme Court held that this exception was making an unnecessary distinction between a married girl child and an unmarried girl child which violated Articles 14, 15, and 21 of Constitution of India. It was also inconsistent with provisions of POCSO Act.

Punishment (Section 376)

1. Rape- Rigorous imprisonment for a term not less than 10 years which may extend to life imprisonment and also liable to fine.

2. Rape of a woman below 12 years of age- Minimum 20 years’ imprisonment or jail for rest of life or death.

3. Rape of a woman less than 16 years – Minimum punishment of 20 years imprisonment which may be extended to life.

4. Gang rape- Rigorous imprisonment for 20 years which may be extended to life and also liable to fine.

5. Gang rape on woman under 16 years- Imprisonment for life and liable to fine.

6. Gang rape on woman under 12 years- Imprisonment for life and liable to fine or death.

7. Repeat Offenders- A person who has already been convicted under the sections 376, 376A, or 376D and is subsequently convicted of an offence under these sections shall be punished with imprisonment for life or death.

Evolution of Criminal Law

The laws relating to sexual offences have gone through many reforms, courts in their judgement have decided many cases which were widely criticized and in order to nullify the effect of such decisions provisions relating to law of rape as stated earlier were extensively amended in 1983 vide Criminal Law (Amendment) Act 43 of 1983. One such case was Tukaram v. State of Maharashtra AIR 1979, popularly known as Mathura rape case. Mathura, an 18 year old Harijan girl was raped and molested by two police constables Ganpat and Tukaram at the police station after keeping her in the late hours of the night. The Supreme Court in this case reversed the finding of Bombay High Court and held that Mathura was subjected to no fear and since there was no resistance on her part it could be said that there was consent. This decision was not appreciated by the public and was said to be a failure of courts to safeguard rights of victims of rape.

Important Amendments in Criminal Law

The inadequacy of the laws of rape manifested in a number of judgements of the Supreme Court such as Tukaram v. State of Maharashtra AIR 1979, Sidheshwar Ganguly v. State of West Bengal AIR 1958, Bharwada Bhoginbhai Hirjibhai v. State of Gujarat AIR 1983. It was an absolute failure to safeguard the rights of the innocent victims against such heinous crimes. The Parliament in order to strengthen the law brought several amendments to the penal laws and the procedural laws. Some of the important changes brought about by the Act 43 of 1983 and Act 13 of 2013 and other provisions are listed below:

(i) Consent of a woman of unsound mind or under intoxication: the clauses fifthly and sixthly were added by the Act of 1983 to Section 375. The consent of a woman who is of unsound mind or under influence of intoxicants would not be held as a valid consent because during that state she is unable to understand the nature and consequences of the act.

(ii) Burden of proof of innocence on accused: section 114A was inserted in The Evidence Act, 1872 which made the presumption of absence of consent of the woman if the case fell under section 376(2) clauses (a), (b), (c), (d), (e) and (g), IPC shifting the burden of proof of innocence on the accused.

(iii) Prohibition of disclosure of identity of the victim: section 228A, IPC clause prohibited the disclosure of identity of victims in rape cases under sections 376, 376A, 376B, 376C, 376D 0r 376E IPC.

(iv) Persistent vegetative state: clause 376A was added punishing the offenders an imprisonment for a term not less than 20 years or which may extend to life when the injury caused to the victim results in death of the woman or causes to woman to be in a Permanent Vegetative State (PVS).

(v) Trial in camera: section 327, CrPC, 1973 was amended making the provision for trial of rape cases or an offence under sections 376A to 376D, IPC in camera and publication of trial proceedings in such cases without the prior approval of the Court was also prohibited.

(vi) Custodial Rape: the clause 376C was added to punish a person who abuses his position of authority 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 not amounting to the offence of rape for a term not less than 5 years which may extend to 10 years.

(vii) Intercourse with wife during judicial separation prohibited: sexual intercourse with one’s own wife during judicial separation without her consent is punishable under 376B with imprisonment for a term not less than 2 years which may extend to 7 years.

(viii) Minimum punishment for rape: minimum punishment for rape under section 376 clause (1) provided imprisonment for 7 years which may extend to life and imprisonment for 10 years which may extend to life under clause (2) of IPC.

