We are living in exciting times where the Internet and electronic media is playing ever more significant roles in spreading rumours and delivering news. The barrier of language, region, religion is of bleak significance today since people all over the world can connect to the rest of the world through social media and the internet. This has given rise to more significant legal aspects of regulation and control of electronic media and internet which was earlier a topic only for debates. Mee Too Movement came as a wave over the internet, allowing women to raise their voices and share their experiences surrounding sexual harassment.
Governments of various countries thought it important to regulate and control material being circulated via the internet just like any other material being circulated offline. Nowadays social media which is a by-product of the internet is not merely a platform to connect with family and friends but also an awareness spreading tool whose control is not in the hands of the Government or the people who are authorized but everyone who has a cell and an internet connection. It is no doubt true that the internet today plays an important role in informing and educating people but it also has the power to persuade the thinking of people. Unlike earlier times when people could only get the information through television after hours, today the internet has turned hours into minutes and anyone can get the information instantly and via a wide range of platforms.
Role of Internet vis-a-vis Article 19(1)(a)
Social Media today can be summed up by saying that it can build public opinion and make them think in a particular way. It is not wrong to say that any platform that can make people overcome Social Media’s influence has yet to exist. When a person shares content on social media, there are people that can access that content in two broad capacities i.e., in their individual capacity and the other is in their professional or representative capacity as in being a part of a registered society, business entity or body corporate. Since social media is not only a platform to connect with family and friends but also to advertise, sell and marketing of various businesses it is not very rare that a content shared by a person will come in the knowledge and access of various companies that have influence over millions and billions of people all over the world and who will use a particular content by moulding it in their own favour. For example use of a particular incident where a Zomato guy is alleged to have misbehaved with the customer by its rival companies like uber eats and swiggy to release an advertisement titled customer satisfaction and respect is what we are known for. This will provide authentication to the content shared regarding the delivery boy who is alleged to have committed a crime by one side of the story and which can also be false after the decision of the Judicial Body responsible to deliver judgments in the country. Herein people will be made to believe the story and accused will be declared convict based on social media trial by people. Here the legislature and judiciary will not be able to save the accused from the humility he has faced before being tried for the crime and acquitted. Right to freedom of speech and expression guaranteed under Article 19(1)(a) will surpass other equally important rights such as contempt of court and reasonable restriction on freedom of speech and expression which is clearly not the intent of Constitution of India which provides equal importance to all the rights enshrined under the Constitution of India which is the mandatory purpose that cannot be taken away by some enactment or amendment.
Metoo movement can be traced back recently to the year of 2018 wherein the social media was flooded with confessions of women who have been a victim of sexual harassment. Most of these women were celebrities that encouraged more and more women to speak up about the incidents of sexual harassment and their harassers. This event has been successful to an extent that many women were encouraged by the fact that whatever happened to them has happened to others as well and that they do not stand alone. From a legal viewpoint this incident could only be justified to a certain level. This movement that started with blaming harassers soon ended up blaming patriarchy and the Government for the poor condition of women. It is true that social media provided platform to various victims of sexual harassment to come forward and speak about the issue but it is also true that there is roughly any legislature enacted for the purpose of regulating a movement like this. The authenticity of the confessions has to be determined in order to calculate someone’s crime. There are various laws in India in order to deal with rape and sexual harassment cases. The question as to what extent are they sufficient remains a question of debate but it cannot take the shape of a movement like MeToo and discharge the burden of preliminary enquiry or FIR which are the first steps in order to register a complaint of rape. If movements like MeToo will be given the power to call anyone accused of rape or sexual harassment then the legal mandate of first information report under Section 154 in The Code Of Criminal Procedure, 19731 which says that FIR is essential for Putting Criminal Enforcement Machinery in Motion in India. In order to provide legal assistance and ease in filling an FIR in India, the court in Lalita Kumari v. State of Uttar Pradesh 2 and Sandeep Shukla v. State3 has provided that police are duty-bound to register FIR and investigate matters if the information received by them discloses commission of the cognizable offence. In order to seek justice, it is the responsibility of the justice seeker to put legal machinery in motion by availing legal remedies and options. You may cry as loud as you can about a particular event outside the jurisdiction of the court but you will only be made eligible to contend your case and seek justice when your grief gets into the ears of the judiciary which is only possible by availing legal remedies via lawful provisions. It is no doubt true that the MeToo movement has made both the social and legal arena all over the world aware of a much-needed issue.
