“Sexual harassment is any unwelcome sexually defined behaviour which can range from misbehaviour of an irritating nature to the most serious forms such as sexual abuse and assault, including rape“.
This is a stigma on our Indian judiciary and humanity that this type of misdemeanor are still exist and surprisingly increasing day by day. we have seen N no of cases in previous years where the intensity of crime was so cruel which can’t be define in words. sexual harassment occurs in different stage in our surrounding it can be happens in a closed family or workplace or trustworthy atmosphere. Most cruel crimes is to physically or mentally abuse minors.
Supreme Court of INDIA categorize, minor cases have different laws by IPC to punish perpetrators and in case of adult it has different limitations.
The Protection of Children from Sexual Offences Act:2012
- POCSO or The Protection of Children from Sexual Offences Act (POCSO Act) 2012 was established to protect the children against offences like sexual abuse, sexual harassment and pornography.
- It was formed to provide a child-friendly system for trial underneath which the perpetrators could be punished.
- The Act defines a child as any person below eighteen years of age. It also makes provisions for avoiding the re-victimisation of the child at the hands of the judicial system.
- Under certain specific circumstances POCSO states a sexual assault is to be considered “aggravated if the abused child is mentally ill or when the abuse is committed by a member of the armed forces or security forces or a public servant or a person in a position of trust or authority of the child, like a family member, police officer, teacher, or doctor or a person-management or staff of a hospital — whether Government or private.”
- Survivors of child sexual abuse will be able to file a police complaint when they are adults after the government clarified that there is no time bar on reporting such crimes.
- POCSO is applicable only for crimes after its enactment in 2012, cases of historical child sexual abuse or those that pre-date the law will not find a closure.
- Section 19 of the POCSO Act lays down the procedure for reporting a crime but doesn’t specify a time limit or statute of limitation for reporting offences covered under it.
The Sexual Harassment of Women (Prevention, Prohibition and Redressal) Act 2013 defines sexual harassment to include any one or more of the following unwelcome acts or behaviour (whether directly or by implication) namely:
- Physical contact and 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.
Sexual harassment at workplace:
Sexual harassment at the workplace is any unwelcome sexually defined behaviour which has the purpose or effect of unreasonably interfering with the individual’s work performance or creating an intimidating, hostile, abusive or offensive working environment. It may amount to sexual harassment at the workplace:
- Implied or explicit promise of preferential treatment in her employment or
- Implied or explicit threat of detrimental treatment in her employment; or
- Implied or explicit threat about her present or future employment status;
- Interference with her work or creating an intimidating or offensive or hostile work environment for her; or
- Humiliating treatment likely to affect her health or safety.
Complaints may be filed under the following circumstances:
Cases involving individuals from the same organization.
Cases that concern third-party harassment, which implies harassment from an outsider.
An Indian Context:
India has signed and ratified the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW).
In 1997 as part of the Vishaka judgment, the Supreme Court drew upon the CEDAW and laid down specific guidelines on the prevention of sexual harassment of women at the workplace.
The Vishaka guidelines defined sexual harassment and codified preventive measures and redressal mechanisms to be undertaken by employers.
Currently, in India, #MeToo Movement, many questions arise. What is perhaps of even greater disquiet is that for so long an official silence was kept around what were, in many instances, open secrets.
It is important to note that these events, when added to the daily news cycle of multiple rapes, stalking, and harassment from all across the country, have resulted in victims of sexual crimes entirely losing faith in the justice system.
Experts believe that the failure of due process is the success of #MeToo. After decades of witnessing the impunity of the perpetrators, #MeToo is fuelled by an impunity of sorts of the ‘victims’.
Certain areas that need clarity:
- Currently the floodgates have been opened and various kinds of stories are getting expose. These stories range from awkward flirting to physical assault.
- One other factor that is dividing the discussion into two is the nature of consent.
- It is important to note that what needs consent is often a function of society. For example, many aspects of intersexual behaviour especially in the workplace that were acceptable 30 years ago, needless to say, are not tolerated any more.
- However, we observe that with the advent of smartphones and instant messaging, interpersonal behaviour and the definition of consent have undergone a major change in the last decade.
- Thus, stemming from this, it is imperative at this point to understand that consent is not static, but needs to be continuous and incremental.
- It is important to identify the exact transgression in the various cases that are being expressed, and to ensure that action is taken with due process.
- Further, it is important to note that no one can be deemed guilty only because he had been named and any punishment must be proportionate to the misdemeanour.
- No movement is perfect, and all battles have a certain amount of collateral damage.
- It is important that men be active allies in making the due process a fair and functional one in which all victims, including those of false allegations, can seek justice.
- It is imperative now that the building of a new, fair system that delivers brisk justice, critical to everyone’s interests is initiated.
- All of society needs to internalise a new normal that protects a woman’s autonomy and her freedom from discrimination at the workplace.
- In the case of men, it would mean subordinating desire to respect and learning that reciprocation is not a divine right. For women, it means learning to reject with confidence, learning how to deploy power.
- Further, it is important to point out that once the dust settles, substantial solutions are needed.
Institutional responses must become quicker, wiser, and more robust, but behavioural changes are even more urgent.