OFFENCES

As noted in the Indian Penal Code (1860), amended in 2013.

SEXUAL HARASSMENT

Section 354 A: Sexual Harassment and punishment for sexual harassment :
A man committing any of the following acts :

1.)Physical contact and advances involving unwelcome and explicit sexual overtures; or
2.)A demand or request for sexual favours; or
3.)Showing pornography against the will of a woman; or
4.)Making sexually coloured remarks; or
5.)Any other unwelcome physical, verbal or non-verbal conduct of sexual nature, shall be guilty of the offence of sexual harassment.

Punishment and Penalties :
For offences specified in clauses 1, 2 and 3, rigorous imprisonment for a term which may extend to 3 years, or with a fine, or with both.
For offences specified in clause 4 and 5, imprisonment for a term of 1 year, or with fine, or with both.

The offence under this section is cognizable, bailable and triable by any Magistrate.

Section 354 B: Assault or use of criminal force to woman with intent to disrobe :
Any man who assaults or uses criminal force to any woman or abets with the intention of disrobing or compelling her to be naked, shall be punished with an imprisonment for a term which shall not be less than 3 years but which may extend to 7 years and shall also be liable to fine.

The offence under this section is cognizable, non-bailable and triable by any Magistrate

VOYEURISM

Section 354 C :

Any man who watches, or captures the image of a woman engaging in a private act in circumstances where she would usually have the expectation of not being observed either by the perpetrator or by any other person at the behest of the perpetrator or distributes such image shall be punished on first conviction.

Punishment and Penalties :
Imprisonment for not less than 1 year, but which may extend to 3 years, and a fine. Incase of second or subsequent conviction, with imprisonment for not less than 3 years, but which may extend to 7 years, and fine.

The offence under this section is cognizable, bailable and triable by any Magistrate for first conviction.
Second or subsequent conviction, it is cognizable, non-bailable and triable by any Magistrate

For the purpose of this section, ‘private act’ includes:

an act of watching carried out in a place where one would reasonably expect privacy;
where the victim’s genitals, posterior or breasts are exposed or covered only in underwear;
or the victim is using a lavatory;
or the victim is doing a sexual act that is not of a kind ordinarily done in public.

If the victim consents to the capture of the images or any act, but does not consent to its circulation to third persons then its circulation or distribution shall be considered an offence under this section.

STALKING

Section 354 D :

  1. Any man who –
    • Follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman; or
    • Monitors the use by a woman of the internet, email or any other form of electronic communication,
    • watches or spies on a woman in any manner,
      that results in a fear of violence/ serious alarm/ distress in the mind of such woman, or interferes with her mental peace, commits the offence of stalking.
  2. Such conduct shall not amount to stalking if the man who pursued the woman proves that –
    • he was pursuing for the purpose of preventing or detecting crime and had been entrusted with this responsibility by the State; or
    • it was pursued under any law or to comply with any condition or requirement imposed by any person under any law; or
    • in the particular circumstances such conduct was reasonable and justified.

Punishment and Penalties :
For first conviction with imprisonment which may extend to 3 years, and fine.
For second or subsequent conviction, with imprisonment which may extend to 5 years and fine.

The offence under this section is cognizable, bailable and triable by any Magistrate for first conviction.
Second or subsequent conviction, it is cognizable, non-bailable and triable by any Magistrate

STREET SEXUAL HARASSMENT

Section 509 :

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

Punishment and Penalties :
Simple imprisonment for a term which may extend to 3 years and fine.

Section 294 : Obscene acts and songs :

Whoever, to the annoyance of others –

  • does any obscene act in any public place, or
  • sings, recites or utters any obscene song, ballad or words, in or near any public place

Punishment and Penalties :
Maximum jail sentence of 3 months, or with fine, or with both.

The offence under these sections are cognizable, bailable, non-compoundable and triable by any Magistrate

Although Indian law doesn’t use the term street sexual harassment, victims of it usually seek recourse through S. 294 or 509. It is a form of sexual aggression that ranges in severity from sexually suggestive remarks and brushing in public places to catcalls and groping.

