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‘Allegation raj’ that burns at stake
Principle of law? Ha-ha

Come writers and critics, who prophesize with your pen
Keep your eyes wide, the chance won’t come again
Don’t speak too soon, for the wheel’s still in spin
And there’s no tellin’ who that it’s namin’
For the loser now, will be later to win
For the times they are a-changin’

Bob Dylan’s famed lyrics about America in the 1960s have erupted with prophetic significance on the India of 2013 as raped and sexually harassed women break the shackles of silence and make their tormentors face the law.

But while a writer is locked up in Goa on charges of rape and a former Supreme Court judge faces allegations of sexual misbehaviour, the changing times have also fuelled other concerns.

The laws that were changed after the December 16 brutality in Delhi and the backlash that dramatically transformed public discourse may have pushed the country into a tightrope walk between surer justice for the sufferers and a lynchmob presumption that the accused are guilty, lawyers, activists, HR professionals and police officers have cautioned.

The gist of their views suggests that the cornerstone of law — every suspect is presumed innocent until proven guilty — must be kept in mind always while commenting on such sensitive cases. Besides, police investigation must be allowed to proceed in an environment free of shrill rhetoric on which an “allegation raj” feeds and fattens itself.

“You need laws, and those who oppose pro-women laws are making frivolous arguments,” National Commission for Women member Charu WaliKhanna said. “But yes, there are problems with the way the government has gone about ensuring the safety of women at the workplace. You cannot assume all men are rapists.”

Law changes

At the heart of the debate are changes in India’s sexual harassment and rape laws, amended earlier this year after the December 16 gang rape and murder.

Tarun Tejpal, the Tehelka founder accused of raping a junior during a Goa literary conclave in November, would have been booked for the much weaker charge of sexual harassment under the earlier laws.

Tejpal would have faced the prospect of a maximum of two years in jail and a fine under the earlier laws that described any sexual crime short of rape with the Macaulay-era wording “outraging the modesty of women” and prescribed a uniform punishment.

Under the new law, if convicted, he now faces anything between seven years and life in jail.

The new laws will not apply to the charges against Justice Asok Kumar Ganguly because the alleged “unwelcome behaviour of a sexual nature” in December 2012 preceded the legal amendments carried out on February 3, 2013.

Going by the information made public so far, Ganguly, unlike Tejpal, would not have faced the charge of rape even under the new laws. But the punishment for the charges the former judge could face would have been different had the new laws applied, ranging from a year to seven years in prison.

Subjective terms

Added to this mix of criminal laws is the Sexual Harassment of Women at the Workplace Act that makes it mandatory for offices to set up a grievance redress mechanism to internally evaluate allegations of misconduct followed by a criminal complaint if the charges are found to be sound.

The cocktail of laws, however, is silent on the specifics of what can be viewed as humiliation, interference with work, creating an environment of intimidation and implied and explicit threats — the factors that define sexual harassment at the workplace.

It is equally unclear what constitutes “making sexually coloured remarks” or “unwelcome verbal conduct of a sexual nature” that the new criminal amendment law punishes with a year in jail.

But the rape laws describe in detail what constitutes the offence (see chart). The definition of rape has been widened to such an extent that finding evidence to prove some charges would be difficult. In effect, although many feel that the law has been tightened, the task of prosecution may become all the more difficult to establish a charge in court in the absence of material evidence.

The law has yet to be tested in court conclusively but if cases under the new definition of rape are not eventually proved, future complainants may turn reluctant in approaching the police.

Witch-hunt frenzy

However, such questions have been blown away by the blizzard of opinions from those with little respect for the nuances of law that usually follow a complaint.

Senior lawyer K.T.S. Tulsi, who appeared on behalf of Tejpal at Delhi High Court, felt that a witch-hunt of those charged with sexual crimes was leading to premature presumption of guilt by society at large.

“The moment an allegation of sexual crime is made, people presume it to be true and start clamouring for the prosecution of the accused,” Tulsi said. “This is nothing but travesty of justice. Such is the frenzy that people believe in prosecution without following the procedure of law.”

Safeguards

The law does carry safeguards against misuse that in the absence of a public witch-hunt can ensure a fair trial, lawyers said.

Even before the new rape and sexual harassment laws came into being, the victim did not need to personally complain for the police to file an FIR — they could do so themselves. But the police need prima facie evidence to arrest the accused and to seek custody.

The new laws continue to allow the accused to challenge the complainant’s account in court, or during the police probe, senior lawyer Kamini Jaiswal said. “He can challenge the version given by the victim with facts,” she said.

The law continues to retain provisions that allow the accused, if acquitted, to seek damages in court from the complainant and the police for the time he spent in jail or the hurt to his reputation, although there is no provision for safeguarding the identity of the accused as in the case of the accuser.

