MODULE -6

SEXUAL OFFENCES

 The word, ‘rape’ is derived from the Latin word ‘rapio’ which means ‘to seize’.
Rape, in its simplest form, signifies the ravishment of a woman against her will
or without her consent obtained by force, fear or fraud or the carnal knowledge
of a woman by force against her will.

 Section 375 of IPC in essence, defines rape as coercive non-consensual sexual

intercourse between a man and a woman in a set of specified circumstances.

 However the original Section 375 has been modified by 1983, 2013 and most
recently, the 2018 amendment triggered by cases of custodial rape, brutal
gang-rape of a woman in a moving bus and child rape respectively.

2013 Amendment:
NIRBHAYA CASE (Mukesh v NCT Delhi) Criminal Appeal No. 607/2017:
 The definition of rape was broadened after the December 23, 2012 brutal gang-
rape and murder of a woman in Delhi. This case shocked the conscience of the
nation and led to collective outrage and protest. In response, the Government
of India convened a three-membered committee of retired justices headed by
Justice J. S. Verma who were tasked with the production of a report suggesting
changes in the criminal justice framework for enhanced punishment of
offenders and quick access to criminal justice for sexual violence victims.
 The committee, in its report (‘Verma Committee Report’), suggested
monumental changes in criminal law from which the current wide definition of
rape and other sexual offences emerged. It also prescribed procedural
safeguards in cases of rape.
 Most of these suggestions were incorporated in the Criminal Law Amendment
Bill, 2013 (‘2013 Amendment’) which introduced amendments in IPC, CrPC and
Indian Evidence Act.

SECTION 375:
The essential ingredients of rape are:
(a) There must be sexual intercourse as understood in terms of provisions S.375
(a) to (d) by a man on a woman.
(b) Such a sexual intercourse must be under the following 7 circumstances:
1. Against her will
2. Without her consent
3. With consent obtained under fear of death or of hurt
4. Consent given under misconception of fact
5. Consent given by reason of unsoundness of mind or intoxication
6. With a woman under eighteen years of age, with or without consent
7. With a woman who is unable to communicate consent

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Section 375 (a) to (d):
 One of the major reforms of the 2013 amendment was the broadening of the
traditional penile-vaginal definition of rape where penetration was not
restricted to penis but could also include mouth or any other object and such
insertion was not restricted to the vagina but also included the mouth, anus or
urethra.
 Sexual intercourse, within the meaning of this Section is not limited to
vaginal penile penetration but also extends to penile-urethra, or penile-
oral or penile-anal penetration.
 Insertion of a part of a body, other than the penis in the vagina, urethra,
anus of a woman
 Manipulation of any part of body of a woman for causing vaginal, urethral
or anal penetration.
 Application of mouth by a man to the vagina, urethra or anus of a woman.

Section 375 Firstly to Seventhly:

1. AGAINST HER WILL
This is the first condition given under circumstances when it will amount to
rape. ‘Against her will’ and ‘without her consent’ appear synonymous and often
intermingle. Will and consent, in spite of overlapping, are distinct. An offending
act is done against the will of a woman when it is done despite her resistance.
‘Without consent’ on the other hand, comprehends an act of reason
accompanied by deliberation. Consent is the active will in the mind of a person
to permit the act and knowledge of what is to be done. State of Uttar Pradesh
v Chhoteylal (2011) 2 SCC 550.

2. WITHOUT HER CONSENT

 Consent involves a voluntary act and conscious acceptance of what is proposed
to be done by another and concurred in by the former. It implies the exercise
of free and untrammelled right of the former to forbid or withhold what is being
consented to. Consent supposes three things - physical power to act, mental
power of acting and free and serious use of them.
 Hence, will is mere want, desire or longing to do something whereas consent is
the permission or acceptance to do something. Consent follows when will is
formed, i.e. it is the active showcase of will. Therefore, willingness is a state of
mind and consent is the evidence of that condition.
Example: A wants to eat ice-cream. Therefore, he has formed the will of eating
ice-cream after making a conscious decision. Now, B asks him whether he
would eat a sundae. If A agrees, he gives consent to eat the ice-cream.

 Previous sexual conduct of victim/passive submission does not amount to

consent:
TUKARAM v STATE OF MAHARASHTRA AIR 1979 SC 185 (MATHURA
RAPE CASE)
 On 26.3.1972, Mathura, a Harijan orphan girl, aged about 16-18 years
old, alongwith her brother and another person went to the police station
for recording a statement. The policeman asked her companions to move
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 out and asked Mathura to stay in the police station. Immediately
thereafter, one of the accused raped her. The trial court acquitted the
accused on ground of tacit consent of the victim.
 However, the Bombay High Court reversed the acquittal, observing the
difference between ‘consent’ and ‘passive submission’. It held that mere
passive or helpless surrender of the body and its resignation to other’s
lust, induced by threats or fear, cannot be equated with ‘desire or will’.
 However, Supreme Court reversed the HC verdict and said that since
there were no injuries found on Mathura, it was a peaceful act and she
was deemed to have consented. At that point of time, onus was always
on the prosecution to prove all ingredients of Section 375.
 Only a few days after the verdict was pronounced, law professors
Upendra Baxi, Raghunath Kelkar and Lotika Sarkar of Delhi University
and Vasudha Dhagamwar of Pune wrote an open letter to the Supreme
Court, protesting the concept of consent in the judgment. "Consent
involves submission, but the converse is not necessarily true...From the
facts of case, all that is established is submission, and not consent...Is
the taboo against pre-marital sex so strong as to provide a license to
Indian police to rape young girls."
 In response to such outrage, in order to nullify the judgement of the
Supreme Court in this case, amendments were introduced in 1983 such
as Section 114A of the Evidence Act [Presumption of absence of consent].
This Section states that if the victim says that she did not consent to the
sexual intercourse, the Court shall presume that she did not consent as
a rebuttable presumption. Hence, once sexual intercourse is established,
the burden of proof shifts to the accused to show that there was consent.
 New provisions were also added in the 1983 amendment. The Section
376 (punishment for rape) of the Indian Penal Code underwent a change
with the enactment and addition of Section 376(A) to 376(D), which made
custodial rape punishable. The 1983 amendment also added provisions
for in-camera trials, the prohibition on the victim identity disclosure and
tougher sentences.
 Hence, now just because there is no physical resistance on behalf of the
victim or there is an absence of injuries, does not automatically mean
that the prosecutrix gave consent for the sexual intercourse. This
position has been re-affirmed with the recent 2013 Criminal law
Amendment which has inserted a proviso to Section 375. The proviso
states that the absence of physical resistance to penetration shall not by
reason only of such fact, be treated as consent to the sexual activity.