Me too is not the first event that has brought sexual offences to the notice of legislature and judiciary and it’s most probably not the last. Earlier in 2013 various guidelines, known as the Vishakha Guidelines, were issued for the protection of women from sexual harassment at the workplace which was the result of Vishakha & Ors v. State of Rajasthan which resulted in the formation of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.5 This Act provides the procedure for complaint as well as enquiry and it also has the power to provide punishment as well as fine. Section 26 of the Act has made it clear the penalty to any person or employer who found guilty of sexual harassment and sexual abuse. The 2013 Act provides mandatory provision, that every employer of a company shall constitute an Internal Complaint Committee at each office or branch, where the number of employees is 10 or more than 10 members. The offences related to sexual harassment at workplace are not confined to a country nor are the remedies. This issue has been identified at International Level as a human right violation that goes deep down at causing harm to the dignity of a woman. Reasons may differ from country to country but the offence remains the same. This has been taken to be a serious problem that causes great harm to the dignity of an individual. It also a treat to right to equality as well as safe, healthy, and productive working environment and International Organizations like International Labour Organization (ILO) and the World Health Organization (WHO) have taken various measures to deal with the increasing matters of sexual harassment at workplace. The ILO has established new global standards aimed at ending violence and harassment in the world of work. According to the Universal Declaration of Human Rights (UDHR), everyone has certain rights which include the right to life, liberty and security of person regardless of their sex.7 This principle was reaffirmed by the International Covenant on Civil and Political Rights (1966), which protects the right to life8 and the right to liberty and security of person.
There are other national statutes as well that are in coherence with the International Conventions which deal with the offence of sexual harassment and provide remedies. One such act is Industrial Employment (Standing Orders) Act, 1946 which defines the term ‘sexual harassment in lines with Vishakha Guidelines. It also makes it compulsory to set up a complaints committee that will be responsible for the redressal of grievances regarding sexual harassment at the workplace. Conduct which is obscene and immoral and which amounts to outraging the modesty of women is punishable under Section 294 of the Indian Penal Penal Code.10 Section 354A inserted by the Criminal Law (Amendment) Act, 2013 has made sexual harassment a separate offence that is punishable with rigorous imprisonment which may extend to three years.11 Not only conduct but any gesture intended to outrage the modesty of a woman or intruding her modesty is made punishable under Section 509 with simple imprisonment and fine.  The modesty of a woman is not outraged only by acts or conducts but their indecent representation also amounts to harassment. The Indecent Representation of Women (Prohibition) Act, 1987 prohibits indecent representation of women through advertisements or in publications, writings, paintings, figures or in any other manner and for matters connected therewith or incidental thereto. Women are supposed to be individuals who have equal rights like any other member of society. They also possess equal rights guaranteed by various acts and statutes. There have been many movements and cases that resulted in the enactment of statutes for the safety of women. The dignity of women is called an important asset that is essential for her right to life. An act like sexual harassment not only infringes the dignity of women but also impacts the working environment of an organization. Indian economy is a developing country’s economy in which both genders participate and work for the growth of the economy which ultimately provides growth potential for the country. A nation that suffers from sexual harassment of women at the workplace in any industry let it be the film industry of any other industry is going to get its economy, as well as the socio-legal environment, affected. Time has changed at a rapid speed as compared to the 18th or 19th century and today the world is looking towards India, as a potential partner to undertake huge business transactions. India has taken huge strides to make the environment conducive for foreign investors to commence business relations with it. In that case, a country that suffers internally in dealing with sexual harassment offences and whose laws are incompetent cope up with changing scenarios is going to get affected, economically as well as socially. Making laws and passing acts does not relieve the burden of the Government. Where the work of one organ of Government ends the others begin and enforcement of laws by the Judicial Body is important along with making of the laws by the Legislators.
Constitution of India
Prior to the year 1997, there was no need felt to deal separately with the offence of sexual harassment. Legislature and Judiciary did not have any act or Judicial pronouncement in this regard. Constitutional Provisions enshrined under Articles 14, 19, 21 known as the golden triangle and Article 15 were thought sufficient to deal with any such issue. Right to equality was guaranteed to women under the Constitution of India to work and participate equally in events, offices, organizations etc. No separate law or statute was there to deal with the offence of sexual harassment at the workplace or anywhere else. As a party to the Convention on Elimination of Discrimination Against Women, India never felt the need to enact any legislation to deal with the issue of sexual harassment until 2013 which led to the emergence of Vishakha Guidelines. In the case of Swapna Barman v. Subir Das , The Supreme Court held that “Under Section 509 that the word ‘modesty’ does not lead only to the contemplation of sexual relationship of an indecent character. The section includes indecency, but does not exclude all other acts falling short of downright indecency.” The purpose behind enacting guidelines and sections in order to deal effectively with the offence of sexual harassment at the workplace was to deal with the issue which was otherwise neglected till 2003 in the case of Vishaka & Ors v. State Of Rajasthan & Ors. The issue of sexual harassment at the workplace came gradually into the notice of the Legislature by various cases that involved that issue. The government realized that it is time to make changes in the law in force in order to