Observing the present scenario which is most unsafe for women , this project also puts forward and presses the need of including eve teasing under a new head of liability. This would mean more stringent laws against eve teasing. The remedy that is provided to the victim will be of a larger degree. This would definitely see a decline in the rate of eve teasing in India.
In other words, this project tries to put some light on the grey areas of sexual harassment or what is called eve teasing in India. Examining these grey areas also has the intention of attracting the attention of eminent jurists, lawyers and the la makers to this grave civil wrong and to pressurize them to formulate some laws in this direction so as to give some relief to the victim which is otherwise impossible.
Torts
One of the primary functions of the law is to resolve the conflicting interests and balance the competing claims. Every time the social relation causes a friction , the law comes into the picture to resolve such seemingly complex conflicts. Different laws govern the human relations of varying nature.Law of Torts, which primarily consists of principles developed by the courts , aims at providing a remedy whenever and wherever a legal injury is caused by a civil wrong of a fellow being and for which no remedy is generally available under some specific civil law.
Property rights and personal freedoms are, inter alia , the interests protected by the law of Torts. It tries to remedy them by way of compensation and in some cases through Injunction. The instant branch of Law, the whole thrust of which is to safeguard against unlawful infringements of various kinds, has certain edge over other laws. The genesis of this branch is related to the Common Law principle of Justice, Equity and good Conscience. It can provide relief against a conduct which is unjust though not violative of any law stricto sensu. The principles of Torts have been found to be indefinitely flexible. The courts can mould them as per the changed scenario without being criticized for doing violence with the words of any statute. Also , its compensatory mechanism takes better cognizance of the plight of the victims. It has a residuary machinery for redressal of wrongs in the area of civil wrongs. Thus, we can definitely say for sure that Law of Torts has become an integral part of any legal system.
The word Tort has been derived from the Latin word Tortum which means to twist. It includes that conduct which is not straight or lawful but is twisted , crooked, and unlawful. This branch of law consists of various Torts or wrongful acts whereby the wrong doer violates some legal rights vested in another person. The law imposes a duty to respect the legal rights vested in the members of the society and a person making a breach of that duty is said to have done the wrongful act . Tort is a breach of duty recognized under the Law of Torts.
Some Definitions
It is a civil wrong for which the remedy is a Common Law action for unliquidated Damages and which is not exclusively the breach of a contract or the breach of a trust or other merely equitable obligation.- Salmond
Tortious liabilities arise from the breach of a duty primarily fixed by law: this duty is towards persons generally and its breach is redressible by an action for unliquidated damages. - Winfield
Torts can be conceptualized to include the following elements :-
Tort is a civil wrong.
This civil wrong is other than a mere breach of contract or breach of trust.
This wrong is redressible by an action for unliquidated damages.
Is There Any General Principle of Liability
The Basic question is that does the Law of Torts consist of a fundamental general principle that it is wrongful to cause harm to other persons in the absence of some specific ground of justification or exscuse , or does it consist of a number of specific rules prohibiting certain winds of harmful activity and leaving all the residue outside the sphere of legal responsibility
There are two schools of thought on this Issue.
Salmond's View
Salmond advocated the Pigeon Hole Theory. He said that there should be fixed heads of liability in Torts like Nuisance , Defamation etc. All the new cases that would arise in the course of time should be included in these fixed heads of liability only by expanding them. There should be no new heads of liability .He was stringent in his approach."Winfield's View
Winfield advocated the open chain link Theory .He advocated the formulation of new heads of liability as and when the need arises. He believed in the expansion and flexibility of Law. He belonged to the Liberal School of Thought.Advocating Winfield's Stand
I personally would like to advocate the Winfield's stand on the issue of the heads of liability .It is liberal. It is flexible and expandable .It ensures full justice to a newer condition and a case by giving it enough space by creating a new head of liability. It also helps in ensuring speedy justice when a large number of such similar cases are reported and are brought in front of the courts for justice. I believe in the growth of Law and to me, creating specific heads of liability and to hamper its growth .Therefore , I rate Winfield's stand above Salmond's view.