STATE OF HARYANA V PREM CHAND (1990) 1 SCC 249 (Victim’s character

is irrelevant in a rape trial)
 In this case, the victim was raped by three accused persons. The medical
officer, on examination, said that, the girl used to have frequent sexual
intercourse and there was no mark of violence of sexual assault.
 Appellants had argued that since the woman was of “questionable
character and easy virtue with lewd and lascivious behaviour”, her
version was not worthy of acceptance by the court.
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  In response, the Supreme Court held that the
character/status/reputation of woman has no relevance in deciding the
sentence of the accused in a rape trial. The court emphasized that such
factors are alien to the scope and object of Section 376 and can never
serve as mitigating circumstances regarding punishment of accused. The
dignity and decency of a woman must be upheld in all rape trials.

 This position is also reflected in Section 53A of The Indian Evidence Act
which has been added recently by the 2013 amendment. Section 53A
states that relevant evidence in a court shall not include evidence relating
to past sexual experience/character of a victim. Therefore, where the
question of consent is in issue, evidence of the character of the victim or
of such person's previous sexual experience with any person shall not be
relevant on the issue of such consent or the quality of consent in a rape
trial.

3. CONSENT GIVEN UNDER FEAR:

 Here Section 90 of the IPC is relevant – This Section provides that consent
under fear, misconception, by insane person, or by child is not valid
consent. In a sense, clauses 2,3,4,5,6 of S.375 reinforce this provision of
S.90. The fear leading to the consent for sexual intercourse must be of
death or hurt to herself or to a person in whom she is interested.

 RAO HARNARAIN SINGH SHEOJI SINGH v THE STATE AIR 1958 Punj
123
 Rao Harnarain Singh was entertaining guests. He called his tenant,
Kalu Ram and asked him to send his wife Mrs. Surti aged 19 years,
for the carnal pleasure of himself and his guests. The girl protested
vehemently but under the pressure of her husband, under
compulsion, she was induced to agree.
 The defence argued that the girl was a consenting party and had
submitted her body willingly. The court held that a mere act of
helpless resignation in the face of inevitable compulsion, passive
giving in, either by fear or duress cannot be deemed to be consent.
Submission of body under influence of terror/fear is not consent.
 There is a difference between consent and submission, every consent
involves a submission but the converse does not hold true. A woman
is said to consent only when she freely and voluntarily participates in
the sexual act and is in an unconstrained possession of her mental
and physical power to act in a manner she wanted.

 STATE OF MAHARASHTRA vs PRAKASH AIR 1992 SC 1275

 In this case, the question was whether the said intercourse had taken
place with the consent of the woman or was it a case where she was
deprived of her will by show of authority and beating administered to
her husband by the respondent, a police constable, accompanied by
threats of putting them in police remand.
 The Supreme Court held that it was an offence of rape. The court held
that for an offence of rape, it is not necessary that there shall be actual
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 use of force. Threat of use of force is sufficient for it to be a negation
of consent under Section 375. The constable, the accused in this case
was a figure of absolute authority to the helpless woman who was a
rustic villager and accompanied by such threats, she had no option
but to submit to his will. Such submission does not amount to
consent and hence, it is a case of rape.
4. CONSENT GIVEN UNDER MISCONCEPTION:
 Consent obtained by a false promise to marry is not a true consent.
Mere breach of promise to marry without mala fide intention, does not
amount to deception.

 DEELIP SINGH v STATE OF BIHAR (2005) 1 SCC 88

 The appellant was charged under Section 376 IPC for committing
rape of a minor girl. The victim lodged a complaint to the police,
alleging that the accused forcibly raped her and later consoled her by
saying that he would marry her. She agreed to have sexual
intercourse with him on account of promise of marriage made by him.
After she became pregnant, the accused refused to marry her.
 For the misconception to come under clause (4), it must be shown
that the man never really intended to marry her and the promise was
a mere hoax. In this case, the woman took a conscious decision to
participate in the sexual act only on being impressed by the accused’s
promise to marry her and the accused’s promise was not false from
the inception with the intention to seduce her to the sexual act.
 As a result, his conviction of rape was set aside. At best, court said
he would be liable for breach of promise to marry for damages in civil
law.
 Therefore, subsequent withdrawal of promise of marriage is not
punishable if the accused did not have a malafide intention to have
sexual intercourse when he made the promise to marry in the
beginning. An example of malafide intent is when the accused
conceals his first marriage from a woman and has sexual intercourse
with her based on the false promise that he would marry her.

5. CONSENT GIVEN BY PERSON OF UNSOUND MIND:

 TULSHIDAS KANOLKAR vs STATE OF KANOLKAR (2003) 8 SCC 590
 The mental faculties of a victim were underdeveloped and her IQ was
1/3rd of that of a normal person. Her parents noticed her legs were
swollen and took her to a doctor and were shocked to know that their
daughter was pregnant.
 The court held that it could not be said that the victim had sexual
intercourse with consent. For consent, there must be exercise of
intelligence based on knowledge of significance and moral effects of the
act. In this case, the victim could neither understand the significance of
the sexual act nor its consequences, i.e. her pregnancy.
 Therefore, an act of helpless resignation in the face of inevitable
compulsion, non-resistance or passive giving in when faculty is either

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 clouded by fear, or vitiated by duress or impaired due to mental
deficiency cannot be considered consent as understood in law. Hence, it
was held that it was a case of rape.

6. CONSENT BY MINOR:
The section specifies the statutory age of consent as 18 years. Earlier it was 16 years
and it has been enhanced to 18 years by the 2013 amendment.
 SIDHESWAR GANGULY v STATE OF WEST BENGAL AIR 1958 SC 143
 The appellant was the Secretary of Nari Kalyan Ashram (women’s shelter)
and requisitioned services of girls staying there to massage him at night. On
this pretext, he had sexual intercourse with one of the girls.
 Though the birth certificate of the victim was not available, by means of an
X-ray examination and the stage of ossification and taking into account her
physical characteristics and other indicia, the medical estimate of her age
was between 13 and 14 years of age on the date of the X-Ray examination.
 It was held that consent is immaterial when she happens to be under 16
years of age and hence, it was an act of rape.

EXPLANATION 2: VOLUNTARY AND UNEQUIVOCAL CONSENT

 After the 2013 amendment, the court has specified how to interpret consent in
cases of rape. For consent to be an exonerating factor, it should be
‘unequivocal and voluntary’ for participating in the specific sexual act.
 Here, consent is to be read as positive affirmation to be proved by the accused
and not the erstwhile procedure where the burden of proof was on the woman
to show that she did not consent. Therefore, proof has to be furnished by the
accused to show that he took steps to ascertain whether the complainant was
consenting. Such consent may be given verbally or even through gestures and
other non-verbal modes for a particular sexual act only and such consent must
be voluntary in nature. Moreover, it prevents secondary victimization of the
victim which is caused due to the high standard of burden of proof on her to
prove the lack of consent beyond reasonable doubt.