make it compatible with the changing scenarios. The landmark judgment of Swapna Barman v. Subir Das made the Supreme Court elaborate the meaning of the term indecency rather than giving it a limited meaning. Landmark Judgement of Vishaka & Ors v. State of Rajasthan & Ors led to the guidelines for the protection of women from sexual harassment at the workplace. Similarly, Mukesh & Anr v. State For NCT Of Delhi & Ors. (Nirbhaya Case) led to the Criminal Law (Amendment) Act, 2013. Sometimes there are issues for which there is already a law and it becomes easy to deal with that issue with a provision already in hand for support but on many occasions, there are issues that are unfelt and which emerge with time and situation. This is not the case only with a particular offence but it can also be the case with the interpretation of a particular offence already given in a statute. A statute may be silent on a particular issue or it may be limited to the extent of its applicability. If a statute is silent on a particular issue, there must be an enactment to deal with the issue and in the case where the statute has limitations with regard to the applicability, the extent has to be extended with an amendment. It was the incident of Nirbhaya that made lawmakers aware of a law that will fix the liability of a minor and will be judged on the basis of its maturity. The Act reduced the age of the majority from 18 to 16 in order to make an individual liable for which he has attained maturity and still escapes liability under the Criminal law due to the age criteria. Sometimes the needs of the changing society are not felt by the lawmakers until there is some incident or movement in that regard. MeToo is one such movement that must be taken into consideration in order to realize the changes needed. The proposition that wealthy and famous men can do no wrong is no truer and it must be realized that anyone can do wrong. People who are powerful in terms of wealth and position are in a position to suppress the will of those who are their inferior. MeToo led to many confessions by women which have revealed dark secrets about big industries where women might be subjected to sexual harassment. It is high time to make enactments in order to cope up with crimes committed by high professionals at the workplace. They are not very different from white-collar crimes and the enforcement must be made effective. Effective enforcement of laws is an essential wheel of the justice rendering process which still remains only a topic for debate. Sections like Section 114-A of the Indian Evidence Act, 1872 deals with the presumption as to the absence of consent in certain prosecution for rape must be made specifically to deal with sexual harassment at the workplace. A reading of the Section makes it clear that where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped, and such woman states in her evidence before the court that she did not consent, the court shall presume that she did not consent, and the burden of proving otherwise will lie on the accused. The onus can be shifted but the burden remains absolute.
Metoo movement brought into light the most important yet the least discussed topic of sexual harassment by powerful and so-called reputed individuals whom the world could only have seen as inspiration before knowing their darker truths. The movement has changed the earlier proposition that sexual harassment is committed only by strangers or people of a bad reputation. It is important to note that this movement has only gained popularity in India in last two years although it was popular in America in 2017 wherein millions of Americans including black women have stated to be affected by sexual harassment. Various states have also banned non-disclosure agreements related to sexual harassment. In that case, no men can buy the victim’s silence now and they are not to be bound by the non-disclosure agreement to speak about sexual misconduct. This movement has made the legislature and judiciary think in a more improvised way which is the need of the hour in the 21st century. Another side of the coin exists in which it is equally true that the movement was run by famous celebrities who were joined by other women. Basically, the celebrities were the flag bearer and people followed them with the movement. They started the trend but the ground reality is they themselves were the ones on which the media had focus. Real and authentic stories of women who live in rural areas or are illiterate or are not famous were not able to gather an audience. Women working in less glamorous and lower-profile industries are still struggling to make themselves heard. While those who have spearheaded this campaign can surely be proud of what they’ve achieved in such a short space of time but they should be under no illusions since the hardest part is still to come which can only be achieved by the enforcement of the rights given in the statute. Mere statutes with rights of the victims are no more than empty words which can only be given meaning by their successful implementation by the Courts. There have been many landmark judgements these days which have changed the earlier position with the needs of the time and society. For example in P. Gopalakrishnan v. State of Kerala,14 the Hon’ble Supreme Court has examined “intra-conflict of fundamental rights flowing from Article 21, that is, right to a fair trial of the accused and right to privacy of the victim” and held that these two are equally important rights and must be construed in a way to give effect to both making one a nullity. In another case, the Madras High Court has observed that “Punishing an adolescent boy who enters into a relationship with a minor girl by treating him as an offender, was never the objective of the POCSO Act.15 These cases justify the need for changes in laws with the changing needs of the society and the need of society today is to have more stringent laws for sexual harassment at the workplace by high profile individuals and effective enforcement of those laws.
- The Code of Criminal Procedure, 1973, s. 154.
- (1973) 1 SCC 216.
- (2009) 1 Mah LJ 97 (FB).
- (1997) 6 SCC 241.
- Sexual Harassment of women at workplace (Prevention, Prohibition and Redressal) Act 2013.
- The International Labour Organization, 1919. Convention No. 190 and Recommendation No. 206.
- Universal Declaration of Human Rights (UDHR), 1948. Art. 3.
- International Covenant on Civil and Political Rights (1966). Art. 6.
- International Covenant on Civil and Political Rights (1966), Art. 9.
- Indian Penal Code, 1860, s. 294.
- Id., s. 354A.
- Id., s. 509.
- (2004)1GLR 168.
- (2020) 9 SCC 161.
- Vijayalakshmi v. State Rep. By Inspector Of Police, (2015) 7 MLJ 681.
BY- DRISHTI YADAV | HIMACHAL PRADESH NATIONAL LAW UNIVERSITY, SHIMLA