The essential elements of S. 509 are :

  • Accused uttered any word, made any sound or made a gesture or exhibits any object or intrudes upon the privacy of a woman.
  • Accused intended that words uttered, sound made or gesture shown or object exhibited seen or heard by the woman.
  • It has to be directed towards a woman or group of women.
  • An insult to the modesty of the woman is an essential ingredient of this offence.
  • The intention to insult the modesty of woman must be coupled with the fact that the insult is caused.
  • The offence may occur in a private or public place.

As per the Justice Verma Committee Report, the 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.

Difference between Section 354 and 509 – S. 509 specifically talks about the insult and modesty of the women whereas S. 354 deals with outraging the modesty of the women.

The key ingredients of S. 294 are :
The accused –

  • Did some act; sang, recited or uttered any ballad;
  • That such act was obscene
  • That it was done in a public place
  • It caused annoyance to others and since annoyance is subjective to one’s mental faculty, it has to be derived from the facts and circumstances of the case.
  • This section is not gender specific, and the offender as well as the victim can be both male or female.

S. 292 states that showing obscene pictures, books or papers to a woman or girl results in a fine of Rs.2000 with 2 years imprisonment for first time offenders. For repeat offender, a fine of Rs.5000 with 5 years imprisonment may be imposed

SEXUAL HARASSMENT AT WORKPLACE

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 :

The law applies to :

  1. women and women only
  2. domestic workers, daily wagers – temporary or permanent, full-time or part-time, as well as volunteers
  3. women, who may or may not be employed and belong to any age group (unpaid interns too qualify under this Act)

Workplace includes :

  1. traditional office set-up where there is a clear employer-employee relationship,
  2. organizations, departments, offices, branch units etc. in the public and private sector,
  3. organized and unorganized, hospitals, nursing homes, educational institutions, sports institutes, stadiums, sports complexes
  4. any place visited by the employee arising out of or during the course of employment including transportation provided by the office
  5. non-traditional workplaces, which involve telecommuting

Sexual Harassment at the Workplace includes any one or more of the following unwelcome acts or behaviour :

  • Physical contact or advances
  • A demand or request for sexual favours
  • Making sexually coloured remarks
  • Showing pornography
  • Any other unwelcome physical, verbal or non-verbal conduct of sexual nature

If any act is done under the following circumstances that would also count as Sexual Harassment at the Workplace :

  • Implied or explicit promise of preferential treatment in employment
  • Implied or explicit threat of detrimental treatment in employment
  • Implied or explicit threat about her present or future employment status
  • Interferes with work or creates an intimidating/hostile/offensive work environment
  • Humiliating treatment likely to affect her health and safety

Punishment and Penalties :

  • Penalties range from 1 to 3 years imprisonment and/or a fine.
  • Additionally, with sexual harassment being a crime, employers are obligated to report offences under any situation.
  • Penalties have been prescribed for employers. Non-compliance with the provisions of the Act shall be punishable with a fine of up to INR 50,000.
  • Repeated violations may lead to higher penalties and cancellation of license or registration to conduct business.
  • The inquiry process under the Act should be confidential and the Act lays down a penalty of Rs. 5000 on the person who has breached confidentiality.
  • The Government can order an officer to inspect the workplace and records related to sexual harassment in any organization

Women should have the right to a safe work environment free from sexual harassment. This Act came into force to address the various violations of the Fundamental Rights guaranteed to women under the Constitution of India :

Articles 14 – Equality before Law;
Article 15 – Prohibition of Discrimination on grounds of sex;
Article 19 (g) – Right to practice any profession or to carry on any occupation, trade or business;
Article 21 – Protection of life & personal liberty.

Do non-physical sexual gestures fall under the ambit of Sexual Harassment at the Workplace?

It is understood that aggressive sexual touching or forceful attempt to engage in any act of sexual nature like kissing, touching, etc will fall under this Act as an offence.
However, there are many other non aggressive acts of a sexual nature that fall under the definition of sexual harassment at workplace.
Even If there is no sexual assault, wherever there is any behaviour that creates an unduly hostile work environment for a woman, which maybe related to her looks/ dressing/ sex and involves an interest of a sexual nature; one needs to need to examine If sexual harassment at the workplace has taken place.