MAHMOOD FAROOQUI V STATE (GOVT. OF NCT OF DELHI) Criminal

Appeal No.944/2016 (Delhi HC):
 This was recently decided on 25 September 2017, by the Delhi High Court.
In this case, the victim was a student of Columbia University and had
come to Delhi to do research for her PhD. A common friend introduced her
to the appellant. On the night in question, the appellant invited her for
dinner. When she reached, he was in an intoxicated state. The appellant
tried to kiss her to which she replied it was not what he needed. He also
disclosed his intention of sucking her to which she promptly denied. The
prosecutrix then stated that the appellant tried to pull down her
underwear and she kept pulling it up. Thereafter, she was immobilized by
the appellant who forced oral sex on her. After this incident, she left the
house in a taxi.
 The prosecutrix in her evidence, stated that she went along with the act,
as, seeing the strength of the appellant, she was afraid that something
would happen if she did not. She remembered the case of Nirbhaya where
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 the offender had declared that if she (Nirbhaya) had not protested, she
would have lived her life. Under this fear, the prosecutrix claimed that she
kept quiet and faked an orgasm in order to avoid any physical harm to her.
The appellant later sent her texts apologizing for his behaviour.
 The Sessions Court convicted Farooqui under the expanded definition of
rape (forced oral sex) under S.375 and received the minimum mandatory
punishment (7 years). The Sessions Court held that irrespective of his
apology and the type of sexual intercourse, the act was one of taking away
the victim’s control of her sexuality and therefore, it is an act of rape and
the accused is liable.
 However, on appeal, the Delhi High court overruled the ruling of the
Sessions Court by holding that a feeble ‘no’ to the sexual act may mean a
‘yes’ to the man and thus was not sufficient to negate consent and
therefore, the act did not amount to rape.
 This Delhi High Court judgement effectively nullifies the victim-centric
standard of consent as “unequivocal and voluntary agreement” which is
stated in the law by shifting this standard of consent from positive
affirmation to what the man understood as a negation of consent. The
court thus judicially formulated a new test of consent where the strength
of the ‘no’ as understood by the perpetrator plays a dominant role in
proving non-consent.
 In applying this new standard of consent, the court further held that this
standard was especially applicable in the present case where the parties
were acquaintances, were academic intellectuals and had physical contact
in the past which made it impossible to gauge whether a feeble ‘no’ in such
a case was an actual ‘no’ to the sexual act.
 Hence, by taking into account extraneous factors and stereotypes, the
court has created a new class for deciphering consent from the
perpetrator’s perspective which is not in conformity with the of focus on
the victim’s experience of rape as a violation of her sexual autonomy.
 Moreover, this judgement also raises some issues such as whether forced
oral sex is less grave than forced penile sex or not. This issue has to be
examined in the background of moral considerations that puts centrality
on loss of a woman’s honour (by loss of her chastity) in peno-vaginal rape.
 Furthermore, the judgement also puts forth the question whether the
degree of relationship between the accused and the victim should be taken
into considering while looking at consent, i.e whether rape by known
person is less grave than rape by a stranger?

EXCEPTION 2 – MARITAL RAPE:

 Although the definition of rape in Section 375 of the IPC appears to be
broadened by the 2013 Amendment, the Parliament failed to consider a
significant recommendation of the Verma Committee Report which was the
removal of the marital rape provision as an exception to the offence of rape.
 This exception reads as, “Sexual intercourse or sexual acts by a man with his
own wife, the wife not being under fifteen years of age, is not rape.” This leads

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 to a dangerous situation in which a man is legally allowed to rape his wife with
impunity if she is above the age of fifteen years.

INDEPENDENT THOUGHT V UNION OF INDIA WP(C) No. 382/2013:

 In this judgement decided by the Supreme Court on 11 October 2017,
the court has struck down the second part of the exception to Section375
of ‘fifteen years’ and raised it to ‘eighteen years’. The Supreme Court
accepted the argument of the petitioners that the exception carves out
an unnecessary distinction between married and unmarried girl child
between the age of 15 to 18 years and violates Article 14,15 and 21 of the
Constitution.
 Although this case prima facie appears as a first step to the enactment of
the law on marital rape, a closer examination of the judgement reveals
that it is not so. The fact that this judgement should not be approached
from the issue regarding complete removal of the exception of marital
rape is also expressly stated in the judgement.
 The judgement is decided solely in order to bring the age of the married
girl child to eighteen years so that it is in consonance with the specific
laws relating to child marriage and protection of children from sexual
offences (Juvenile Justice Act, The Prohibition of Child Marriage Act and
the Protection of Children from Sexual Offences Act) all of which mention
the age of eighteen years.
 In the best scenario, even if this judgement is considered as a stepping
stone to the removal of the marital rape exception by protecting girls in
the age bracket of 15 to 18 years, the fact remains that marital rape is
still not considered an offence in case the wife is above eighteen years of
age. Considering the high figures in India with respect to intimate partner
violence, this is highly dangerous as it provides immunity to perpetrators
of marital rape.

 DELHI DOMESTIC WORKING WOMEN FORUM V. UNION OF INDIA (1995)

1 SCC 14 (Broad parameters for assaulting rape victim by Supreme Court)
 Six women were travelling by Muri Express from Ranchi to Delhi. At
about 11pm when the train was near Khurja railway station, they were
sexually assaulted and raped by seven army personnel. The petitioner,
Delhi Domestic Women’s Forum filed a petition before the Supreme Court
highlighting the pathetic condition of the victims.
 The Supreme Court directed NCW to evolve a scheme of compensation
and rehabilitation of rape victims vide Section 10 of the National
Commission of Women Act, 1990 and the Union Govt. was directed to
implement the aforesaid scheme. The Court further elaborated broad
parameters for assisting victims of rape such as:
 Legal representation to complainants.
 Legal assistance at the police station while she is being questioned.
 Duty of the police to inform victim of her right to representation
and to duly mention this in the police report.
 List of advocates to be kept in the police station who are willing to
act in such cases.
 Advocate shall be appointed by the court upon application by the
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 police, but in the interim, they would be authorised to act at the
police station before leave of the court is obtained.
 In all rape trials, anonymity of the victim should be obtained, as
far as possible (Reflected in S.228A of IPC in today’s era).
 With regard to Article 38(1) of DPSP, the Criminal Injuries
Compensation Board should be set up since rape victims
frequently incur substantial financial loss and sometimes, are too
traumatised to continue in employment.
 Compensation for victims shall be awarded by the court on
conviction of the offender and by the Criminal Injuries
Compensation Board whether or not conviction has taken place or
not. A new compensation scheme has been brought by NALSA for
compensation of victims of sexual assault.