“He can file a case of malicious prosecution against the complainant and the prosecuting agency and claim damages,” Jaiswal said.

But others have pointed out that such cases take time to conclude and reputations once destroyed are difficult to be restored with a stroke of a pen.

Accuser’s proof

Although the law does not bar complaints made even years after the alleged incident, it does put in place mechanisms to guard against false allegations.

The accuser has to provide details of the incident — the date, the time, place where she was harassed and any witnesses who may have come across the victim in a perturbed state soon after the incident — to substantiate her complaint, Jaiswal said.

The accused can challenge her version by producing alibi to suggest he was elsewhere at the time of the alleged crime.

But if both were present at the same place at the time mentioned — as in the cases of Tejpal as well as Ganguly — their personal accounts and that of witnesses will play a crucial role. Besides, the onus of proving the charges still lies on the prosecution.

The complainant’s version against Tejpal has been backed by three colleagues whom the young journalist had met immediately after the alleged assault. The intern had filed affidavits of three witnesses during her deposition against Ganguly.

A five-judge Constitution bench of the Supreme Court earlier this year also held that if the complaint is filed late, the investigating officer should conduct a preliminary enquiry and be satisfied with its outcome before registering an FIR.

One-sided focus

A part of the problem lies with India’s approach to tackling sexual crimes, said WaliKhanna of the NCW.

“The focus of the entire approach is on prosecuting the guilty, but alongside that, you also need to focus on prevention, and that’s not happening,” WaliKhanna said, adding that she had written to the ministry of women and child development criticising the drafted rules that define the architecture for the implementation of the law against sexual harassment at the workplace.

Workplace lacuna

“There’s no emphasis on mandating that companies train employees on what is acceptable and what is not acceptable,” WaliKhanna added.

On their own at present, few companies know how to handle sexual harassment complaints, and even fewer Indian companies train employees on what behaviour is acceptable in office, said Udit Mittal, managing director of Gurgaon-based Human Resources consultancy Unison International.

“They’re still used to an environment where there’s this unstated understanding that most women will take a bit of harassment because the alternative could hurt their careers,” Mittal said. “But that’s changing, and more and more companies will need to invest in training both their HR departments and other employees.”

But Mittal said he did not anticipate employers shunning women job applicants out of fear that hiring them may expose them to sexual harassment cases.

Most industries, Mittal said, are networked enough to be aware of any “troublemakers” who — male or female — regularly create problems for their employers.

“Once you get that tag, it becomes hard to find a job and companies know that,” Mittal said. “They know that frivolous complainants have a lot to lose too, besides which, quite simply, most companies need women in their workforce as much as they need men.”

“I see any problems — for companies, men or for women applicants seeking jobs — as short-lived,” Mittal said. “India has changed and there’s no going back.”

WHAT HAS CHANGED

Sexual harassment

OLD LAW

Section 354, the Indian Penal Code

Definition

• Reference limited to “assault or criminal force on a woman with the intent to outrage her modesty”
• Stalking, verbal abuse with sexual innuendoes, molestation and penile penetration of a woman’s body other than vagina were covered under this law as equivalent crimes

Punishment

Up to two years in jail or/and fine

New LAW

Amended Section 354

Category I

Seeks to explain what constitutes sexual harassment and defines differential punishment

• Physical contact and advances involving explicit sexual overtures
• Demand or request for sexual favours
• Sexually coloured remarks l Forcibly showing pornography
• Any other unwelcome physical, verbal or non-verbal conduct of sexual nature

Punishment

Up to one year in jail and/or fine

Category II

• Act with intent to disrobe a woman
• Watching or capturing a woman in a private act (bathing, naked, semi-naked or in a
sexual act); capturing includes recording

Punishment

Between 3 and 7 years in jail and fine

Category III

• Stalking

Punishment

Between 1 and 3 years and/or fine

RAPE

• Section 375, the Indian Penal Code, deals with rape. The old law defined forcible sexual intercourse as rape
• The amended Section 375 defines rape as insertion of any object or body part by a man into any part of the body of a woman. Oral sex also constitutes rape. Forcing
a woman to submit herself to the same by another man constitutes rape
• In the amended law, manipulating any body part of a woman that leads to rape as
mentioned above will also be treated as rape. This holds gang rape participants accountable if they hold or bind the victim while someone else rapes her
• No change in the definition of forcible. It means against a woman’s will or consent;
if the man isn’t her husband but she believes he is; she is intoxicated or drugged and in a state where she is unable to understand the nature and consequences of that to which she gives consent; or she is under 16

Old punishment

7 years to life imprisonment. But state governments frequently freed life convicts after 14 years

New punishment

7 years to life imprisonment. If the victim is reduced to a vegetative state or is seriously disfigured in addition to the rape, the maximum punishment can extend to the
“remainder of that person’s natural life”


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