(ix) Prohibition of character assassination of prosecutrix:  The Criminal Law (Amendment) Act 13 of 2013 inserted a “Proviso clause” to section 146 of The Indian Evidence Act, prohibiting questions about prosecutrix character in cross-examination.

Are Rape Laws gender-neutral?

The rape laws defined under IPC recognizes only female victims. Several countries such as United Kingdom, United States, Australia have provisions for gender-neutral laws. India is still behind in making laws for protecting male rape victims; it is a breach of their right to equality and right to life and personal liberty. The POCSO Act does protect male minors but there are no laws as to protect adult males from sexual offences. Section 377 also does not cover the whole issue of male rapes while criminalizing carnal intercourse against the order of nature. The number of false rape cases has also been increasing. The mental trauma that a false accusation can cause has been recognized for other offences but laws relating to false rape accusation are still to be made. This only adds to the unfairness of laws that a male accused is subject to in the country.

Status quo of rape laws in India

The current rape laws in the country have proven to be not as effective. However, with the increase of punishment and more strict laws defining various aspects of consent has helped in understanding the case of sexual offence in a new light.

Marital rape is an issue which has not been mentioned in the Indian laws; consent is a major condition in any case of rape but consent after marriage is not vital for sexual intercourse according to the laws. This breaches the right of bodily integrity of a person.

The long battle to get justice has often made the victims to not opt for reporting the crime and the social stigma that a case of rape can cause only worsens the situation. The victims needs proper counselling to inculcate confidence and initiate a case against the offender seeking justice. The delay in judgement often helps the offender to get an escape which breaches the purpose of law; speedy trial of such cases is needed. Also, new provisions must be added defining the offence of child sex abuse, incest and marital rape in the IPC.

Conclusion

The laws relating to rapes and sexual offences need reform in both statutory laws and procedural laws. These crimes are a huge threat for the society and new policies and laws can only help us curb this problem. An environment needs to be created which ensures the public that there rights are protected at all cost. Our aim must be to protect every citizen beyond the barriers of age, sex, caste, creed from all kinds of sexual offences.

Author: Surabhi Jha

Editor: Kanishka Vaish, Editor, LexLife India.

Criminal Law: POCSO Act

Reading time : 10minutes

INTRODUCTION

India has one of the largest proportions of population in the younger age groups in the world. 35.3% of population of the country has been in the age group 0-14 years at the Census 2001. 41% of population account for less than 18 years of age.

This data gives an idea that a large portion of the population in India consists of children (below 18 years age). A country with such a huge number of children must have legislations to protect these children from crimes especially from those related to sexual abuse. With a view to protect the most vulnerable population from sexual offences, the POCSO Act 2012 was passed by the Parliament.

What is Child Sexual Abuse?

Child Sexual Abuse (CSA) is a form of abuse in which a child under the age of 18 years is made subject to any kind of sexual exploitation including assault, harassment, pornography and indecent exposure by an adult or older adolescent. These abuses can have different settings such as home, school, or work (where child labor is prevalent). Since these young children are the most vulnerable age group, sexual offenders find it easy to exploit them. It is found that most of the time it is someone known to the child or someone close, many young children do not realize what is happening with them as they do not have that mental capacity to understand the situation and the consequences. Even consent by a minor to sexual activity with an adult is condemned as an adult can easily manipulate them into believing it to be a normal social behavior. We have to assume that minor children do not have the mental capacity to differentiate between what is normal acceptable behavior and what is an immoral criminal act.

According to a data released by National Crime Bureau, 109 children were sexually abused every day in 2018. 32,608 cases were reported in 2017 while 39,822 cases were reported in 2018 under the POCSO Act which was a straight 22% jump in the cases.

As many as 21,605 child rapes were recorded in 2018 which included 21,401 rapes of girls and 204 of boy, the data showed. The highest number of child rapes was recorded in Maharashtra at 2,832 followed by Uttar Pradesh at 2023 and Tamil Nadu at 1457, the data showed.

According to National Centre for Sexual Abuse, child pornography is one of the fastest growing online businesses and India is among its biggest consumers and contributors. The Indian National Crime Records Bureau (NCRB) found more than 25,000 pieces of alleged child sexual abuse content have been uploaded to social media platforms in India as on April 2020.