RAPE

Section 375 :

A man is said to commit rape if he –

  • Penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman, or makes her to do so with him or any other person; or
  • Inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
  • Manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any other part of the body of such woman or makes her to do so with him or any other person; or
  • Applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions –
    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 herself to be lawfully married to him
    5. With her consent when, at the time of giving such consent due to unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or harmful 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 18 years of age
    7. When she is unable to communicate consent

Penetration is sufficient to constitute the act as an offence of rape.

  • Exception 1 – A medical procedure or intervention shall not constitute rape.*
  • Exception 2 – Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not ‘rape’.*

Section 376: Punishment for rape :

  1. Whoever, except in the cases provided for in sub-section (2), commits rape, shall be punished with rigorous imprisonment for not less than 7 years, but which may extend to imprisonment for life, and shall also be liable to fine.
  2. Whoever,
    1. being a police officer, commits rape –
      1. Within the limits of the police station to which such police officer is appointed; or
      2. in the premises of any station house; or
      3. on a woman in such police officer’s custody or in the custody of a police officer subordinate to such police officer; or
    2. being a public servant, commits rape on a woman in such public servant’s custody or in the custody of a public servant subordinate to such public servant; or
    3. being a member of the armed forces deployed in an area by the Central or a State Government commits rape in such area; or
    4. being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women’s or children’s institution, commits rape on any inmate of such jail, remand home, place or institution; or
    5. being on the management or on the staff of a hospital, commits rape on a woman in that hospital; or
    6. being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman; or
    7. commits rape during communal or sectarian violence; or
    8. commits rape on a woman knowing her to be pregnant; or
    9. commits rape on a woman when she is under 16 years of age; or
    10. commits rape, on a woman incapable of giving consent; or
    11. being in a position of control or dominance over a woman, commits rape on such woman; or
    12. commits rape on a woman suffering from mental or physical disability; or
    13. while committing rape causes grievous bodily harm or maims or disfigures or endangers the life of a woman; or
    14. commits rape repeatedly on the same woman,

Shall be punished with 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.
Such an offence is cognizable, non- bailable and can be tried by Court of Session.

Section 376 A: Punishment for causing death or resulting in persistent vegetative state of victim :

Whoever, commits an offence punishable under sub-section (1) or (2) of S. 376 and in the course of such commission inflicts an injury which causes the death of the woman or causes the woman to be in a persistent vegetative state, shall be punished with rigorous imprisonment for a term which shall not be less than 20 years, but which may extend to imprisonment for life or with death.
Such an offence is cognizable, non- bailable and can be tried by Court of Session.

Section 376 B: Sexual intercourse by husband upon his wife during separation :

Whoever has  sexual intercourse with his own wife, who is living separately, whether under a decree of separation or otherwise, without her consent, shall be punished with imprisonment for a term which shall not be less than 2 years but which may extend to 7 years, and shall also be liable to fine.
Such an offence is cognizable, bailable and can be tried by Court of Session.

Section 376 C: Sexual Intercourse by person in authority :

Whoever, being —

a. in a position of authority or in a fiduciary relationship; or

b. a public servant; or

c. Superintendent or manager of a jail, remand home or other place of custody established by or under any law for the time being in force, or on the management of a women’s or children’s institution; or

d. on the management of a hospital or being on the staff of a hospital, abuses such position 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 with him, such sexual intercourse not amounting to the offence of rape,

Shall be punished with rigorous imprisonment for a term which shall not be less than 5 years, but which may extend to 10 years, and shall also be liable to fine.
Such an offence is cognizable, non- bailable and can be tried by Court of Session.

Section 376 D: Gang rape :

Where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with rigorous imprisonment for a term which shall not be less than 20 years, but which may extend to life and with fine:

  • such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim:
  • the fine imposed shall be paid to the victim.

Such an offence is cognizable, non- bailable and can be tried by Court of Session.

Section 376 E: Punishment for repeat offenders :

Whoever has been previously convicted of an offence punishable under S. 376 or 376A or 376B and is subsequently convicted of an offence punishable under any of the said sections shall be punished with imprisonment for life or with death.
Such an offence is cognizable, non- bailable and can be tried by Court of Session