All around the globe, women have been facing sexual harassment for ages. The scenario is the same in both developing as well as developed countries. The menace of sexual harassment has been rampantly spreading like a virus knowing no boundaries of religion, race, caste, etc.

Over the years, the role of women has shifted from simply doing household work and today, they've entered the commercial world as well. This has resulted in a substantial increase in the offenses against women. In India, every 12 minutes a woman is being sexually harassed.[1]

The menace of sexual harassment of women and girls has become a problem of much larger proportions than one can imagine. In a report published by the International Labor Organization, an estimate was made that "one-third of the women in industrialized society are sexually harassed at work place".[2]

In today's world, sexual harassment has become a global issue. The National Commission for Women surveyed working women which revealed that despite the tremendous increase in the number of cases of sexual harassment, women employees are reluctant to report the matter to concerned authorities.[3]

However, in India sexual harassment was recognized as a "legal injury" only in 1997, in the apex court's landmark judgment in Vishakha v. State of Rajasthan[4] where it was ruled that "as there existed a void as far as the legal provisions related to workplace harassment of women is concerned, the guidelines issued by the Court in the case shall be applicable till the time the Parliament does not come up with a legislation on the topic."[5] 15 years after this judgment, the Indian Parliament successfully passed the law concerning the issue of workplace sexual harassment through "the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013".[6]

By "The Criminal Law (Amendment) Act, 2013", Sec 354A found its way into the IPC which specifies the list of acts constituting the offense of sexual harassment. These include "physical contact and advances involving unwelcome and explicit sexual overtures; or a demand or request for sexual favors; or showing pornography against the will of a woman; or making sexually colored remarks."[7]

Aims & Objectives
The researcher in the present study aims to critically analyze "Sexual Harassment under IPC". For the furtherance of this aim, the researcher chalks out the following objectives:

• To define the expression "sexual harassment".
• To analyze the status of sexual harassment as provided under IPC.
• To study the development of sexual harassment laws in India.

Research Questions:

1. How sexual harassment is defined under the Indian Penal Code?
2. What is the status of sexual harassment under the Indian Penal Code?
3. How did the sexual harassment laws develop in India?

Research Methodology
To cover all the sources of the topic, Doctrinal research has been used. Also known as library-based research; doctrinal research focuses on reading and analysis of the primary and secondary data. When reviewing several text books to the relevance of the topic, the bulk of their contents are concerned with identifying and analyzing the sources which help in making this assignment. It is concerned with the concept and synthesis of research of whole documents in respect of "sexual harassment under IPC".

Defining Sexual Harassment
Precisely defining the term "sexual harassment" is a difficult task and to determine its contours is even more difficult. International Labor Organization defines "sexual harassment" as "unwelcome sexual advances or verbal or physical conduct of a sexual nature which has the effect of unreasonably interfering with the individual's work performance or creating an intimidating, hostile, abusive or offensive working environment."[8] In 1979, Catharine Mackinnon defined "sexual harassment" as "unwanted imposition of sexual requirements in the context of the relationship of unequal power."[9]

The expression 'sexual harassment' covers a gamut of acts ranging from misbehaving or irritating a lady to graver forms such as sexual abuse and assault including rape.

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereafter referred to as 'POSH Act') defines "sexual harassment" under Sec 2(n) as "to include any one or more of the following unwelcome acts or behavior (whether directly or by implication) namely:

1. Physical contact and advances
2. A demand or request for sexual favors
3. Making sexually colored remarks
4. Showing pornography
5. Any other unwelcome physical, verbal, or non-verbal conduct of a sexual nature

There are various forms in which a woman can be sexually harassed such as verbal, non-verbal, visual, and physical.[11] "Eve teasing" falls in the category of verbal harassment whereas physical harassment or explicit sexual behavior is categorized as "sexual harassment".

These two are separated from each other based on the harm caused by them– eve teasing is largely considered harmless and sexual harassment as harmful. Eve teasing is largely defined as "sexual harassment of women in public spaces, thereby constituting women as 'eves', temptresses who provoke men into states of sexual titillation".[12]

However, legally it is defined as "crimes that outrage the modesty or insult women".[13] Eve teasing includes different kinds of harassment faced by women in public places that are usually viewed as casual, trivial, and funny. This popular view of sexual harassment portrays it as a joke where it has been normalized to objectify women and tease them sexually. This structural violence legitimizes harassment against women by positing the very presence of women in society as "provocative".

