Understanding Sexual Harassment Law in India

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Sexual Harassment

Sexual harassment is an unwanted intrusion of a sexual nature in the personal space of an individual. Although a large proportion of the complaints are by women, sexual harassment is not limited to women alone. Men and children also face sexual harassment, but the proportion of women who survive sexual harassment is astounding. Some studies show that every Indian woman faces some sort of sexual harassment at some point in her life. This sexual harassment can occur at the workplace, at a public place or even at the individual’s home. It can be through leering, lewd words or songs, groping in a public place, molestation, sexual innuendos or rape.

Which acts constitute Sexual Harassment?

Sexual harassment is a subjective experience. This means that in deciding whether or not a situation amounts to sexual harassment, it is the impact of the harassment on the survivor that matters, and not the intent of the person accused of the harassment.

    The following are generally regarded as sexual harassment:

    • Making unwelcome sexual advances, whether or not accompanied by promises or threats
    • Making sexually suggestive remarks or hints
    • Making offensive remarks or jokes, such as teasing related to a person’s body or appearance
    • Creating a hostile, intimidating or offensive work environment to elicit sexual favours
    • Putting inappropriate questions, suggestions or remarks about a person’s sex life
    • Displaying sexist or other offensive pictures, posters, MMS, SMS, WhatsApp or e-mail
    • Intimidating, threatening, or blackmailing around sexual favours
    • Making unwelcome social invitations with sexual overtones (commonly understood as ‘flirting’).
    • Making unwelcome physical contact such as touching or pinching
    • Caressing, kissing or fondling someone against that person’s will
    • Invading an individual’s personal space (getting too close, brushing against or cornering)
    • Persistently asking a person out, despite being turned down
    • Stalking a person
    • Abusing authority to threaten a person’s job or undermine performance against sexual favors
    • Falsely accusing and undermining a person behind closed doors for sexual favors
    • Rape.

What does not constitute Sexual Harassment?

Not all offensive behavior amounts to sexual harassment. An act is not harassment only because it offends the recipient; the act itself must also be unjustified. Further, any harassment is sexual harassment, only if, it conveys a sexual undertone. Otherwise, it may be punishable under the law, but not as sexual harassment.

    Indicative examples of acts which are not sexual harassment are as below:

    • Physical assault without any sexual connotation: Punishable in criminal court.
    • Harsh work-related communication, for example, meeting deadlines or quality standards: Not punishable unless it is violating the labour laws of the country.
    • Constructive feedback about mistakes made by a person: Not punishable.

Why are many cases of sexual harassment unreported?

Mostly women in India are taught to ignore the sexual harassers. In India, the practicality still remains in keeping quiet and moving on unless and until it becomes a hazard for you to ignore it anymore. Also a complaint against sexual harasser leads to inquisitive and sexist questions by the police and judgment by the society. Most of the time, even if you take the pains to actually go through the entire process, unless the evidence is so damning that the courts cannot ignore it, the accused is let free. The police machinery and the courts have failed many women wanting justice. What is needed is change, taken to instill respect and fear of the law among these criminals.

How to fight sexual harassment?

There are many legal provisions under Indian law to help a victim fight against sexual harassment. Depending on the nature of the harassment, the following are the legal provisions regarding harassment and assault. Some of these provisions are available to both men and women, while some are made to specifically protect the interests of women.

If the harassment or assault has occurred at a public place or at home

In such cases, a police complaint should be filed. Under the Indian Penal Act, sexual harassment or assault is punishable under the following provisions:

(a) For performing obscene acts and songs in a public place (Section 294). This section is applicable if the accused does any obscene act in any public place or utters any obscene song or words in or near a public place and thereby causes annoyance to others. The punishment is imprisonment of up to 3 months, a monetary fine, or both.

 (b) For an acid attack (Section 326A) and for attempting to throw acid (Section 326B). A person who causes damage, deformity, burns, grievous hurt or who maims, disfigures or disables any part the body of another person by throwing, administering or otherwise using acid on such other person with the intention or knowledge that he is likely to cause such injury or hurt, shall be punished with imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life, and with fine. The fine imposed shall be reasonable to meet the medical expenses of the treatment of the survivor, and shall be paid to the survivor. An attempt to commit an acid attack is punishable with an imprisonment of a term not less than five years, but which may extent to seven years and is also liable to a monetary fine.

(c) For assaulting or using criminal force on a woman with intent to outrage her modesty (Section 354). If the accused uses criminal force on any woman, intending to outrage or knowing it to be likely that such act will outrage her modesty, he shall be punished with imprisonment of up to 2 years, or with fine, or with both.

(d) For sexual harassment (Section 354A): If the accused, being a man, commits any of the following acts against a woman (i) physical contact and advances involving unwelcome and explicit sexual overtures; or (ii) a demand or request for sexual favours; or (iii) showing pornography against the will of a woman; or (iv) making sexually coloured remarks, he shall be guilty of the offence of sexual harassment. The punishment is imprisonment of up to 1 year, a monetary fine, or both.

