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Here’s Why Taking The Legal Route In Cases Of Sexual Harassment Is A Herculean Task In India

  • IWB Post
  •  November 3, 2018

With the rise of #MeToo in India, we also got to witness the rise of a certain skeptical faction hell bent to contest against all the testimonies that came to light in the movement.

They kept raising points like what took the victims so long, was it a personal vendetta, and most importantly, they asked why didn’t the survivor directly take the legal route instead of crying it out to the world.

The Quint recently set out to make these disbelievers see reason and sought the help of legal experts to understand the dynamics of the situation.

During one such conversation with The Quint, senior advocate, Rebecca John explained, “There is something wrong in the way our systems are functioning. The people who are in charge of the criminal redressal system – judiciary, executives and administration – should look at why women do not want to go to court. It is not an environment that is conducive, encourages women to complain,”

She also came up with an answer for everyone who has been crying foul all this time and said “As a criminal defence lawyer I completely accept the argument from the other side, which is an allegation can be made but how does the man then refute the allegation. The court system gives him an opportunity to refute the allegation. Which is equally important in a constitutional democracy like ours.”

To better understand how the legal system in India works and why women shy away from lodging complaints, The Quint thus tried to comprehend it and all. Here are the excerpts from their findings: 

Defamation Case

“First thing that happens is when a woman speaks up. You may have a defamation case or a legal notice sent to the survivor by the accused, even before she files a complaint at the police station,” shares Supreme Court advocate Karuna Nundy.

A very recent example here is the case of Former External Affairs Minister MJ Akbar who has filed a defamation case against Priya Ramani after she accused him of sexually assaulting her.

“There are certain cases in the Indian Penal Code which can only follow the complaint case procedure – defamation is one of them. There cannot be an FIR in a defamation case, it is barred by law. It can only follow the complaint case procedure, which is why MJ Akbar has filed a private complaint and his pre-summoning evidence is happening. We are not in the picture, Priya Ramani is not in the picture at the moment,” explains senior advocate Rebecca John, who is representing Priya Ramani.

“Once his evidence and that of his witnesses are recorded minus cross-examination as the accused has not yet been summoned, his lawyers will have to argue that this is a fit case to summon the accused, that is Priya Ramani. If the court agrees to their submission, she will be summoned. And once she is summoned, she gets the opportunity to cross-examine and bring her own evidence,” explains senior advocate Rebecca John.

Filing a Complaint

Quite often when someone raises a complaint of sexual harassment, it is not taken seriously by the police. Like Nundy explains, “The police do not want to deal with it as they have so much more happening. Or you have situations where the officer will say they will do it but delay it. Or he can’t be bothered about it, or there is bribery/ inducement from the other side. There could also be pressure.”

The FIR

The police files an FIR once a complaint is registered. Nundy explains, “According to the 2013 Lalita Kumari judgment, if the complaint amounts to a cognisable offence, the police has to register an FIR without a preliminary inquiry. Which means they have no option but to file an FIR.”

What is cognisable offence: The IPC crimes pertaining to sexual harassment including Section 354, 354A, 354B, 354C, 354D and Section 509.

As per an SC judgment, “Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognisable offence and no preliminary inquiry is permissible in such a situation.”

The law also has provisions against officials who refuse to file an FIR under section 354 and 509. Nundy explains, “If the FIR is not filed, the public servant can be punished with rigorous imprisonment for a minimum of six months and the prosecution can happen without the permission of the state government. The provision is almost never been used so far, however, we have used it at times to make sure the FIR is registered.”

“What normally happens on the ground is that you have to get senior police officials to speak  to the station house officer and register the FIR. Typically, largely it is not an easy task. On the other hand I have seen FIRs registered very fast. It depends on officer vs officer,” says Rebecca John.

Finally, the police investigation and the corresponding report

Once an FIR is filed, the police has 60 days to file the charge sheet. “Both sides can assist the police with the investigation. The complainant can provide crucial details of the people she spoke to or the emails/messages sent. If Facebook was used then the police can send them a legal request for information, that they will have to comply with,” Nundy shares.

She adds, “Our police remains understaffed and so I cannot say the evidence gathering is great. Particularly for sexual harassment cases, since they have so much going on it is difficult for them to make it a priority which is very unfortunate.”

After the investigation, the police can file three types of reports. They are:

Charge sheet: Filed in the case when the police has found evidence against the accused and thus can charge the perpetrator under various sections of the IPC.

Closure report: Where the police fails to find any evidence against the accused but leaves it on the court to decide to decide what has to be done.

Cancellation report: When the police finds indisputable evidence that suggests that they should not pursue the case any further.

NOTE: In case of a closure report, the complainant gets the right to file a protest petition against the same.

The trials

After the submission of the charge sheets, there are arguments from both sides following which the charges are framed. After this, the trial starts. “Whereas rape cases are often put in fast-track courts, sexual harassment cases are less of a priority,” Nundy shares. While the police is obliged to finish the investigation within 60 days, the time taken to frame charges is left open-ended.

The verdict

In the case of conviction under Section 509 of the IPC which includes offences pertaining to words, gesture or act intended to insult the modesty of a woman, the punishment for the accused generally include with simple imprisonment for a term which may extend to three years, and also a fine.

For Section 354 and the four offences related to it, the punishment might range from 1-5 years, including fine.

I am not sure if it should come as a shocker that the verdict can literally take forever. As Rebecca John explains, “It can take forever. There are many cases in court which have been going on for 6, 7, 8 and 9 years and are nowhere near completion. Which woman wants to put her life on hold for so long,?”

H/T: The Quint

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