Eveteasing - The Concept
Nature Has Given Women So Much Power That The Law Has Given Them Very Little. - Dr. Samuel Johnson.The term Eve teasing is used to refer to sexual harassment of women in public places such as the streets, public transportation , parks, beaches , and cinema halls. This type of a public harassment by a lone man or gangs of women includes such as verbal assaults such as making passes or unwelcome sexual jokes : nonverbal assaults such as showing obscene gestures , winking , whistling , and staring ; and physical assaults such as pinching, fondling and rubbing against women in public places .In addition, several instances of eve teasing have been followed by more violent assaults such as rape and murder.
Eve teasing is a euphemistic expression that lives in post - colonial India and refers largely to sexual harassment of women in public places, thereby constituting women as eves, temptresses who provoke men into sexual titillation. This popular perception of sexual harassment posits the phenomena as a joke where women are both a tease and deserve to be teased. Considered a growing problem throughout the sub - continent , eve teasing ranges in severity from sexually coloured remarks to outright groping. It is the same story everyday.
Eve teasing may sound obscene but harmless in its behaviour but this act of molesting women has sometimes resulted in rape and even death of the victim. In one such horrific instance in Bihar, few young guys eve teased a 18 year old college woman on her way home ; she was outraged and yelled at the guys. Next day the woman was kidnapped, raped and beaten by the same men until she was dead.
What right did these men have to violate the integrity of a woman for no fault of hers and why is eve teasing supposed to be a thing we are supposed to live with?
Eve Teasing In India - Some Facts And Figures
I goggled eve teasing and found many hits. Some thought provoking and shocking facts and figures about eve teasing in India are as follows:# The expression eveteasing is Indian in origin. You wont find it in most of the dictionaries. Native speakers of English do not use it.
# Studies show that 32 percent of the eve teasers are students, 35 percent are anti socials while the remaining 33 percent are middle aged men.
# The number of registered cases of sexual crimes against women in India increases from 67 ,072 in 1988 to 84000 in 1993.In 1995 alone , more than 25000 cases of molestation and 12000 cases of rape were reported in the capital city of New Delhi. It is estimated that well over 80 percent of the sexual crimes go unreported. For example , 7643 of the 50000 estimated instances of violence against women were reported to the police even in Kerala , a south Indian state with the highest women?s literacy rate.
# An increasingly large number of college going women taking public transportation in Delhi have resorted to carrying pins, pen knives , and even daggers as a deterrent . Others have taken self defence classes.
# A recent survey revealed that approximately 90 percent of college women in New Delhi have experienced sexual harassment in some shape or form. Yet , it is estimated that only about 1 in 10000 eve teasing occurrences are reported to the police.
# 98 percent of the women have stated that sexual harassment on roads has affected their personal or academic development in one way or the other.
These facts may appear untrue and horrifying but they clearly show the plight of women in India. The condition is deteriorating everyday. It is high time , therefore , that we include eve teasing as a Tort under a new head of liability and curb this heinous practice.
Eve Teasing - The Psychology Behind
Many psychologists believe that sex , love or fun is not the only motive that men indulge in this behaviour. Eve teasing is closely related to the patriarchal mindset of the Indian male. Men are raised to believe that they are more powerful physically and emotionally than women. They feel that they are doing nothing wrong just having some fun. Women on the other hand are made to feel vulnerable and the weaker sex.Teachers of psychology and social scientists believe eve teasing to be a result of the frustrations suffered by a majority of youth. Disappointed by the unbecoming attitude of teachers and indifferent parents , they yearn for an outlet to vent their aggression and depression .Besides , many who do not inherit good values tend to indulge in acts of sexual harassment.