Laws prior to POCSO Act

In India offences relating to child sexual abuse were covered under Indian Penal Code, Section 375, Rape, Section 354, Outraging the modesty of a woman and Section 377, Unnatural offences.

There were provisions for punishment of rape of a minor but child sexual abuse was not specifically defined so as to cover other aspects of this crime. These laws had many loopholes; one such major loophole was rape under IPC only protects female victims so even if sexual offences against minor girl would be covered but offenders could get away with crimes against male child.

The ambit of these sections was very small and covered only the act of penetration into female body parts including vagina, mouth, urethra, and anus. Unnatural offence under Section 377 has also not been defined explicitly. There were also no strict laws for protection against child pornography.

Goa was the only state to have a law protecting children from sexual abuse, Goa Children’s Act 2003. There was a dire need for a new and strict legislation which would cover all different kinds of offences including sexual assault, sexual harassment and child pornography. The POCSO Act was passed by the parliament in 2012 which would come under the Ministry of Women and Child Development.

Objectives of POCSO Act

This Act aims to protect children from offences of sexual assault, sexual harassment, and pornography and provide for establishment of Special Courts for trial of such offences and for matters connected therewith and incidental thereto.

The Government of India acceded on the 11th of December, 1992 to the Convention on the Rights of the Child, adopted by the General Assembly of the United Nations, which had prescribed a set of standards to be followed by all State parties in securing the best interests of the child.

This Act was passed with a view to make necessary laws for the proper development of the child and his or her right to privacy and confidentiality be protected and respected by every person by all means and through all stages of a judicial process involving the child; it was important that the law operates in a manner that the best interest and well being of the child are regarded as being of paramount importance at every stage, to ensure the healthy physical, emotional, intellectual and social development of the child.

Important Provisions of the Act

SEXUAL OFFENCES AGAINST CHILDREN

1. Penetrative sexual assault (Section 3).

2. Aggravated penetrative sexual assault (Section 5).

3. Sexual Assault (Section 7).

4. Aggravated sexual assault (Section 9).

5. Sexual harassment (Section 11).

6. Use of child for pornographic purposes (Section 13).

PUNISHMENT

1. Penetrative sexual assault (Section 4) – imprisonment for a term not less than seven years which may extend to imprisonment for life and shall also be liable to fine.

2. Aggravated penetrative sexual assault (Section 6) – rigorous imprisonment for a term not less than ten years which may extend to life imprisonment and shall also be liable to fine.

3. Sexual assault (Section 8) – imprisonment for a term not less than three years which may extend to five years and shall also be liable to fine.

4. Aggravated sexual assault (Section 10) – imprisonment for a term not less than five years which may extend to seven years and shall also be liable to fine.

5. Sexual harassment (Section 12) – imprisonment for a term which may extend to three years and shall also be liable to fine.

6. Using child for pornographic purposes (Section 14) – maximum punishment may extend up to ten years or imprisonment for life and shall also be liable to fine.

REPORTING OF CASES (Section 19-23)

1. A person shall report a case under this Act to Special Juvenile Police Unit or the local police. Report given by a child must be recorded in a simple language or otherwise, a translator must be provided.

2. The child must be admitted into a shelter home or to the nearest hospital within twenty four hours if in need of care and protection.

3 .The matters must be reported to the Child Welfare Committee and the Special Court within a period of twenty four hours.

4. Failure in reporting a case under this Act shall be punishable. There will be an imprisonment of six months and one year for false complaint and false information, respectively.

5. The identity of the child shall not be disclosed by the media.

STATEMENT RECORDING OF THE CHILD (Section 24-27)

The recording of statement must take place in a safe environment where a child does not feel conscious and can explain the facts in a reasonable manner. The Magistrate or the police officer, as the case maybe, may, in the case of a child having a mental or physical disability, seek the assistance of a special educator or any person familiar with the manner of communication of the child.

Medical examination of the child must be conducted in the presence of the parent of the child or a woman nominated by the head of the medical institution. In case the victim is a girl child, the medical examination shall be conducted by a woman doctor.

SPECIAL COURTS (Section 28-38)

For the purpose of speedy trial Special Courts have been designated in each district, the procedure and powers of the Special Courts have been given under Section 33 of the Act.

