Introduction
The sexual victimization of the vulnerable population is one of the worst forms of human rights violations. The lassitude in enacting a gender-neutral anti-sexual harassment law in India is the concomitant of the big artifice of perception that women are buffeted by the punitive costs of failing to perform expected favours; hence, it is a gender-specific issue. One of the determinants of target victim selection by perpetrators is based on the extent to which an individual is perceived to be vulnerable. The vulnerability of the victim contributes to victimization. Even though various researches show that both men and women can be victims and perpetrators of harassment,[1] just because it is expedient, the concept of vulnerability is regarded to be linked with femininity, and femaleness. The notion is inculcated with considerable accentuation placed on the patriarchy, and unequal power relations that led to the deterioration of women’s rights ever since the post-Vedic period when men were the only breadwinners of the family.
The advent of technology has enabled the population to form virtual communities to interact, share, swap ideas, and live in cyberspace in a manner, which may not possible in real space. The larger influx of people on the internet contributed to the emergence of divergent crimes, the sexual harassment has exhibited its various dimensions. The conflict and dispute are the cause and the law is the effect. Conflict arises with interactions of people in a public place, for instance, when women stepped out of the doors of their homes, where they have been confined for decades, their participation in the workforce sprung from the notion of equality, the society has witnessed a new form of gender discrimination called workplace sexual harassment. To restore equality, gender parity, and order in society, The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 was enacted. Comprehensively, the ‘conflict arises with the interaction of people i.e. conflict is when there is something to share’, the cyber world is fraught with abusers as technological advancement has brought on myriad opportunities for offenders. They take advantage of the fact that cybercrimes require relatively fewer resources and they could hide on the web, where they can remain anonymous. As being equivalent to the physical realm, it has to be in line with the laws which are governing the real world. Per contra, the status quo is abysmal as the internet is proved to be the vanishing point of law.
This brief seeks to study various dimensions of sexual harassment by deciphering the Indian legal framework and how far its implementation has been thwarted by techno-progressivism. The primary focus is on to analysis of the grey areas in the legislations and aegis of the internet in providing the opportunity to evade the existing anti-sexual harassment laws.
Legislative Framework
Harassment is the intimidating behavior that creates a hostile environment to work or dwell in; it can be of many forms and be the outcome of many causes. Some of the general forms of harassment are,
In a broader context, the aforementioned harassments are encapsulated into two,
- Intimidating harassment, and
- Sexual harassment
The former denotes the physical or verbal abuses that humiliate and impede an individual or group of individuals from performing normal tasks as it is of the nature of a tirade of desecrating religious beliefs, degrading comments, and deliberately insulting the victim’s professional or personal competence. Whereas, the latter is of sexual nature which is unwelcoming, embarrassing, or offensive to the individual subjected to it.
Sexual harassment is the repercussion of uneven power dynamics that could be between men and women in the place of employment or between authority and subordinates. In line with the rationale of the historical judgment, where it was upheld that regard should be given to the international conventions and norms when there is no domestic law to address the issue, the Apex court elucidated that sexual harassment includes unwelcome sexually determined behavior (whether directly or indirectly) as:
- Physical contact and advances;
- Sexually coloured remarks;
- A demand or request for sexual favours;
- Showing pornography;
- Any other unwelcome physical, verbal or non verbal conduct of sexual nature.[2]
By referring to the proviso of the Convention on the Elimination of All Forms of Discrimination against Women, the emphasis was placed on Article 11 of the Convention, which strives to provide that there is no discrepancy in the field of employment. [3]After disclosing the issue of sexual harassment at the workplace which has been swept under the carpet over many years to the world with the banner of Vishaka, the POSH Act was enacted after 16 years of the judgment.
Prevention of Sexual Harassment at Workplace Act, 2013
The POSH Act, 2013 protects women from sexual harassment at the workplace; hence it is not gender-neutral legislation but women-specific legislation, which was enacted by the virtue of Article 15(3) of the Indian Constitution. The Nutshell of the Act is as follows,
Sexual harassment is the catchall term that encompasses all acts ranging from eve teasing to rape. Eve teasing is the expression of words, gestures, or something that delicacy, purity, and decency forbid to be expressed towards a woman by a man in a public place. In the case of Zafar Ahmed Khan v. State,[4] it was held by the court that mere annoyance caused to a public member is sufficient enough to prove the offence under Section 294 of IPC. Though many eve teasing acts supposed to be considered sexual harassment are overlooked by taking women’s silence as acquiescence, it was rightly upheld in the case of Dy. Inspector General of Police v. S. Samuthiram[5] that the act of eve teasing deprives women of their fundamental rights enshrined under Articles 14, 15, and 21 of the Indian Constitution. To proscribe one of the dimensions of sexual harassment that appears to be disturbing, upsetting, and embarrassing to a woman, and might evoke a corrupted effect on society, the Indecent Representation of Women (Prohibition) Act, 1986 was enacted.