Eve teasing can be seen as a rite of passage for boys on their way to becoming men. Considering that sex is not the only motive , it would be reasonable to conclude that the psychodynamics of eve teasing are closely linked to the issue of masculinity and the masculine agenda.
At the risk of over simplifying a complex phenomenon , it would not be imprudent to say that in our country , the construct of masculinity is usually equated with patriarchy .In other words , masculinity is experienced not so much as a set of emotional or behavioural characteristics unique to the male gender , but more in terms of hierarchial domination over the feminine gender ; so that the most feminine man gets a socially dominant position over his female counterpart.
Gender segregation from childhood , lopsided parental relationships as well as the representation of man- woman relationship in literature and popular cinema , all serve to reinforce the patriarchal model of masculinity in the mind of the growing male child.
It may appear paradoxical that in a country like India where the mother is generally deified, the growing male child does not learn to respect the members of his mother's gender. But it is because of this deification that the boy finds it easy to slip into the patriarchal mode , for he does not relate to his mother as a woman, but as a helpless and martyred dependent who needs to be pitied and cared for.
The vocal emergence of feminism has also pushed the contemporary male a little on the back foot , not only the women are threatening to encroach on his male dominion, but also because he does not have any idea about how he can counter encroach on hers. So he moves squarely into the adversarial position, something he is instinctively comfortable with and , during adolescence , focuses not just on how he can express himself sexually, but also on how he can claim his patriarchal right. As part of his evolution into the patriarchal role , an arena is required in which his valour can be expressed. Organized sport and cultural activities are examples of these , but require some talent and application. Whereas standing with a group of peers at a bus stop or in a Cineplex, passing lewd remarks , gesticulating lasciviously and generally behaving obnoxiously requires mere numbers, and when the hapless girl is in no position to defend herself despite visible evidence of distress , domination gets established.
Thus, we tried to understand the psychology of an average eve teaser when he indulges himself in the heinous practice.
All this study has been done only to establish the fact further strongly that it is now high time to include eve teasing as a separate Tort so that this injustice and crime against the honour and dignity of the women can be stopped.
Eve Teasing And Tortious Liabilities
I am sure reading the previous pages must have forced you to think about the plight of the Indian women. Mere thinking would not do in the present era. We should come forward and take strong steps against this practice. Strong laws should be enforced to tackle this problem. Eve teasing should be taken as a grave offence against the dignity and honour of a woman.We can start by making eve teasing as a separate head of liability under the Law of Torts. When included in law as a civil wrong, it would certainly see a decline in the cases of eve teasing Also the women will have a weapon in their hands to uphold their dignity. They will feel more empowered and independent.
Eve Teasing As A Tort
Let us examine eve teasing under the light of the three essential elements of Torts. Torts can be conceptualized to include the following essential elements:Tort is a civil wrong
This civil wrong is other than a mere breach of contract or breach of trust. This wrong is redressible by an action for unliquidated damages.Eve teasing is a civil wrong. The eve teaser causes injury to the plaintiff which in turn affects her both physically and mentally. It is an unlawful infringement on the victim's privacy and person. She is tortured in the process. It also hampers her peace and happiness. It , in other words ,curtails her right to enjoy her life and be happy.
Eve teasing is neither a breach of contract nor a breach of trust. It is an encroachment on a woman's right and her dignity.
Eve teasing is an unexpected incident. There is no question of a contract in it. Thus , its remedy is unliquidated damages which are to be decided by the courts according to the gravity of the injury caused. The courts can also provide a remedy in the form of injunction and detention also. This would force the eve teasers to at least think thrice before they indulge in such Torts and its basic guiding principle of Ibi Jus Ubi Remedia i.e. where there is a violation of a legal right , there has to be some relief , compensation and remedy for the victim.
