In a society that places the men on a higher ground than women, it is the womenfolk who have to bear the brunt. The place women hold in society is reflected by the laws made to safeguard their persons. Section 376DB of Indian Penal Code, 1860 defines the punishment of the gangrape of a woman less than twelve years of age; these words enough speaks volumes about the place women find themselves in this hedonistic world. Domestic violence and harassment are two of many crimes against women committed that the Indian law penalises. The Indian Penal Code, 1860 in Sections 354, 354A and 354B encapsulate the crime of harassment of different forms against women while Chapter XXA defines the cruelty by husband or relatives of the husband. Different acts have been enacted by the legislature of India to protect women against harassment at the workplace and domestic violence. To compare these two crimes against women, understanding the laws relating to them is pertinent.
HARASSMENT OF WOMEN:
In the layman’s language harassment in general, terms refers to the act of annoying or worrying somebody by putting pressure on them or saying or doing unpleasant things to them[1]. Harassment, when used about the women, is often substituted for sexual harassment which means comments about sex, physical contact, etc., that a person finds annoying and offensive[2]. Sexual harassment against women in India is a criminal offence. Indian Penal Code, 1860, defines the act of sexual harassment against women in the section 354A sub-section (1) under chapter XVI as (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. A man, if found guilty of committing an act abovementioned under clauses (i) or (ii) or (iii), may land himself in rigorous imprisonment leading up to three years and fine; if found guilty of the actions mentioned under clause (iv), the man may land up in imprisonment for one year and fine. The acts mentioned in the four clauses fit perfectly as acts of crime for these acts offend the sensibility of a regular person. However, the section defining and penalising these acts was not in the I.P.C. until the year 2013.
Though the despicable acts have been committed since long before they were criminalized, it took the crime of a sad and gruesome gangrape[3] to act as a catalyst to add this section[4] in the Indian Penal Code, 1860. A separate act was passed by the legislation in the year of 2013 to ensure the safety of women against sexual harassment in their workplace. The Sexual Harassment of Women at Workplace (Prevention, Protection and Redressal) Act, 2013 was brought into force from 9th of December, 2013. The Act states in its preamble[5] that the act of sexual harassment goes against the fundamental right to equality of women as enshrined in articles 14 and 15 of the Constitution of India and the right to live with dignity under Article 21 of the same. The Act defines Sexual harassment at workplaces and encourages instituting Internal Complains Committee at workplaces with ten or more employees. The Act supersedes the Vishaka Guidelines as this encompasses every aspect and result of sexual harassment of women at workplace. The difference between the sexual harassment under the Indian Penal Code and the Sexual Harassment of Women at Workplace (Prevention, Protection and Redressal) Act is that the latter only covers sexual harassment at workplaces while the former acts as an umbrella, irrespective of the place the crime was committed. The I.P.C. criminalises the act of sexual harassment while the Sexual Harassment of Women at Workplace (Prevention, Protection and Redressal) Act gives civil remedies and damages. Owing to the abovementioned factors, a woman if sexually harassed at work can register to complain under both the Code and the Act without giving rise to double jeopardy.
DOMESTIC VIOLENCE AGAINST WOMEN:
The section 498A of Indian Penal Code defines the term and punishment of cruelty against a woman by her husband or relative of her husband. The section defines cruelty as the conduct which leads a woman to die by suicide or causes grave injury to her person or her mental or physical health. It also takes into consideration the harassment of the woman or her relative for unlawful demand of property, or valuable security or the harassment which ensues for the lack of such. On committing such an act, the husband or his relative if found guilty, can land themselves in imprisonment for a term which may extend to three years with addition to a substantial amount of fine. The section was inserted in the Indian Penal Code by Act 46 of 1983, section 2. It was, however, the enforcement of the Protection of Women from Domestic Violence Act, 2005 in 2006 that first defined Domestic Violence as a separate term. The actin section 3 defines the domestic violence as an act that (i) harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or (ii) harasses, harms, injures or endangers the aggrieved person to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or (iii) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or (iv) otherwise injures or causes harm, whether physical or mental, to the aggrieved person. It also goes on to explain the four types of abovementioned abuses. As in the case of sexual harassment, this act is civil and the cruelty mentioned in the I.P.C. is criminal.
COMPARATIVE ANALYSIS:
Sexual harassment and domestic violence both harm women’s psychology and detrimentally affect the way they function in society. However, if both crimes had to be evaluated, the harm caused by domestic violence on women is way greater than sexual harassment, not discounting the negative effect of the latter. In the year 2019, the reports of National Commission of Women suggest that the complains for sexual harassment overall were around the figures of 996 while the complaints of harassment of married women/dowry harassment and domestic violence were 6,843. Even if the statistics are not taken into consideration, the environment and place of the crime itself provide the graveness of the situation.
When a woman is harassed, it is a place she works at or a place where she may not to connected emotionally; the perpetrator is often a colleague or an unknown person from which she does not connect for emotional support; a home for a haven is waiting as a safe place to go back to; with this crime she can feel the anger and offence without an ounce of guilt. The term domestic violence holds the key to its graveness. The crime is committed behind the close doors in a place which was meant to be a heaven to go back to, the crime scene is her home; a perpetrator is a person she has known as a family, a person she was meant to rely on; if she files a complaint, she would be jeopardizing her family relation. The colour of the talks surrounding the crimes in society will be way different. Sexual Harassment will bring out the dirt in the society as a whole, while domestic violence will bring out the dirt from her own home; they say blood is thicker than water.
Though the victim of sexual harassment at the workplace may hesitate to report the crime if the perpetrator is superior in whose hands her career resides, nearly every victim of domestic violence hesitates from seeking help. Under the Vishaka guidelines and the Sexual Harassment of Women at Workplace (Prevention, Protection and Redressal) Act, 2013, the workplaces have a code of conduct and an internal redressal system, owing to which the perpetrators may fear for their careers, domestic violence has no such arena.
When weighing the two evils, domestic violence is greater of the two evils. However, while analysing the greater of the two evils, it is important to not to discount any crime, especially when women find themselves in these vulnerable conditions.
References:
[1] Harassment, Oxford Learner’s Dictionary, https://www.oxfordlearnersdictionaries.com/definition/english/harassment
[2] Sexual Harassment, Oxford Learner’s Dictionary, https://www.oxfordlearnersdictionaries.com/definition/english/sexual-harassment
[3] How Nirbhaya case changed rape laws in India, The Times of India, https://timesofindia.indiatimes.com/india/how-nirbhaya-case-changed-rape-laws-in-india/articleshow/72868366.cms
[4] The Criminal Law (Amendment) Act, 2013. No. 13 of 2013
[5] The Sexual Harassment of Women at Workplace (Prevention, Protection and Redressal) Act, 2013, Acts of Parliament, 2013
This article is authored by Setakshi Pratha, First-Year, B.A. LL.B. (Hons.) student at Rajiv Gandhi National University of Law.
Also Read – Domestic Violence Act And Its Abuse
