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Violation Of Fundamental Rights Of Males As Victims Of Sexual Harassment: An Analysis With Reference To India

Sexual harassment is a term that is used to describe all uninvited and unwanted verbal and or physical acts of a sexual nature by a person in authority toward a subordinate.[1] The term 'sexual harassment' was popularised by Lin Farley, who was an American journalist, author and a feminist, in April 1975 during the course of a New York City Human Rights Commission hearing about women in the workplace.

The term, thus, was popularised by a woman in relation to the unwelcome verbal and physical acts against women. This basically reinforces the view that sexual harassment is gender-specific phenomenon, which the most common view across the world. However this is only a wide accepted notion which does not portray the real picture. Sexual harassment is not only limited to females and women in the society, but it is also committed against the males and transgender peoples.[2]

As Roberta Matuson[3] points out that many people mistakenly believe that sexual harassment is limited to females. Sexual harassment and sexually discriminatory acts may be committed against any person, irrespective of their age, class strata, gender, caste, sex, place of birth, residence, religion, region, and the like. Sexual harassment is barbaric in nature and has serious physical and psychological consequences for the victims.

The victims may be anyone, and are not only limited to any specific gender. Men and boys who are sexually harassed, abused and assaulted have more or less the same experience as other survivors, and they are susceptible to other challenges that are more unique to their experience.[4] Sexual harassment is a gender-neutral offence, and is not gender-specific phenomenon. However, sexual harassment is widely construed as a gender-specific phenomenon for sexual harassment is generally identified as an unfair treatment meted out to an ideologically weaker sex, who are the victims, based on the class approach.

Women and females generally are the focal point of attention who are widely thought to require protection against sexual offences, abuse, harassment and other forms of violence which are quite common in a patriarchal society. However, the existence of the same shall not be so construed to mean that men are of a superior class who are not subjected to acts amounting to sexual harassment and abuse, even in a patriarchal society.

There are two traditional categories of sexual harassment, which are quid-pro-quo and hostile work environment. The former category consists of the demands for sexual favours in exchange for the procurement of benefits in respect of promotion and growth in professional life. The latter category consists of the inappropriate act or acts of the colleagues and peers and the seniors towards the victim which makes the work place uncomfortable for the victim.[5]

Violation of Fundamental Rights of Males as Victims of Sexual Harassment as per the provisions of the Indian Constitution
The cases relating to harassment of male victims of sexual harassment are barely reported as in India, for the socio-cultural fabric of India is set in such a way that it considers males to be the head of the family and refuses to recognize them as being victims of sexual harassment. The faulty assertion that male victims to sexual harassment and abuse is uncommon prevents the legislative bodies from coming up with gender-neutral legislations preventing and prohibiting acts of sexual harassment and abuse among the male, female as well as the transgender victims equally.

Sexual harassment is not associated with any specific gender as such. Sexual harassment and abuse runs counter to the basic feature of "Equality of status and of opportunity" and to the goal of securing social justice, which is enshrined in the Preamble to the Indian Constitution. Sexual harassment is also against the concept of equality before the laws and equal protection of the laws, as is enshrined in Article 14 of the Indian Constitution.

Article 15 of the Indian Constitution prevents the state from discriminating against its own citizens on the grounds of religion, race, caste, sex, place of birth, or any of them, which however is not the case in reality, inter alia there being no gender-neutral laws to be neutrally applicable to all the genders' in India. It also violates the constitutional guarantee relating to the protection of life and personal liberty enshrined in Article 21 of the Indian Constitution, as it deprives the victim of the peaceful enjoyment of his or her life and curtails the personal liberty of the victim.[6] The World Health Organization (WHO) has estimated that the lifetime prevalence for childhood sexual abuse against males is 7.6 percent globally.[7]

As per the Crime survey of England and Wales (CESW) about sexual violence, till March 2017, there were 631,000 males who experienced sexual assault since the age of sixteen.[8] These instances depict that sexual harassment of males is indeed a matter of rising concern across the world. In India, sexual harassment and abuse of males are not specifically addressed by any legislation, whether particular or specific, and thus males are prone to experience sexual harassment without any remedy or effective relied mechanisms under the Indian law.

In a recent study conducted[9] in India, it revealed that out of 222 males surveyed, around 16.1% said that they have been coerced into having sex. There are also situations when males are raped too, and sexually harassed by their partners, but such incidents do not come into the picture, considering the typical Indian circumstances. There are no official data and statistics regarding the same in India, for such incidents are considered timid for a male in the Indian society and thus it is widely presumed that men cannot be sexually harassed, abused and raped.

Position in other countries in comparison to India
There are gender-neutral laws in many countries of the world, amongst them are U.S.A., United Kingdom, Canada, Denmark, Philippines, Australia, Finland, Ireland and many more countries. Some of these countries recognize both women and men to be perpetrators as well as victims of sexual offences.[10]

In India, the gender-neutral legislation in force includes the POCSO Act of 2012, which equally criminalizes and punishes the conduct of adult perpetrators, in cases of sexual offences committed against children. This legislation only penalizes the act of sexual offence committed by adults on children, irrespective of the gender of the perpetrators or of the victim children. There is no legal right or recourse available especially for the male gender, above the age of eighteen years, as the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) applies only to acts of sexual violence committed by adults on children below the age of eighteen years.