Eve Teasing As A Trespass To Person
Every person's person is inviolate. Interference , however slight with a person's elementary civil right to security of the person , and self determination in relation to his own body , constitutes to trespass to the person.Eve teasing is the worst form of trespass to person possible. It is done intentionally to hurt a woman physically , emotionally and spiritually. It is also done to wrongfully gain the attention of the woman. It violates the person's elementary civil right to security of person. It is a grave civil wrong against women . It is more torturous for small girls and adolescents.
The application of force to the person of another without lawful justification amounts to the wrong of battery. Avoidable physical contact and advances , touching , patting , whistling , pinching, physical assault and molestation by the eve teasers amounts to Battery. An unwanted physical touch , an unwanted kiss all amount to battery and are actionable by the Law.
The act of putting another person in reasonable fear or apprehension of an immediate battery by means of an act amounting an attempt or threat to commit a battery amounts to an actionable assault. An eve teaser also commits a assault when he commits the shameful act of eve teasing.
Thus, we can say that eve teasing amounts to Trespass to person as it constitutes both Battery and Assault.
Compensations And Remedies
Eve teasing is a civil wrong . It is an unlawful infringement of the victim's legal rights. So according to the principle of Ibi Jus Ubi Remedia there should be a remedy for the victim in the cases of eve teasing.
This part is very important for many reasons.
Firstly , it gives relief to the victim as she can recover the loss caused to her.
Secondly, it gives the victim immense satisfaction to see the eve teaser punished and admonished. She develops a sense of satisfaction , happiness and regains her confidence and self esteem.
Thirdly , it gives a strict warning to the eve teasers so that they do not indulge in this heinous practice. It , thus , strongly condemns the practice of eve teasing.
The remedies can be in the following forms:
Public Humiliation: The eve teasers should be humiliated public ally so as to make them aware and feel guilty of the shameful practice that they indulged in . People should socially boycott them as to make them realize their mistake. Their names should be published in the newspapers describing their shameful act in detail so as to make them feel guilty and realize their mistake.
Monetary Compensation: Damages should be awarded to the victim in terms of money . It should be big money. It will recover the loss that she must have suffered and also will discourage men from involving in eve teasing.
Injunction: The court can also ask the eve teasers to strictly abstain from indulging in eve teasing in case of repeated acts of similar kind.
Detention: The court could also arrest a person for eve teasing under article 57 , cpc . This would further discourage people from eve teasing.
References
Vishakha V. State of Rajasthan
This case saw the formulation of the sexual harassment of women at workplace (prevention) bill drafted by the National Commission for Women. It provides for some stern measures to curb the menace of sexual harassment of women at work place.
The bill which defines sexual harassment which includes any act of verbal or gestural sexual advances , sexually explicit or derogatory remarks or statements , unwelcome sexually determined behaviour such as avoidable physical contact and advances , touching , patting , whistling , pinching, whistling , staring , sexually slanting and obscene jokes , suggestive remarks , compromising invitation ,use of pornographic material , demand for sexual favours , threats , innuendoes , physical assault and molestation.
Staring and simple comments on the physical appearance of your female colleagues can land you behind bars for as many as five years and with a fine of Rs.20000.
With the enactment of this act , there has been certainly a decrease in the number of sexual harassment. This act has proved itself to be a strong weapon in the hands of women to prevent sexual harassment and combat it.
Conclusion
Eve teasing is a wrong against the honour , dignity and self respect of a woman. It hurts her immensely. There is a strong need for combating this fast growing problem.
Hence, I strongly believe and hold that there is a immediate need to bring eve teasing as a separate head of liability under the Law of Torts. There should be a provision for a strong punishment for eve teasers. At the end of it I would like to say only one thing that in a country like India where women are worshipped at par with the Gods , this kind of behaviour against women is unjust , unfair and Hippocratic. We should be respectful to women. Then only we would be on the lines of happiness , prosperity and success.
"Yatra Naryantu Pujyante Tatra Ramyate Devtaa."
The author can be reached at: [email protected] / Print This Article
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