As such, eve teasing tries to control women by imposing certain inhibitions on them and restraining their general mobility and accessibility to public spaces.[14] It makes them dependent on men for their safety even if they have attained financial or emotional independence.

Sec 509 of the IPC defines 'eve teasing' and reads as "whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both."[15]

However, the Indian Penal Code was amended in the year 2013 by "the Criminal Law (Amendment) Act, 2013" to include "sexual harassment" as a separate offense that is not simply restricted to 'workplace'. It is enshrined under Sec 354A of the IPC which provides for "Sexual harassment and punishment for sexual harassment".[16]

Sexual harassment has never been about sexual attraction and always about power and intimidation. What is important to note in cases of sexual harassment is "how the person being harassed is affected and not on the harasser's intent". Just because a woman gives in that does not necessarily mean that she welcomes such a conduct. Casual flirting cannot be equated with sexual harassment as it is not unwelcome and is based on mutual attraction and friendship.

After analyzing the above definitions of sexual harassment, we can conclude that "sexual harassment is a form of sex discrimination projected through unwelcome sexual advances, request for sexual favors and other verbal or physical conduct with sexual overtones, whether directly or by implication".[17]

Sexual Harassment under the Indian Penal Code, 1860
Even though there is no specific provision regarding sexual harassment under criminal law in India, certain provisions have been included in the IPC that label certain acts as an offense of sexual harassment and also, prescribe their punishment. Section 509 provides for "word, gesture or act intended to insult the modesty of a woman."[18] It has a punishment of up to three years in prison and a fine. Thus, a penalty for acts amounting to sexual harassment is prescribed under Sec 509 of the IPC. To make these provisions applicable, a careful analysis of Sec 509 is necessary.

Certain conditions need to be met to apply Sec 509, such as:

1. there must be an intention to insult the wresting of any woman;
2. such insult must be carried by:
   1. altering any words,
   2. making any sound or gesture,
   3. exhibiting any object,
   4. such utterances, making or exhibiting, or use of words must be intended that such words or sound shall be heard by such women or object shall be seen by such women or intrudes upon the privacy of any woman".[19]

Other sections of IPC dealing with sexual harassment are:

1. Sec 354A: "Sexual harassment and punishment for sexual harassment"
2. Sec 354B: "Assault or use of criminal force to woman with intent to disrobe"
3. Sec 354C: "Voyeurism"
4. Sec 354D: "Stalking"

Another section prescribing penalties for similar acts is Sec 294 of the IPC which states that:
"Whoever, to the annoyance of others, (a) does any obscene act in any public place, or (b) sings, recites and utters any obscene songs, ballads or words, in or near any public space, shall be punished with imprisonment of either description for a term that may extend to three months, or with fine, or with both."

The said provision is enshrined under Chapter XVI titled "Of Offences Affecting Public Health, Safety, Convenience, and Morals". It is a cognizable and bailable offense and is triable by any magistrate.[20]

Sec 354 of the IPC states that "Whoever assaults or uses criminal force on any woman, intending to outrage her modesty or knowing it likely that he will thereby outrage her modesty, shall be punished with imprisonment for a term which may extend to two years, or with fine, or with both."[21] In Girdhar Gopal v. State[22], the High Court of MP held that "under section 354 IPC only women possess modesty that may be outraged. Thus, men are inviolate and not the repository of socially recognized attributes that shame them or society.

It is interesting, however, that the judgment holds that both men and women are capable of outraging women's modesty."[23] Sec 354 prescribes punishment with imprisonment that may extend up to 2 years or a fine or both.[24]

However, to date, no specific provision has been inserted in the IPC to prohibit pornography. Sec 292 of the IPC states that "anyone found selling, putting on hire, distributing, publicly exhibiting in pamphlets, papers, writings, drawings, paintings, representations, figures, or any other object, which is obscene shall be punished on first conviction with imprisonment for a term which may extend to two years, and with fine which may extend to two thousand rupees, and, in the event of a second or subsequent conviction, with imprisonment for a term which may extend to five years, and also with fine which may extend to five thousand rupees."[25]

Sec 292A of the IPC punishes "printing, etc. of grossly indecent or scurrilous matter or matter intended for blackmail". In Ranjit D. Udeshi v. State of Maharashtra[26] the constitutionality of Sec 292 was put to test on the ground that it violates "the right to freedom of speech and expression" enshrined under Art 19 of the Constitution of India.