The problem lies in the fact that the majority of criminal laws in India relating to sexual abuse, harassment and other sexual offences committed against adults are gender-specific in their nature, from times immemorial. In the 21st century India, the existing patterns of gender-stereotypes, though have been subdued, are deeply embedded in the society, and by virtue of that, still continue to exist. Nevertheless, in India, for the first time in the 172nd Law Commission Report,[11] the real picture of incidents of sexual harassment and offences against men were highlighted, in the light of the gender-specific laws and there was a demand to amend the same gender-specific laws and provisions and make them gender-neutral.

This Report suggested that the law on rape, as is mentioned in Section 375 of the IPC be made gender-neutral by substituting the definition of "rape" with that of "sexual harassment". It was through the Criminal Law (Amendment) Bill of 2012 in India that it was proposed that the term "rape", wherever it appeared in the provisions of the Criminal Law Manual, should be replaced by the term "sexual assault", and sought to define the term "victim" as "any person" so as to make the offence gender-neutral and widen its scope.

These guidelines were only accepted by the University Grants Commission (UGC), where after the notification issued by the Ministry of Human Resource Development (MHRD), the UGC exercised its power under Sections 26(1) (g) and 20(1) of the UGC Act, 1956, and made these regulations apply to all higher educational institutions in India.

The above regulation is an initiative towards having a gender-neutral law in respect of sexual offences in India, besides the Protection of Children from Sexual Offences Act of 2012, but the same is not so in respect of adults out of the premises of the higher educational institutions . In July 2019, an attempt was made to make sexual offences criminally punishable by making them gender-neutral, with the introduction of the Criminal Law (Amendment) Bill, 2019 in the Rajya Sabha.

The objective of this Bill was to suitably amend the provisions of the Indian Penal Code, 1860, (IPC) The Criminal Procedure Code, 1973, (Cr.P.C) and The Indian Evidence Act, 1872, so as to extend their protection to all genders without any bias and discrimination. However, this Bill could not be passed in the Indian Parliament and turn into an Act. This Act aimed to make the act of sexual assault by perpetrators punishable irrespective of their gender, which is the urgent need in India. Gender-neutral laws would recognize persons of all genders as victims of sexual harassment, abuse and sexual offences.

This would not strengthen or weaken the sensitivity and efficacy of sexual harassment laws which are gender-specific. Though, the fact remains that in India, sexual offences, including rape, are committed more in respect of females than any other gender in terms of the ratio of such offences, however, it would be unfair and against the basic tenets of social justice if the law relating to sexual offences are not made gender-neutral in their application to the victims, as well as the perpetrators to such offences. There is thus an immediate need to recognize incidents of sexual offences irrespective of taking into account the gender of either the perpetrator or the victim, by enacting a suitable piece of legislation in India.

Various Developments with respect of sexual offences against males in India
In State of Punjab vs. Ramdev Singh[12], it was observed by the Hon'ble Supreme Court that rape is not only an offence against the person of a woman, but rather it is a crime against the entire society. Rape was designated as a crime against the basic human rights, and was stated to violate the most cherished fundamental right to life and personal liberty enshrined in Article 21 of the Indian Constitution.

Thus, it can be stated that the Supreme Court in this particular case observed that the crime of rape be treated as a gender-neutral crime which may be committed by persons belonging to any of the genders against the other, and also did away with the notion that only women could be a victim of such crimes.

On 23rd December 2012, a three-member Committee headed by Former Chief Justice of the Supreme Court of India Justice J.S. Verma, and comprising Former Justice Leila Seth and Senior Advocate Gopal Subramaniam, known as the Justice Verma Committee, was constituted to recommend amendments to the Criminal Law Manual, i.e. I.P.C, Cr.P.C, and Evidence Act in relation to the offences of sexual harassment, rape, trafficking, child sexual abuse, medical examination of victims, police, electoral and educational reforms, after the gruesome rape incident took place in New Delhi on 16th December, 2012.

The Criminal Law (Amendment) Bill had been introduced in the Indian Parliament in the first week of December 2012. This particular Bill recognized the need for the long-standing necessary changes in the definitions of rape as was provided in Section 375 of IPC, and the punishment for rape as was provided in Section 376 of the IPC, and accordingly recommended to enlarge the definition of rape and increasing the category of aggravated rape, evidentiary rules, among other things.

Once the gruesome rape incident took place in December 2012, Justice Verma Committee was set up to review the provisions of this particular Bill and recommend necessary changes in it. This particular Committee submitted its report on 23rd January 2013 to the Indian Parliament.

The Justice Verma Committee 2012 in its report underlined the need to recognize different sexual orientations and recommended the inclusion of males and transgender persons while making suitable changes in the criminal law. This Committee had strongly recommended that victims to sexual offences should be such who were to be considered irrespective of their gender identity. Justice Verma Committee also recommended the criminalization of marital rape.