 BODHISATTVA GAUTAM V. SUBHRA CHAKRABORTY AIR 1996 SC 922

(Compensation during pendency of case)
 The complainant, Subhra Chakraborty, was a student of Baptist College,
Kohima and she filed a complaint in the court of the Judicial Magistrate,
Kohima against Bodhisattva Gautam who was a lecturer in the college.

 The complainant stated that the accused with malafide intention to

practise deception on the complainant, gave false assurance of marriage
to the complainant and dishonestly procured sexual intercourse with the
complainant. Subsequently, she got pregnant. The accused forced her to
abort the baby. Later, they also had a secret marriage where he applied
vermillion on her forehead. However, even after all this, the accused
abandoned her.

 SC held, “Rape is thus not only a crime against the person of a woman
(victim), it is a crime against the entire society. It destroys the entire
psychology of a woman and pushes her into deep emotional crises…It is
a crime against basic human rights and is also violative of the victim's
most cherished of the Fundamental Rights, namely, the Right to Life
contained in Article 21. To many feminists and psychiatrists, rape is less
a sexual offence than an act of aggression aimed at degrading and
humiliating women. The rape laws do not, unfortunately, take care of the
social aspect of the matter and are inept in many respects.”

 The court upheld the right of the victim for compensation by stating that
providing that it shall be awarded by the Court on conviction of the
offender and the Court trying an offence of rape has jurisdiction to award
the compensation both at interim and the final stage. In this case, the
Court asked the accused to pay a sum of Rs.1000 per month and arrears
from the date of complaint to the complainant as interim compensation
during pendency of the criminal case before the Magistrate.

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 SECTION 376-PUNISHMENT FOR RAPE
2018 amendment:
 Section 376(2) widens the ambit of rape by not only adding few forms/special
forms of non-consensual sexual intercourse. Earlier this section provided for
stern punishment to the perpetrator by enhancing the punishment for 7 to 10
years, in these special circumstances, however, after 2018 amendment, the
minimum imprisonment has been increased from seven years to ten years for
all rapes.

 After the 2018 amendment, there is an addition of Section 372(3) which lays
down enhanced punishment (min-20 years, max. life imprisonment) for rape
on a woman less than 16 years of age and payment of fine as compensation to
victim.

 Section 376C (Sexual intercourse by person in authority): A distinction

must also be made out between an offence of rape as contained in Section
375 of the Indian Penal Code which is punishable under Section 376 and an
offence of sexual intercourse with a woman in the situations specified in Section
376C.

 The distinction is that whereas under Section 376 (2), there is no consent at
all, under Section 376C, there would be consent on the part of the prosecutrix
but such consent has been obtained by taking undue advantage of the position
as public servant, Superintendent or Member of the Management. Sections
376A to 376D, stricto sensu therefore, do not deal with rape as is understood
in its ordinary parlance. However, consent of a girl by itself, will not take the
case out of the purview of Section 376(2). Other ingredients need to be satisfied
such as:
 The accused should be a public servant/position of authority/manager
of jail/hospital management
 He must take advantage of his official position
 He must seduce/induce the woman
 Such woman must be in his custody/charge/present in the premises
 Such sexual intercourse must not amount to rape.[OMKAR PRASAD
VARMA v STATE OF MADHYA PRADESH AIR 2007 SC 1381]

 Section 376D (Gang rape): Where a woman is raped by one or more in a group
of persons, each must have been deemed to have committed gang rape, when
it is committed by one or more from the group, in furtherance of common
intention. Offence of gang rape embodies the principle of joint liability and the
existence of common intention (prior concert/meeting of minds).Once this is
proved, every one of the group is deemed to have committed rape.

 Insertion of Section 376DA (gangrape <16 years) – imprisonment for life.

Insertion of Section 376DB (gangrape <12 years) – imprisonment for life and
maximum punishment is death penalty. These two have been added by the
recent 2018 Amendment.

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  Section 376E: provides for severe punishment for repeat offenders has been
inserted by the 2013 amendment act.

OFFENCE IPC, 1860 2018 AMENDMENT

Rape  Minimum-10 years  Minimum- 20 years

(Below 12 years)
S. 376AB  Maximum-life  Maximum – life
imprisonment imprisonment or death

Gang rape
(Below 12 years)  Minimum-20 years  Minimum-life
S.376DB imprisonment
 Maximum-life
imprisonment  Maximum-life
imprisonment or death

Rape
(Below 16 years)  Minimum-10 years  Minimum-20 years
S.376(3)
 Maximum-life  Maximum- life
imprisonment imprisonment(no change)

Gang rape
(Below 16 years)  Minimum-20 years  Minimum-life
S.376DB imprisonment
 Maximum-life
imprisonment  Maximum –life
imprisonment(no change)

Rape
(>=16 years)  Minimum-7 years  Minimum-10 years
S.376(1)
 Maximum-life  Maximum- life
imprisonment imprisonment(no change)

Gang Rape
(>=16 years)  Minimum-20 years NO CHANGE.
S.376D
 Maximum-life
imprisonment

 The 2018 amendment Act amends the IPC, 1860 to increase the minimum
punishment for rape of women from seven years to ten years (Section 376(1)).

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  Rape and gang rape of girls below the age of 12 years will carry minimum
imprisonment of twenty years and is extendable to life imprisonment or death.

 Rape of girls below the age of 16 years is punishable with imprisonment of

twenty years or life imprisonment.

SECTION 377 – UNNATURAL OFFENCES

 Section 377 criminalizes “carnal intercourse against the order of nature” which
– among other things – has been interpreted to include oral and anal sex
irrespective of whether the intercourse was consensual.

 In the significant case of Khanu v Emperor AIR 1925 Sind 286 (Sindh High
Court), Section 377 is defined in terms of what is not “natural” sexual
intercourse, which involves the “possibility of conception of human beings”
(essentially, penile–vaginal intercourse).

 This bifurcation of sexual acts was cemented by the Supreme Court in Sakshi
v. Union of India [AIR 2004 SC 35660], where ‘sexual intercourse’ was
restricted to penile-vaginal penetration, while all residual forms of intercourse
(including “penile-oral penetration, penile-anal penetration, finger-vagina,
finger-anal penetration and object-vaginal penetration”) were considered carnal
intercourse against the order of nature.

