By
Harshita Tyagi, I Year of B.A.,LL.B(Hons), from BML Munjal University
Introduction
The metoo movement has emerged as one of the biggest global campaigns against sexual assault and sexual harassment. The “metoo” movement was founded by Tarana Burke in 2006; however, it was in the year 2017 that the metoo hashtag went viral and woke up the world to the magnitude of the problem of sexual violence.
The movement gained such support and popularity that many label it as the fourth wave of feminism. The movement saw numerous survivors, of various genders, from all around the world sharing their experiences of sexual offences through social media and public platforms under the hashtag ‘metoo’. In India, the rise of the #metoo movement took place in 2018 when multiple Bollywood celebrities and other public figures were brought under scrutiny with allegations of sexual assault and harassment.
The following years saw many criminal suits being filed for various sexual offences and thus re-instigating the discussion on sexual offenses and their remedies available in India. Another issue that found its way during these times was the problem of frivolous and malicious complaints. Since the criminal justice system in India is hinged on the principle of ‘innocent until proven guilty’, it is often misused by people to drag someone into the long, rigorous process of litigation. The consequences of the metoo movement can be assessed as being twofold; one pertaining to sex offenses and the other with malicious complaints.
Legal consequences
The Indecent Representation of Women (Prohibition) Act, 1986
The bill was introduced in Rajya Sabha and became law in October 1987 by way of enactment. Even though section 292, 293 and 294 of the IPC cover laws on obscenity, there was continued indecent representation of women in the media, especially the print media like magazines, ads, publications etc. As mentioned above, the scope of the metoo movement has expanded and may in some cases deal with matters of indecent representation of women in the media. There can be instances of character assassinations, questions on modesty and misogynistic portrayal of women in different forms of media which in turn can rob women of their peace of mind, reputation and even careers.
Section 3 of the act states –“No person shall publish, or cause to be published, or arrange or take part in the publication or exhibition of, any advertisement which contains indecent representation of women in any form.”
Section 6 of the act suggests a penalty for such conduct. It says that on first conviction the person shall be punishable to imprisonment that may extend up to 2 years and with a fine that may extend to two thousand rupees; however, on the second or subsequent conviction, the convict shall be punishable for imprisonment not less than six months but which may extend to 5 years and a fine not less than ten thousand rupees but which may extend to one lakh rupees.
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 or the ‘POSH Act’
The Indian Ministry of Women and Child Development notified December 09, 2013 as the effective date of the POSH Act and the POSH Rules. It was India’s first legislation specifically addressing the issue of workplace sexual harassment. However, it was in the landmark judgment of Vishaka and Others Vs. State of Rajasthan and Others (JT 1997 (7) SC 384), the Supreme Court recognized the issue of sexual harassment at work place and laid down elaborate guidelines to deal with the peril of sexual harassment against women at workplaces. Section 2(n) of POSH Act defines ‘sexual harassment’; it is defined in line with the Supreme Court’s definition of ‘sexual harassment’ in the Vishaka Judgment.
The metoo movement in specific saw innumerable cases related to sexual harassment at workplaces which ranged from media houses, film sets, government organizations and so on. It becomes pertinent to get a grasp on what exactly is sexual harassment as defined by the act. As per the POSH Act, ‘sexual harassment’ includes unwelcome direct or implied sexually tinted behavior such as - (i) physical contact and advances, (ii) demand or request for sexual favours, (iii) making sexually coloured remarks, (iv) showing pornography, or (v) any other unwelcome physical, verbal or non-verbal conduct of a sexual nature. The scope of the definition is rather wide, but seeing it from a social point of view it is quite appropriate. In organizational setting, structural and systematic sexism is common. An employee may make gestures, expressions or movements which are inappropriate and may cause mental agony to the woman.
The act also suggests the formation of an internal committee to hear complaints and solve grievances. Any aggrieved woman may make complaint to the internal committee; the committee then, at the request of the aggrieved woman, may take steps to settle the matter through conciliation. However, if the matter isn’t settled through conciliation, the internal committee or the local committee may initiate the investigation.
If the alleged employer is found guilty, the POSH Act prescribes certain punishments for the same; they include – punishment prescribed under the service rules of the organization and if the organization does not have service rules, disciplinary action must be taken against that person; deduction of compensation payable to the aggrieved woman from the wages of the respondent. The POSH Act also envisages payment of compensation to the aggrieved woman. However, as discussed earlier, there might be complaints that are fake or malicious in nature. In such instances, the POSH acts suggest for action to be taken against such complainants in accordance with the service rules of the organization.
The Criminal Law (Amendment) Act, 2013
The Criminal Law (Amendment) Act, 2013 came into force on the 3rd of February following the outrage caused by the Nirbhaya rape case in 2012. It amended as well as inserted new sections in the IPC with regard to various sexual offences. This act made extraordinary changes to the laws dealing with sexual offenses in India as it criminalized sexual voyeurism and stalking. Section 294, 354 and 509 of the IPC deal with the offenses of sexual harassment, and they existed before the amendment. Section 354 (c) deals with voyeurism. It suggests that in case of first conviction, imprisonment is not to be less than one year, but may extend to three years, and shall also be liable to fine, and on a second or subsequent conviction, punishment with imprisonment of either description for a term which shall not be less than three years, but which may extend to seven years, and shall also be liable to fine.
Stalking is also made a specific offence under section 354 (d); if a man stalks a woman, he would be punishable for imprisonment up to three years on the first conviction and for five years in the case of subsequent conviction. The act also expanded the definition of rape by amending section 375. Rape would also include oral sex as well as the insertion of an object or any other body part into a woman’s vagina, urethra or anus. The punishment for rape is seven years but may extend up to life imprisonment. It also suggests capital punishment for rape in ‘rarest of rare cases’.
Malicious Cases and Remedies
Sex offences are serious issues that need to be dealt with urgency and efficiency. However, it would be naïve to look at only one side of the story. After the introduction of the 2013 amendment, the laws and punishments regarding sex offences have become stricter, therefore it shouldn’t be overlooked that these provisions are often misused. Mostly, all offences related to sexual harassment and rape are cognizable under the CrPC, i.e. the police officer need not have a warrant to arrest the accused. Such provisions are added for the benefit of the victim, but in turn are often used by people to file false complaints.
The entire idea is to put a false allegation on someone and drag them through the long process of litigation. The metoo movement also brought to light the issue of such claims and what followed was a series of defamation suits. Section 193 of the IPC prescribes the punishment for presenting and fabricating false evidence and section 211 of the IPC prescribes punishment for the offence of putting false charges on someone with the intent to cause injury. Apart from these the accused person can also file a suit for defamation, which is also quite in trend. If it is proved, it could lead to a prison sentence of up to two years for the ‘aggrieved’ woman.
Conclusion
The metoo movement has brought the issue of sexual harassment back to light. It has given people an opportunity to contemplate and recalibrate their laws on sexual offences and their implementation. The movement acted as an alarm call to the world, shaking the world with the sheer number of survivors who came forward to tell their stories. The popularity of the movement also called for discussions on the legal implications that it may have on both the parties involved. In the Indian context, the conversation on the metoo movement remained multifold. The legal consequences of sexual offences in India are severe as there are very strict punishments for sexual harassment and rape. Thus, if a person is held guilty of the accusations made by a survivor through the metoo movement then he will face harsh imprisonment along with fines. But another side of consequences may include cases of malicious prosecution and defamation charges being put on the ‘aggrieved woman’.