(e) For acting with intent to disrobe a woman (Section 354B): A man who assaults or uses criminal force to any woman or abets such act with the intention of disrobing or compelling her to be naked shall be punished with imprisonment for a minimum term of 3 years (but which may extend to 7 years), and shall also be liable to a monetary fine.

(f) For voyeurism (Section 354C): A man is guilty of voyeurism if he 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, or if he disseminates such image. "Private act" includes an act carried out in a place which would reasonably be expected to provide privacy and where the survivor's genitals, posterior or breasts are exposed or covered only in underwear; or the survivor is using a lavatory; or the survivor is doing a sexual act that is not of a kind ordinarily done in public. Further, in case where the survivor consents to the capture of the images or any act - but not to their distribution to third persons and where such image or act is disseminated, such dissemination is considered an offence under this section. On the first conviction, the punishment is imprisonment for a minimum term of 1 year (but which may extend to 3 years), and also a monetary fine. For second or subsequent conviction, the punishment is imprisonment for a minimum term of 3 year (but which may extend to 7 years), and also a monetary fine.

(g) For stalking (Section 354D): A man who (i) 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 (ii) monitors the use by a woman of the internet, email or any other form of electronic communication, commits the offence of stalking. However, certain behaviours are exempt from the definition of stalking. Particularly, it is not an office if the stalking it was pursued for the purpose of preventing or detecting crime and the accused had been entrusted with the responsibility of prevention and detection of crime by the Government; or if the stalking was pursued under any law or to comply with any condition or requirement imposed by any person under any law; or if in the particular circumstances such conduct was reasonable and justified. On the first conviction, the punishment is imprisonment for up to 3 years and also a monetary fine. For second or subsequent conviction, the punishment is imprisonment for up to 5 years and also a monetary fine.

(h) For rape (Section 376). The punishment for rape is a minimum imprisonment of 7 years (which can extend to a life term) and a monetary fine. A convict of marital rape can be punished with imprisonment of up to 2 years or with a monetary fine or both. In case of rape by a public servant in abuse of his duty, rape of a pregnant woman, rape of a woman under 12 years of age and gang rape, punishment is a minimum imprisonment of 7 years (which can extend to a life term) and a monetary fine.

(i) For uttering any word or making any gesture intended to insult the modesty of a woman (Section 509). If the accused utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by the survivor, or intrudes upon the privacy of the survivor, he shall be punished with imprisonment of up to 1 year, or with fine, or with both.

In case of any of these offences, the survivor can file a complaint at the nearest police station. The complaint can be made orally or by a written letter. The complaint should contain a description of each incident with the relevant dates, timings, locations, and the name of the accused (if known). The complaint may be made by the survivor, his or her relative, friend, or by any person who has knowledge of the incident and who has the written permission of the survivor to make the complaint. There is no requirement to mention a particular Section while filing a complaint; however, do ensure that the First Information Report (FIR) that is recorded by the Police mentions the facts fully, as the charges against the accused are framed on the basis of the FIR and the police investigation.

If the harassment has occurred at a woman’s workplace, during the course of her employment, at her educational institution or at a hospital where she is admitted.

In such cases, relief is available under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

a. The Act protects all women, irrespective of age or employment status, whether in the organized or unorganized sectors, public or private and covers clients, customers and domestic workers as well.

b. It is mandatory to set up an Internal Complaints Committee at each office or branch with 10 or more employees, to investigate all complaints of sexual harassment by workplaces, educational institutions and hospitals. If such a committee is not set up, the business may be punished with a fine of up to Rs. 50,000. Repeated violations may lead to higher penalties and cancellation of license or registration to conduct business.

c. A case can be filed before the Internal Complaints Committee by the survivor, her relative, friend, or by any person who has the knowledge of the incident and who has the written permission of the survivor to make the complaint.

d. The complaint should contain a description of each incident with the relevant dates, timings, locations, and the name of the accused (if known).

e. The inquiry process is confidential and a person who breaches confidentiality has to pay a penalty of Rs 5,000.

f. The Committee is required to complete the inquiry within a time period of 90 days. After completion of the inquiry, a report will be prepared and acted upon within 60 days.

What is the next step?

Sexual harassment is a stark reality for many men and women alike. Often, this crime leaves the victim mentally distressed and unable to retaliate. Many survivors decide to withdraw from the situation by changing their jobs and homes; others learn to accept the situation over a period of time. With the legal support now available by way of laws and access to legal professionals, the survivor of sexual harassment now has another choice: to get justice. It is easier than ever before for a survivor to talk to a lawyer about the various legal rights and the way in which these rights can be enforced.

The mentality of people is slowly changing. People are accepting that the crux of the problem lies in the perpetrators and not the innocent women. The government needs to aim at awareness among women and men about sexual harassment not only in the urban areas but also in the rural areas.

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