 However, the 2013 Criminal Law (Amendment) Act put an end to the watertight
separation between these provisions. Section 375 was altered to include acts
that earlier fell only within the domain of Section 377, including oral sex, anal
sex and penetration by objects. Coupled with these changes, the provision
ceased to describe the actus reus of rape as ‘sexual intercourse’.

NAZ FOUNDATION v GOVT. OF NCT OF DELHI (Delhi HC – 2.7.2009) (2010)

CrLJ 94 (WP (C) 7455 OF 2001):
Respondent Naz Foundation is an NGO working in the field of HIV/AIDS, and they
had filed the petition in the Delhi High Court challenging the constitutionality of
S.377 on the basis that it unfairly creates a discriminatory attitude towards sexual
minorities, acts as a weapon for police abuse, and violates their individual right of
privacy and dignity.

The Delhi HC judgement: The HC held S.377 is violative of 14,15 and 21. Where
society can display inclusiveness and understanding, such persons (sexual
minorities) should be assured of a life of dignity, privacy and non-discrimination
which is taken away by S.377.Also, the court read ‘sex’ as analogous to ‘sexual
orientation’ and held that it was discrimination u/A.15. Allthough, it held S.377
unconstitutional to the effect where it criminalizes consensual sexual acts of adults
in private, the Section would still be applicable for non-consensual penile-non
vaginal sex and penile-non vaginal sex involving minors.

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 SURESH KOUSHAL v NAZ FOUNDATION (Two judge bench Supreme Court on
11.12.2013) AIR 2O14 SC 563:
 While setting aside the judgement of the Delhi High Court judgement,the court
held that S.377 is constitutionally valid as it does not criminalize a particular
people or identity or orientation and only identifies certain acts which, when
committed, would constitute an offence . Such a prohibition, regulates sexual
conduct regardless of gender identity and orientation and thus, there is no
discrimination.

 The Court further observed that while reading down Section 377 of the Indian
Penal Code, it cannot be overlooked that only a minuscule fraction of the
population constitutes LGBTIQs and in last more than 150 years, less than 200
persons have been prosecuted under Section 377 which cannot, therefore, be
made a sound basis for declaring Section 377 IPC unconstitutional.

 The submission advanced by the respondents therein to the effect that the
provision had become a pernicious tool for perpetrating harassment, blackmail
and torture on those belonging to the LGBT community was repelled by stating
that such treatment is neither mandated by the Section nor condoned by it and
the mere fact that the Section is misused by police authorities and others is not
a reflection of the vires of the Section, though it might be a relevant factor for
the Legislature to consider while judging the desirability of amending Section
377 of the Indian Penal Code

 This judgement was seen as a setback for LGBTIQ rights and consensual sexual
intercourse between adults of the same sex.

NAVTEJ JOHAR v UOI WP (Crl) 76/2016 (Supreme Court – DOJ 06.09.2018):

 In Navtej Johar v Union of India, the petition was filed by Navtej Singh Johar,
Sunil Mehra, Ritu Dalmia, Aman Nath and Ayesha Kapur, individuals who
identify as LGBT persons, for declaring the right to sexuality, the right to sexual
autonomy and right to choice of a sexual partner to be part of the right to life
guaranteed under Article 21 of the Constitution of India and further to declare
Section 377 of the Indian Penal Code to be unconstitutional.

 A Constitution Bench of the Court formally overruled Koushal, effectively

restored the Delhi High Court judgment in Naz Foundation.They
unambiguously held that the LGTBQ community was entitled to equal rights
as others and that Section 377 violated Article 14 (equal protection of laws),
15(1) (non-discrimination on grounds of sex), 19(1)(a) (freedom of expression)
and 21 (right to life and personal liberty) – the judges came at the issues from
different angles.

WHY SURESH KOUSHAL CASE NEEDED TO BE RE-CONSIDERED:

 Suresh Koushal relied on social morality and majoritarian concerns instead of
focussing on constitutional morality.
 Koushal did not take into account emphasis on gender identity and sexual
orientation as held by SC in NALSA case.

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  Koushal also did not follow Putaswammy v UOI (2017) 10 SCC 1 where court
had held that sexual orientation is an essential right under the Constitution.
 Koushal is contrary to impact/effect test which ultimately leads to
discrimination.
 Just because a class of persons belong to a miniscule percentage of population
is not a factor to be relied upon while deciding constitutionality of a provision
based on majority/popular view which was done in case of Koushal.
 Based on these reasons, 3 judge bench, referred the matter to Constitution
Bench as they felt Koushal requires reconsideration especially in relation
whether S.377 is applicable in case of consensual sex between adults in private.

SUBMISSIONS BY PETITIONER:
 Article 21 violation:
 Homosexuality, bisexuality and other sexual orientations are natural and
reflective of choice not a physical/mental illness.
 “order of nature” relates to procreative aspect that does not take into
account developed individual choice and free exercise of one’s bodily and
sexual autonomy and offends privacy.
 Right to choose a partner of one‘s choice is an inherent aspect of the right
to life.
 Sexual minorities need to be protected as sexual orientation is an integral
aspect of individual identity.
 Impact of sexual orientation in an individual’s life is not just restricted to
the intimate life of individual but also affects their family, social,
educational and professional life.
 Right to reputation important for right to enjoyment of life and liberty
under Art. 21 is tainted by criminality by virtue of S.377.
 Article 14 violation
 LGBTs are discriminated against by virtue of S.377 which puts them in
a constant state of fear, victimised and alienated –Violation of Art.14.
They need to be treated equally.
 S.377 is vague as ‘carnal intercourse against order of nature not defined
in IPC or any other law’ –no intelligible differentia or reasonable
classification for natural and unnatural sexual intercourse – arbitrary
and overbroad – violative of Art.14.
 Article 15 violation
 In Article 15, ‘sex’ includes ‘sexual orientation’ and there is express
discrimination because of S.377.
 Article 19 violation
 S.377 has a chilling effect on freedom to express one’s sexual identity,
expression of sexual desire romantic/sexual partner (under A.19(1)(a))
and S.377 is an unreasonable restriction not covered under A.19(2).
 Violates A.19(1)(c) and prevents them to form associations due to fear of
state action and social stigma.