A Special Public Prosecutor shall be appointed for every Special Court for conducting cases only under the provisions of this Act.

Where any offence is committed by a child, such child shall be dealt with under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000.

The Special Court shall ensure that the child is not exposed in anyway to the accused at the time of recording of the evidence, while at the same time ensuring that the accused is in a position to hear the statement of the child and communicate with his advocate.

The Special Court shall try cases in camera and in the presence of the parents of the child or any other person in whom the child has trust or confidence.

PRESUMPTION OF MENS REA (Section 29-30)

The Special Court shall presume that the person who is prosecuted for committing or abetting or attempting to commit any offences under sections 3, 5, 7and section 9 of this Act, has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved.

The Special Court shall presume the presence of guilty mind in any prosecution for any offence which requires a culpable mental state of accused and the accused in his defense must prove the contrary.

2019 Amendment of POCSO Act

The 2019 Amendment to the Act brought about few major changes increasing the minimum punishment from seven to ten years for penetrative sexual assault. It further added that if a person commits penetrative sexual assault on a child below 16 years, he shall be punished with imprisonment for not less than 20 years.

The amendment also added two more offences to definition of aggravated sexual assault and storage of pornographic material involving children and changes the punishment thereof.

LANDMARK CASES

Ms. Eera Through Dr. Manjula … v. State (Govt. of Nct of Delhi) (2017)

The Supreme Court in this case held that biological age must be considered and not mental age when dealing cases under the POCSO Act.

Independent Thought v. Union of India (2017)

The Supreme Court declared the exemption to marital rape under Section 375 IPC as applicable to minor girls unconstitutional for violating two fundamental rights: Article 14(9) and Article 21, Constitution of India.

Alakh Alok Srivastava v. Union of India and Others (2018)

This case was significant as regard to the speedy trial and monitoring of the trials. The petitioner sought for instructions to be issued to the Special Court to fast track the cases by not granting unnecessary adjournments and completing the trial within a specific time frame under the Act.

CONCLUSION

This Act was a comprehensive move in order to make child protection stricter and broaden its scope. The Act brought a major change in how the cases related to Child Sexual Abuse were dealt in India; reforms were needed and this Act was a right step taken to protect children from becoming victims to such shameful and horrifying crimes.

Authors: Surabhi Jha

Editor: Kanishka Vaish, Editor, LexLife India.

Gargi college incident (Delhi University)

Reading time: 6-8 minutes.

On 6th February during a festival in Gargi College in Delhi, a large group of drunken men entered into the college premises with a motive of molesting and harassing the women student and did the same. It was noted by the crowd that the outsiders who entered into the college were participating in a CAA rally nearby when they entered the college and groped the student, locked them in washrooms and misbehaved with them.

Over eleven (11) police teams were involved in looking at technical details and they also visited several places in Delhi NCR to identify the suspects and investigate the case. Several other people were questioned by the police and multiple suspects were identified. The footage of 33 CCTVs installed on the college premises were examined by the police in which footage of 3 CCTVs, it was found that a large group of youth pushed a catering van to damage a gate and after damaging the gate, they all rushed in by climbing over the barricades and started molesting women.

Atul Thakur, DCP (South), said that “the arrested persons are from various colleges of Delhi University and other private universities in NCR. The accused are in the age group of 18 to 25 years. Ten (10) people have been arrested and the investigation is still on and more people will be arrested. We identified the arrested persons with the help of CCTV footage.”

The incident came into light when some students of Delhi University’s Gargi College narrated their unpleasant experiences during a college fest on February 6 to social media and stated that the security personnel did nothing to control the incident.

The college students boycotted the classes, while over 100 students held a protest on February 10 outside the Gargi College, demanding strict action against the intruders and resignation of Principal Promila Kumar. The students had also demanded a fact-finding committee to look into the matter, and its interim report has come out in support of the students’ allegations, confirming that several students faced various levels of harassment, with complaints ranging from flashing, groping, throwing eggs, inappropriate comments, being chased, belongings being stolen etc.