The apex court held that "Sec 292 of the IPC is constitutional and not ultra virus to Art 19(2) of the Constitution". The punishment for "sale etc. of obscene objects to young persons" is prescribed under Sec 293.[27]

The Criminal Law Amendment Act, 2013[28] became effective on February 3, 2013, and Sec 354A IPC was inserted in it that defined "sexual harassment". Sexual harassment is "unwelcome physical contact and advances, including unwanted and explicit sexual overtures, a demand or request for sexual favors, showing someone sexual images (pornography) without their consent, and making unwelcome sexual remarks".[29] The prescribed punishment for it is imprisonment for up to three years and a fine.

The IPC has defined the term "sexual harassment" and related offenses and has prescribed the punishments for the same:

Sec 354B provides for "Criminal force to woman with intent to disrobe."[30] IPC has prescribed a punishment of three to seven years in prison and a fine.

Sec 354C provides for "voyeurism"[31] which means "watching or capturing images of a woman without her consent".[32] It has two types of punishment; on first conviction, imprisonment for a term of one to three years and a fine, and muon ltiple convictions, imprisonment for a period of three to seven years and a fine.

Section 354D provides for "stalking"[33] which means "following a woman and contacting her or trying to contact her despite her saying she does not want contact or monitoring her using the internet or any other form of electronic communication".[34] There are 2 types of punishment: on the first conviction – a jail term of up to three years and a fine and multiple convictions- imprisonment of up to five years and a fine.

Development of Sexual Harassment Law in India
The Vishakha Judgment
When the writ proceedings were pending in the case of Medha Kotwal Lele v. Union of India[35], the Parliament could not bring a comprehensive law to deal with workplace sexual harassment. Only 10 years after the Vishakha judgment "the Protection of Women against Sexual Harassment at Workplace Bill, 2007" (2007 Bill) was presented before Parliament. During these years, cases of sexual harassment continued to be reported and were tried.

In the landmark judgment of Vishakha & Ors v. State of Rajasthan & Ors[36], sexual harassment in the workplace was recognized for the very first time in India by its apex court. Vishakha and other NGOs working for women's empowerment filed a PIL against the State of Rajasthan and the Union of India for enforcement of the fundamental rights of working women under Articles 14, 19, and 21 of the Constitution.

This petition was filed in the aftermath of a brutal gang rape of one Bhanwari Devi, who was a social worker in the state of Rajasthan and tried to stop a child marriage.[37] This was used as an opportunity to address the "glaring lacunae" faced by the Indian working women who did not have any remedy for sexual harassment in the workplace.[38]

The Supreme Court used its powers of judicial activism and legally binding guidelines were framed to eradicate sexual harassment in the workplace, the basis of which was the "right to equality and dignity" guaranteed by the Constitution as well as by the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).

Post Vishakha Judgment
After Vishakha, another case that came before the Supreme Court in this respect was the case of Apparel Export Promotion Council v. A.K Chopra[39]. The law laid down in the Vishakha judgment was reiterated by the Supreme Court in this case. The Court upheld "the dismissal of a superior officer of the Delhi-based Apparel Export Promotion Council who was found guilty of sexually harassing a subordinate female employee at the workplace."[40]

In this judgment, the apex court gave a wide interpretation of the definition of "sexual harassment" and ruled that "physical contact was not essential for it to amount to an act of sexual harassment."

Further, in Medha Kotwal's judgment, the Supreme Court took cognizance and started monitoring the implementation of Vishakha guidelines in all states and Union Territories. Directions were issued to the State Governments for filing affidavits and emphasizing the ways they've undertaken to ensure the implementation of the Vishakha guidelines.

If the Court is not satisfied with their response, it further issues directions to States to undertake measures to ensure effective implementation of the Vishakha guidelines.[41] It was also asserted by the apex court that if a case of non-compliance or non-adherence to the guidelines is found, the aggrieved party is free to approach the High Court.[42] The status of an inquiry authority given to the complaints committee was as provided in the Vishakha judgment for Central Civil Rules, 1964 and the report of the complaints committee will be deemed to be an inquiry report under those rules.