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SUBMISSIONS BY RESPONDENT AND INTERVENORS:
 Union Govt. said as far as the applicability of S.377 to acts of consensual
intercourse between adults in concerned, they leave it to the wisdom of the
court.
 NGO-Trust God Ministries-
 Such acts under S.377 are undignified, derogatory and do not merit right
to privacy – abuse of organs.
 Sexual minorities already provided rights under NALSA judgement.
 Such conduct is immoral and lascivious not to be allowed in a civilized
society.
 Makes them susceptible to diseases like AIDS
 Family system, institution of marriage will be at stake which is the
bulwark of our culture.
 Suresh Koushal –
 Decriminalizing S.377 will run foul to all religions as in a multicultural
country like India which is different from other countries where such
kind of a provision is decriminalized –violation of Art. 25.
 Other intervenors-
 Would lead to misuse.
 Women married to homosexuals will be remedyless.
 If S.377 is vague, courts can define it properly instead of totally declaring
it unconstitutional.
 Not manifestly arbitrary as it criminalizes ‘acts’ irrespective of gender or
sexual orientation of a person-universal application.
 Art.15 not violated. ‘Sex’ cannot be read as ‘sexual orientation’. Needs to
be expressly mentioned which requires constitutional amendment.
 Striking down S.377 would lead to judicial legislation. Court cannot
create artificial distinction of consent/non-consent within the Section.

JUDGEMENT (NAVTEJ JOHAR CONSTITUTION BENCH):

1. Understanding carnal intercourse against the order of nature:
 ‘Sexual intercourse’ after the 2013 amendment now includes many acts
which were covered under Section 375, thus those acts are clearly not
‘against the order of nature’ anymore. They are, in fact, part of the
changed meaning of sexual intercourse itself.
 This means that much of Section 377 has not been rendered redundant.
Hence, consensual heterosexual contact does not attract liability due to
expanded definition but homosexual contact still attracts criminal
liability under S.377.
 What is ‘natural’ and what is ‘unnatural’? And who decides the
categorization into these two ostensibly distinct and water-tight
compartments?
 Carnal intercourse against the order of nature” in Section 377 as a
determining principle in a penal provision, is too open-ended” and
arbitrary.

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2. The Primacy of Choice (Chief Justice and Khanwilkar J.)
 The concept of choice (or individual self-determination) is as important
to the exercise of constitutional rights as the “naturalness of sexual
orientation”.
 Identity according to one’s sexual orientation cannot be pigeon-holed into
whether it was from birth or gradually developed. What should be given
primacy is the individual choice of sexual orientation.(para 9)
 He rejects the argument in Koushal case that S.377 only criminalizes
‘acts’ and not ‘persons’ and thus, does not violate constitutional
guarantees. He holds that the acceptance of identity of an individual
brushes aside the act and respects the dignity and choice of the
individual.(para 81)
 Thus, he also frames dignity in the language of choice.When a person’s
biological expression to choose is prevented, it creates a dent to the
individual’s natural and constitutional right to dignity.(para 132)
 Hence. S.377 is “manifestly arbitrary”, and violates Article 14 (para 240)
and is a violation of expressive rights under Article 19(1)(a), and the right
to privacy under Article 21.

3. Arbitrariness as per Mental Healthcare Act, 2017 (Nariman J.)

 Justice Nariman also holds that Section 377 violates dignity (para 79),
and that it is “manifestly arbitrary” (para 82). Nariman J. arrives at the
second conclusion from a slightly different route.
 He relies on the opinion of the Indian Psychiatric Society who have stated
that homosexuality is not a psychiatric disorder and if alteration of
sexual orientation is forcefully attempted, it may lead to low self-esteem.
 He examines the Mental Healthcare Act, 2017 which expressly prohibits
discrimination on grounds of sexual orientation (in the domain of mental
health). He states that given the definition in the Act, social morality
cannot be considered. Homosexuality is not a disease and hence,
homosexuals are at par with heterosexuals and there should not be any
distinction between the two.
 Combining this with scientific evidence, he notes that the
natural/unnatural distinction that is at the heart of Section 377 has no
rational basis, and consequently, violates Article 14 (para 82).

4. Indirect Discrimination (Chandrachud J.):

 Chandrachud J. states Article 15(1) - “The State shall not discriminate
on grounds … only of sex” is interpreted in a highly formalistic manner,
for example, in Suresh Koushal, the Court held that because Section 377
only criminalised “carnal intercourse against the order of nature”, there
was no question of discriminating against identities). This, however, is
flawed: what matters is the effect of law upon the exercise of fundamental
rights.”(para 34)
 Prohibition of discrimination on the grounds only of sex under Article
15(1) is to be assessed not by the objects of the state in enacting it, but
by the effect that the provision has on affected individuals and on their
fundamental rights. Section 377 may be neutrally worded, but its effect

16
 is disproportionately upon the LGBT community. It is therefore indirectly
discriminatory on grounds of sexual orientation.
 Article 15(1) prohibits sex discrimination. Discrimination on grounds of
sex is premised upon stereotypes about appropriate gender roles, and the
binary between “man” and “woman”. It is these stereotypes about gender
roles that constitute the bases of criminalising same sex relations.
 Since the basis of that indirect discrimination lies in stereotypes about
gender roles (the background social context), S. 377 violates Article 15(1)
of the Constitution.
 Article 21 also protects a right to intimacy (para 7), and Section 377 also
inhibits the right to health (including the right to mental health) and
sexual privacy.

5. Truer version of equality (Malhotra J.):

 “S. 377 creates an artificial dichotomy. The natural or innate sexual
orientation of a person cannot be a ground for discrimination. Where a
legislation discriminates on the basis of an intrinsic and core trait of an
individual, it cannot form a reasonable classification based on an
intelligible differentia.” (para 13)
 What is legitimate state purpose - whatever the differentia, and whatever
the nexus, the State is not permitted, under Article 14, to disadvantage
groups on the basis of an “intrinsic or core” trait.

6. The road ahead:

 Transformative constitutionalism –Not just protection of individual
dignity and liberty by decriminalization of S.377 but also ensuring equal
opportunity to develop and advance human potential such as civil rights,
a guarantee against horizontal discrimination in the domains of housing,
education, and access to services (under Article 15(2)), a potential right
to affirmative action (on the lines of the NALSA v Union of India), and of
course – eventually – equal marriage, if demanded.

SEXUAL HARASSMENT OF WOMEN AT WORKPLACE

Vishaka v State of Rajasthan (1997) 6 SCC 241 (3 judge bench) Date of
Judgement -13.8.1997:
 The filing of this case was in response to a brutal gang-rape of a social worker
in Rajasthan. In 1992, a rural level social worker, Bhanwari Devi, was engaged
by the State of Rajasthan as a Saathin to work towards the prevention of the
practice of child marriage. During the course of her marriage, she prevented
the marriage of a one year old girl in the community. Her work was resented
and attracted harassment from the men in her community and subsequently
she was gang raped by those very men. The case exposed the following:
 Hazards that working women face and the depravity of sexual
harassment.
 Urgency for safeguards for working women by an alternative mechanism
in the absence of legislative measures.