Digital Sexual Harassment
As since people’s daily life has inextricably mixed with online, the indecent representation of women acts legislated to obviate indeterminate representation of women through printed media, was proposed to be amended in the year 2018 to extend its scope to cover cyberspace as well. But, later it was withdrawn as the government claimed that the IT act, IT rules, and Home Minister’s cyber portal have adequate regulation to address this issue and make cyberspace safer for women.[6] However, questions that seem to be res intergra are, Are really women not being caught on the web? And, the existing legal framework is adequate enough to counter the offence of sexual harassment, or just struggling to par with the technological advancement? Before attempting to answer these questions it is a prerequisite to bear in mind that the discriminatory violence of sexual harassment is renowned to be existing only in the workplace by blinding the fact that it is out there everywhere, one of its dimensions that is stealing the limelight by its whopping rise of cases is digital sexual harassment.
The promulgation of the Criminal Law (Amendment) Act, 2013, which amended different provisions of the Indian Penal Code, Indian Evidence Act, and the Criminal Procedure Code, was the aftermath of the Nirbhaya incident. Through The amendment, Sections 354A, 354B, 354C, and 354D of IPC were inserted to curb the multiplying cases of sexual harassment and sexual assault against women. These provisions in tandem with IT Act intend to protect women at stake in cyberspace as it is being a fertile ground for technology-facilitated gender-based violence.
To the common knowledge, cyber harassment is of 11 types viz. Cyber Bullying, Cyber Teasing, Cyber Stalking, Cyber Defamation, Identity Theft, Catfishing, Doxing, Swatting, Cyber Trolling, voyeurism, and Revenge Porn. A research[7] report informs that 83% of Indian women had been subjected to online harassment of one or another kind throughout 2021. Reiteratively, in the case of Vishaka v. the State of Rajasthan, the court has defined what amounts to sexual harassment, applying that definition to online sexual harassment; the only difference pertaining to the issue would be the lack of physical element or touch, yet capable of causing all other equivalent impacts on the victim.
Conclusion
It has been posited for a long that the internet is the vanishing point of law; this relies on the fact that when cyberspace is unorganized, the institutions investigating cyber crimes are not established in a wider sense. The question of whether technology is a boon or ban is the outcome of the long-standing inadequacy of law in paring with the advancement of technology. Unless the root cause analysis technique is employed to ascertain where the law is lagging and why technology is being the biggest impediment to the implementation of existing sexual harassment in law, the attempts on filling the gaps in legislation would remain as a will-o-the wisp. Online sexual harassment crosses into physical space as well, yet many of cyber harassment have been normalized. Research[8] conducted by the international center on research on women, United States addresses online sexual harassment as Technology-facilitated gender-based violence since the findings provide that the majority of people identified to be the victims of such offense are women. The research report has provided the guidelines as to how such violence can be measured by acknowledging that data is the knowledge that helps in data-based policy making, the paucity of information will result in wasting resources due to the actions are not taken on based on the unerring conclusion. Thus, the government should centralize the data before making policies and consider amending certain provisions of the IT Act, POSH Act, and IPC as well to include extinguish the ambiguities on provisions and address the questions viz. what constitutes sexual harassment, the responsibilities of an employer( sexual harassment at the workplace), and Technology service providers (sexual harassment at cyberspace), the remedies available to the victims, preventive measures, the establishment of committees at the grass root level, investigation procedure and so on.
References:
- Batool Zahoor Qazi, Sexual Harassment Laws in India: Thus Far and Further, AMITY UNIVERSITY, https://www.amity.edu/UserFiles/Journal/8.pdf (last visited Jul. 19, 2022).
- Tashafi Nazir, Online Sexual Abuses among Women on Rise amid Covid-19 Crisis, THE LOGICAL INDIAN, Jul.17 2022. https://thelogicalindian.com/gender/online-sexual-abuses-among-women-on-rise-2933
[1] SCC Online, https://www.scconline.com/blog/post/tag/sexual-offences-against-men/ (last visited Jul. 20, 2022).
[2] Vishaka v. State of Rajasthan, 1997 SC 3011.
[3] Convention on Elimination of all Forms of Discrimination Against Women, 1979, https://www.ohchr.org/sites/default/files/Documents/ProfessionalInterest/cedaw.pdf
[4] AIR 1963 ALL 105.
[5] AIR 2013 SC 14.
[6] The Economic Times, Citing IT rules, Other Laws, Government withdrawn Bills on Women Portrayal in Media, Jul. 26, 2021, https://economictimes.indiatimes.com/news/india/bill-on-women-portrayal-in-media-withdrawn/articleshow/84739737.cms?from=mdr.
[7] Tashafi Nazir, Online Sexual Abuses among Women on Rise amid Covid-19 Crisis, THE LOGICAL INDIAN, Jul.17, 2022. https://thelogicalindian.com/gender/online-sexual-abuses-among-women-on-rise-2933.
[8] Technology-Facilitated Gender-Based Violence: What it is, And How do we measure? https://www.svri.org/sites/default/files/attachments/2018-07-24/ICRW_TFGBVMarketing_Brief_v8-Web.pdf (last visited Jul. 20, 2022).