Delhi Police registered a case on February 10, 4 days after the incident, when they received a complaint from college authorities. This case is registered at the Hauz Khas police station under Indian Penal Code, 1860 u/s 452 (House-trespass after preparation for hurt, assault or wrongful restraint), 354 (Assault or criminal force to woman with intent to outrage her modesty), 509 (Word, gesture or act intended to insult the modesty of a woman) and 34 (Acts done by several persons in furtherance of common intention). Moreover, the SC has refused to entertain a plea and asked for the case to first be taken to the Delhi High Court.

Legal provisions involved

There are various legislations which deal with crimes like molestation and harassing women and various acts have been made punishable, out of which there are many relating especially to women such as Disrobing a woman, Voyeurism, Stalking, Acid Attack, Sexual Harassment, Cruelty by husband or his relatives, Dowry Death and many others.  Indian Penal Code, 1860 deals with the provisions for all of these.

Under Indian Penal Code, 1860, (IPC) Section 452 deals with the provision for the persons who commits house trespass having preparation for causing hurt to another person or wrongfully restraining another person or to put any person in fear of hurt or assault or wrongful restraint. He shall be punished with imprisonment for the term decided by court, which can be extended to seven (7) years and shall also be liable to pay fine. In the present case, we can relate the incidents to this provision of law as there was trespass into the college and all the women were put into the position of fear and were wrongfully restrained in the washroom. This offence is cognizable, which means that the police can arrest those persons without a warrant and can start an investigation with or without the permission of court. In addition to this, the offence is also non-bailable.

Another legal provision in IPC is one that deals with assault or criminal force to woman with intent to outrage her modesty under Section 354. It talks about the person who assaults or uses criminal force towards any woman with the intention to outrage the modesty of the woman. He shall be punished with the term not less than one year but which can be extended to five years as the case may be. It is also a cognizable and non-bailable offence. In this Section, assault is a special ingredient.

In the resent case too, the incident hampered the modesty of the women and criminal force was used as well. In the case of State v. Hetram 1982 (2) Crimes 161,  a girl, who was about 15 years, was coming from her mother’s place when the accused suddenly came between the road and dragged her towards the other side of the road and took her to a secluded spot. It was held that this act was sufficient to book the accused under S. 354.

In the case of State of Punjab v. Major Singh AIR 1967 SC 63, the accused had caused injuries to the vagina of a seven and a half month old. The court held that the essence of women’s modesty is her sex. Young-old, Intelligent- dumb, awake- sleeping, women possess a modesty capable of being outraged.

Further, under S.509 of IPC, it is stated that any person who intends to insult the modesty of the woman by words or gestures or the act or makes any disrespectful sound or exhibits any object which intrudes the privacy of the woman shall be punished with simple imprisonment for a term which may be extended to three years and also with the fine depending upon the facts of the case. In the Gargi case, similar behaviour can be seen as the intruders outraged the modesty and insulted woman by locking them in the washroom, passing derogatory comments and inappropriately touching them. It is a cognizable and bailable offence.

In Bankey v. State of U.P. AIR 1961 All.131, wherein the accused entered the apartment of a lady, caught hold of her and removed her garments, it was held by the court that he had intruded upon the privacy of the woman. This section does not require element of criminal force or assault which is essential element of offence under S. 354.

For all these offences, a statutory body named The National Commission for Women (NCW) was formed in January 1992 under the National Commission for Women’s Act. Its mandate is to advice the government on all policy matters concerning all the women, to review various legislation created by legislators and to intervene or initiate proceedings in the Supreme Court on matters concerning woman.

Conclusion

Notwithstanding the number of laws to protect and safeguard the rights and interests of the woman, the rate of crimes against women is mushrooming day by day. The incident at Gargi College further highlights the despondent situation of women, as many students of all-girls college were molested and sexually assaulted in their own fest, in the heart of India’s capital.

It is well said by the people that it takes two to tango. It implies that only law is not responsible to control and regulate the increase of the crimes against the women in our society. The inculcation of social ethics, morals and values respect and honor in every human being towards women is the need of the hour. There is exigency of more strict and fast action to be taken against the harassers in the present case too, with cooperation of the college authorities and the police.

Author: Karan Kashyap from Bharati Vidyapeeth University, Pune.

Editor: Ismat Hena from Faculty of Law, Jamia Millia Islamia.