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 The petition by way of public interest litigation for the enforcement of rights of
working women under Articles 14, 15, 19 and 21 and in finding suitable
methods for realization of the true concept of ‘gender equality’.

 Gender equality includes protection from sexual harassment and right to work
with dignity, which is universally recognized as a basic human right.
International conventions and norms are of great importance in the formulation
of guidelines to achieve this purpose.

 However there was a legislative vacuum regarding this subject in the domestic
law. By virtue of Art.51(c) and Art.253 r/w Entry 14 of List-1 of 7th Schedule,
Parliament can enact domestic law in line with international conventions.
CEDAW (Art.11 and 24), its general recommendations (Art 11,22,23,24) help
construe the nature and ambit of constitutional guarantee of gender equality
in our Constitution. In absence of Parliament made law, court laid down
guidelines for strict observance in all workplaces and directed that this is part
of the court’s power under Art.32 and shall be treated as law declared by
Supreme Court as per Art.141 of the Constitution.

 Hence, the court has laid down the following guidelines popularly known
as VISHAKA GUIDELINES:
1. Duty of the Employer or other responsible persons in work places and other
institutions:
It shall be the duty of the employer or other responsible persons in work places
or other institutions to prevent or deter the commission of acts of sexual
harassment and to provide the procedures for the resolution, settlement or
prosecution of acts of sexual harassment by taking all steps required.

2. Definition:
For this purpose, sexual harassment includes such unwelcome sexually
determined behaviour (whether directly or by implication) as:
a) physical contact and advances;
b) a demand or request for sexual favours;
c) sexually coloured remarks;
d) showing pornography;
e) any other unwelcome physical, verbal or non-verbal conduct of sexual
nature.
Where any of these acts is committed in circumstances whereunder the
victim of such conduct has a reasonable apprehension that in relation to the
victim's employment or work whether she is drawing salary, or honorarium or
voluntary, whether in Government, public or private enterprise such conduct
can be humiliating and may constitute a health and safety problem. It is
discriminatory for instance when the woman has reasonable grounds to believe
that her objection would disadvantage her in connection with her employment
or work including recruiting or promotion or when it creates a hostile work
environment. Adverse consequences might be visited if the victim does not
consent to the conduct in question or raises any objection thereto.

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3. Preventive Steps:
All employers or persons in charge of work place whether in the public or
private sector should take appropriate steps to prevent sexual harassment.
Without prejudice to the generality of this obligation they should take the
following steps:
(a) Express prohibition of sexual harassment as defined above at the work
place should be notified, published and circulated in appropriate ways.
(b) The Rules/Regulations of Government and Public Sector bodies
relating to conduct and discipline should include rules/regulations
prohibiting sexual harassment and provide for appropriate penalties in
such rules against the offender.
(c) As regards private employers steps should be taken to include the
aforesaid prohibitions in the standing orders under the Industrial
Employment (Standing Orders) Act, 1946.
(d) Appropriate work conditions should be provided in respect of work,
leisure, health and hygiene to further ensure that there is no hostile
environment towards women at work places and no employee woman
should have reasonable grounds to believe that she is disadvantaged in
connection with her employment.

4. Criminal Proceedings:
Where such conduct amounts to a specific offence under the Indian Penal
Code or under any other law, the employer shall initiate appropriate action in
accordance with law by making a complaint with the appropriate authority.
In particular, it should ensure that victims, or witnesses are not
victimized or discriminated against while dealing with complaints of sexual
harassment. The victims of sexual harassment should have the option to seek
transfer of the perpetrator or their own transfer.

5. Disciplinary Action:
Where such conduct amounts to misconduct in employment as defined by the
relevant service rules, appropriate disciplinary action should be initiated by the
employer in accordance with those rules.

6. Complaint Mechanism:
Whether or not such conduct constitutes an offence under law or a breach of
the service rules, an appropriate complaint mechanism should be created in
the employer's organization for redress of the complaint made by the victim.
Such complaint mechanism should ensure time bound treatment of
complaints.

7. Complaints Committee:
The complaint mechanism, referred to in (6) above, should be adequate
to provide, where necessary, a Complaints Committee, a special counselor or
other support service, including the maintenance of confidentiality.
The Complaints Committee should be headed by a woman and not less
than half of its member should be women. Further, to prevent the possibility of

19
 any undue pressure or influence from senior levels, such Complaints
Committee should involve a third party, either NGO or other body who is
familiar with the issue of sexual harassment.
The Complaints Committee must make an annual report to the
Government department concerned of the complaints and action taken by
them. The employers and person in charge will also report on the compliance
with the aforesaid guidelines including on the reports of the Complaints
Committee to the Government department.

8. Workers' Initiative:
Employees should be allowed to raise issues of sexual harassment at workers'
meeting and in other appropriate forum and it should be affirmatively
discussed in Employer-Employee Meetings.

9. Awareness:
Awareness of the rights of female employees in this regard should be created in
particular by prominently notifying the guidelines (and appropriate legislation
when enacted on the subject) in a suitable manner.

10. Third Party Harassment:

Where sexual harassment occurs as a result of an act or omission by any third
party or outsider, the employer and person in charge will take all steps
necessary and reasonable to assist the affected person in terms of support and
preventive action.

11. The Central/State Governments are requested to consider adopting suitable

measures including legislation to ensure that the guidelines laid down by this
order are also observed by the employers in Private Sector.

12. These guidelines will not prejudice any rights available under the
Protection of Human Rights Act, 1993.

Accordingly, the above guidelines and norms would be strictly observed

in all work places for the preservation and enforcement of the right to gender
equality of the working women. These directions would be binding and
enforceable in law until suitable legislation is enacted to occupy the field.

MEDHA KOTWAL LELE v UNION OF INDIA (2012) 9 SCR 895

 This case was taken up by the court to monitor the implementation of the
Vishaka guidelines before the 2013 Act came into place.
 The court directed that there should be a State-Level officer, i.e either Secretary
of WCD or any other suitable officer for implementing the Vishaka directions.
Chief Secretaries of each State shall see that an officer is appointed as a nodal
agent to collect details and give suitable directions. Labour Commissioner of
each State shall take steps that Vishaka Directions are fully complied with in
factories, shops and commercial establishments. They shall also collect details

20
 and ensure that required Complaints Committee is established in such
institutions.