Conclusion
Protecting women against sexual harassment is an intrinsic part of protecting women's human rights. It is a stepping stone towards ensuring the independence of women, giving them equal opportunities and the right to work with dignity.[43] The menace of sexual harassment has become a social challenge that should be addressed and is still prevalent today more than ever. In India, new laws have been laid down to ensure women's safety.

They include some strict provisions for spreading awareness and retentive measures as it is every woman's right to be protected against any kind of sexual harassment, intimidation, and exploitation. A powerful preventive role can also be played by workplace policies and programs to reinforce legal restrictions and for this, it is important to make the general public aware of the gravity of sexual harassment.

In eradicating sexual harassment, a proactive role can also be played by the NGOs. The courts should also make use of the power of judicial activism because it is every woman's right to be protected against sexual harassment and to work in a safe environment that is free from any kind of harassment.

End-Notes:

1. Astha Poonia, Sexual Harassment at Workplace, 5 AIJJS 50, 50 (2019).
2. S.C. Srivastava, Sexual Harassment of Women at Work Place: Law and Policy, 39 IJIR 364, 364 (2004).
3. Ibid.
4. AIR 1997 SC 3011.
5. Varun Malik, A Deliberate Critique to Sexual Harassment Laws in India, 4.1 NLUJ LR 46, 47 (2017).
6. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, No. 14, Acts of Parliament, 2013 (India).
7. Varun Malik, A Deliberate Critique to Sexual Harassment Laws in India, 4.1 NLUJ LR 46, 47 (2017).
8. Thesaurus: Sexual Harassment, ILO, Geneva (2011).
9. S.C. Srivastava, Sexual Harassment of Women at Work Place: Law and Policy, 39 IJIR 364, 366 (2004).
10. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, s. 2(n).
11. ILO's report on Preventing and Responding to Sexual Harassment at Work: Guide to the Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act, 2013, India.
12. Pratiksha Baxi, Sexual Harassment.
13. Ibid.
14. Pratiksha Baxi, Sexual Harassment.
15. Indian Penal Code, 1860, s. 509.
16. Indian Penal Code, 1860, s. 354A.
17. S.C. Srivastava, Sexual Harassment of Women at Work Place: Law and Policy, 39 IJIR 364, 367 (2004).
18. Indian Penal Code, 1860, s. 509.
19. S.C. Srivastava, Sexual Harassment of Women at Work Place: Law and Policy, 39 IJIR 364, 369 (2004).
20. Indian Penal Code, 1860, s. 294.
21. Indian Penal Code, 1860 s. 354.
22. (1953) Cr L J 964.
23. Ibid.
24. Indian Penal Code, 1860 s. 354.
25. Indian Penal Code, 1860, s. 292.
26. AIR 1965 SC 881.
27. S.C. Srivastava, Sexual Harassment of Women at Work Place: Law and Policy, 39 IJIR 364, 370 (2004).
28. The Criminal Law Amendment Act, 2013, No. 13, Acts of Parliament, 2013 (India).
29. Aniket Dwivedi, Sexual Harassment at Workplace, 9 CPJLJ 256, 264 (2019).
30. Indian Penal Code, 1860, s. 354B.
31. Indian Penal Code, 1860, s. 354C.
32. Ibid.
33. Indian Penal Code, 1860, s. 354D.
34. Ibid.
35. (2013) 1 SCC 311.
36. AIR 1997 SC 3011.
37. Astha Poonia, Sexual Harassment at Workplace, 5 AIJJS 50, 55 (2019).
38. Indira Jaising, Eliminating Sexual Harassment at the Workplace: Broadening the Discourse on Gender Equality, 40 COMMW. L. BULL. 375 (2014).
39. AIR 1999 SC 625.
40. Astha Poonia, Sexual Harassment at Workplace, 5 AIJJS 50, 55 (2019).
41. Indira Jaising, Eliminating Sexual Harassment at the Workplace: Broadening the Discourse on Gender Equality, 40 COMMW. L. BULL. 375 (2014).
42. Medha Kotwal Lele v. Union of India, (2013) 1 SCC 311.
43. Astha Poonia, Sexual Harassment at Workplace, 5 AIJJS 50, 55 (2019).