THE SEXUAL HARASSMENT OF WOMEN AT WORKPLACE (PREVENTION,

PROHIBITION AND REDRESSAL) ACT, 2013
 This act alongwith its rules was enforced on 09.12.2013 as India’s first
legislation regarding workplace sexual harassment. The act aims to prevent and
protect women from sexual harassment at workplace and for effective redressal
of such complaints.

 Section 2(n) –‘Sexual harassment’- Indian Penal Code, 1860 (IPC) has also
been amended to include a specific offence of ‘sexual harassment’, although
this is not defined or restricted to the ‘workplace’.

 Section 2(f) -‘employee’– Right of all women working or visiting a workplace

whether in the capacity of regular, temporary, ad-hoc or daily wage basis, are
protected under the Act. So, they could be a co-worker, contract worker,
probationer, trainee, etc. This act also covers a woman, who is working in a
dwelling place/house.

 Section 2(o) – ‘Workplace’ – Covers both organized and unorganized sectors.

Includes all workplaces having place of work in India. It includes government
organizations as well as private organizations.

 Section 3(1) -No woman shall be subjected to sexual harassment at any

workplace’. Section 3(2) further defines circumstances, which, if they occur in
relation to an act or behaviour of sexual harassment amount to sexual
harassment.

 Complaints mechanism- The Act sets up two categories of mechanisms,

thereby ensuring that all working women, of whatever category and
classification in extant employment law, are provided with a remedy in law if
subjected to sexual harassment at their workplace. These Complaints
Committees not only enquire into complaints of sexual harassment at the
workplace, but also generate awareness and take preventive steps in order to
ensure that the work environment is conducive to the participation of women
employees

 Internal Complaints Committee (Section 4):

The phrase ‘person familiar with the issues relating to sexual harassment’ has
been explained in the 2013 Rules (Rule 4) with the following deeming
provisions:
a social worker with at least five years experience in the field of social work in
the area of empowerment of women, and in particular sexual harassment at
the workplace; or a person familiar with labour, service, civil or criminal law.

21
 Local Complaints Committee (Section 6):
The 2013 Act further provides for the establishment of ‘Local Complaints
Committees’ (LCC) at the district level to address complaints of sexual
harassment at the workplace. The LCC aims to provide protection to women in
the unorganised sector or those working in small initiatives (with less than 10
employees) and to domestic workers who are subjected to sexual harassment
at the workplace. For every district in the country, the Collector or other senior
officer of the district administration is appointed as District Officer.

 Complaint of sexual harassment (Section 9)

 Limitations – proviso to S.9:

 This is an unfortunate provision, since it places a restriction on the right
of women to raise a complaint regarding sexual harassment at the
workplace, even while such restriction has not been mentioned in
Vishaka.
 In cases of sexual violence and harassment, women may be so thoroughly
traumatised as to render filing of the complaint impossible until such
time they have recouped their strength.
 Sexual harassment at the workplace is a manifestation more of abuse of
power than anything else, a fact which has been recognised in the
Vishaka guidelines. Workplace entails a relationship of domination
between the perpetrator and the victim, as a result of which the victim is
often unable to protest, apprehending adverse consequences upon her
conditions of employment, career advancement and even her job itself.
 Interestingly, the amended section 354-A of the Indian Penal Code (IPC),
defining the offence of ‘sexual harassment’, would be subject to a
limitation of one to three years(S.468 CrPC) with power to the court to
extend the same in the interests of justice. (S.473 CrPC) Similar
provisions apply to offences under section 354 (use of criminal force or
assault to outrage the modesty of a woman).

 Who can file complaint (S.9 r/w R.6): Act makes an exception to the general
rule of locus standi. It also enables filing of complaints by the NCW and SCWs
which is a welcome step where victims don’t step forward due to
economic/social differences.

 Punishment (Rule-9): The nature of punishment has been listed in the 2013
Rules are written apology, a warning, reprimand or censure, withholding of
promotion, withholding of pay rise or increments, termination from service,
counselling; and community service. The ICC/LCC may, in addition, also
recommend to the employer/District Officer that monetary compensation be
paid by the respondent to the complainant, which may be deducted from his
salary or wages[S.13(3)].

 A clear distinction has been drawn between the findings of the ICC/LCC, and
the decision and pursuant action taken by the employer or District Officer. The
disciplinary committee findings are recommendatory in nature, and it is the
22
 employer or appointing authority which has the power to accept or reject such
recommendations. Thus, where the ICC/LCC arrives at a conclusion that no
misconduct in the nature of sexual harassment at the workplace is proved, the
employer or District Officer takes a decision on whether it accepts such finding
or not.

 Interim orders (S.12 r/w R.7)

 Payment of compensation to victim (S.15): Determination and awarding of

compensation for a legal harm, on the other hand, is in its essence a judicial
function. Beyond the bare statements under section 15, no further guidance is
provided as to how the ICC/LCC is to arrive at the compensation, and what are
the methods of computation to be used. This is a serious lacuna in the law.

 Conciliation (S.10): Far too often, such provisions in laws purporting to

protect the rights of women are used to pressurise women to ‘settle’ the matter.
This completely disregards the power imbalances that are often present in
sexual harassment cases. To include a discretionary power of the ICC to require
the aggrieved woman to conciliate an outcome with her alleged harasser is to
invite an easily abused and potentially humiliating and degrading practice that
fails to protect women from sexual harassment. Such a provision will
discourage women from making complaints, and it is precisely for this reason
that such a provision is not replicated in other countries.

 Confidentiality (S.16): Violation of this provision invites penalty in accordance

with the applicable service rules, or in the manner prescribed. Unfortunately,
the 2013 Rules while prescribing the penalty for the violation of this provision,
make a mockery of the law by fixing the amount at 5000 Indian Rupees.

 False and malicious complaints (S.14): The Verma Committee report calls
this a ‘red-tag’ provision which is completely abusive and ‘intended to nullify
the objective of the law’.6 Any provision that has the effect of putting fear and
reluctance into the heart of a woman who wants to bring a complaint against
her harasser but decides against it for fear of retribution and character
assassination is an unethical and unfair provision. This provision is also
without merit for its complete lack of understanding of the very nature of sexual
harassment in the workplace. Sexual harassment, whether quid pro quo or in
the creation of a hostile work environment, is a form of violence which is often
perpetrated in circumstances of power imbalance and aimed at particularly
vulnerable women in private, through targeted acts that are intentionally and
deliberately made to intimidate and humiliate them. The provision also is quite
contrary to the avowed objective of the statute to protect the fundamental rights
of women to equality, dignity and access to employment.
 If at all, a provision for punishment for false or malicious allegations by a
complainant should remain a legal obligation in the hands of a more skilled
and appropriate judicial forum such as a court of law, as opposed to a non-
judicial body such as an ICC or an LCC.

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