However, unfortunately these recommendations relating to the gender neutrality of sexual offences were not incorporated as draft law, named as The Criminal Law (Amendment) Bill, 2013, which subsequently turned into an Act. The Indian Parliament in 2013 had also enacted The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 which aimed at providing protection to women at workplace. The same was enacted near after sixteen years since the Supreme Court laid down several guidelines in the Vishaka case[13].

Interestingly, in the Vishaka case[14] the Supreme Court gave a gender-neutral definition of sexual harassment, and defined sexual harassment as such unwelcome sexually determined behaviour, whether done directly or by implication, and includes physical contact and advances, a demand or request for sexual favours, sexually coloured remarks, showing pornography, and any other unwelcome physical verbal or non-verbal conduct of sexual nature.

However, this gender-neutral definition of sexual harassment was qualified with the observation that where any of the above mentioned acts are committed in circumstances where the victim has reasonable apprehension that in relation to her employment or work, whether she is drawing salary, or honorarium, or voluntary, whether government, public or private enterprise, such conduct can be humiliating and may constitute a health and safety problem.

The Court stated that it is discriminatory for instance when the women has reasonable grounds to believe that her objection would disadvantage her in relation to her employment or work, including recruiting or promotion, or when it creates a hostile work environment. This qualifying statement by the Court made the above stated gender-neutral definition of sexual harassment inclined towards a particular gender.

Now, the POSH Act,[15] enacted in 2013 brought suitable changes in the IPC, with respect to their application to women only and had little to protect males from any sexual offence committed by a female aggressor, or by any other gender. In November 2018, the Supreme Court Division Bench comprising the then CJI Ranjan Gogoi and Justice S.K Kaul refused to hear the petition praying for striking down Section 375 of the IPC as violating Articles 14, 19 and 21 of the Constitution.

The petitioner in the case claimed that criminal law should recognize both men and women can be rape victims as well as perpetrators. The Supreme Court however, refused to hear the petition stating that the prayer claimed is the subject matter to be dealt with by the Legislature.[16]

There are various instances where males have been sexually harassed and abused. It was described in detail in an article in the Huffington Post, in the second week of May 2017, Vijay Nair, a Mumbai based entrepreneur and founder of Only Much Louder (OML), faced a horrific incident of cyber stalking. The article describes in detail the chilling incident faced by Mr. Nair for several months. The ordeal started when someone anonymously posted a sexually explicit tweet on Mr. Nair Twitter profile.

A series of sexually explicit messages thereby followed, which were sent to Mr. Nair by the cyberstalker over his Whatsapp and email. Many of such messages were copied to Mr. Nair's friends and acquaintances. After sometime, Mr. Nair's family got to know about the identity of the cyberstalker, who was found to be a woman with whom Mr. Nair had a previous acquaintance. These incidents stress on the need for having gender-neutral laws on sexual offences in India for punishing such perpetrators.

Mr. Nair's ordeal was not just the single incident of a man being sexually harassed and abused. In another case, reported in 2020, Jyotirmay Majumder, an engineer from Kolkata faced tortures from his engineer wife in their residence in Salt Lake, Kolkata. The incident arose when Mr. Majumder, owing to the outbreak of the Coronavirus pandemic in 2020, had left his parents to Baidyabati to keep them safe from the pandemic.

However, in June 2020, when the pandemic restriction were relaxed for the first time, Mr. Majumder brought his parents back to their Salt Lake residence. Mr. Majumder's wife was extremely upset at this development and alleged that her in-laws were going to bring the Coronavirus along with them to their house in Salt Lake. The husband Mr. Majumder complained that his wife in this case beat him, thrashed him, poked pins and caused him cigarette burns.

The husband stated that the Bidhannagar Police refused to lodge an FIR on his report as they stated to him that the laws are pro-woman. After much persuasion, he said, that the Police only registered a general diary report. The woman was neither summoned to the police station by the Bidhannagar Police nor arrested in this case, and the helpless husband Mr. Majumder had to file a complaint before the Court seeking remedy.

It is also pertinent to mention that Delhi-based Centre for Civil Society had found that from the total number of males surveyed, around 18% were reported to have been coerced or forced to have sex. Out of these 18% males, 16% claimed to have been coerced by a female perpetrator, whereas 2% claimed to have been coerced by a male perpetrator. [17]

In another case, a boy from a reputable college broke up with his previous girlfriend and started dating another girl. His ex-girlfriend and her mother lodged a plan to implicate the boy with false charges. The girl made a quick call to the boy and then switched off her phone and left the town. A few days later, the girl's mother lodged a missing case with the police, and blamed the boy, so that the boy is caught, arrested and grilled by the police. Such incidents affect the boys psychologically, at an early age, as also the general presumption lies against the boys and in favour of the girls who are deemed to be the victims of sexual and other offences.

Another aspect which is worthy to mention is that married women and many other vengeful people have been misusing Section 498A of the Indian Penal Code, 1860, which had been inserted by Criminal Law (Second Amendment) Act, 1983 in order to avenge themselves on their husbands, in-laws and other relatives of her husband, in cases where the husband and his relatives are not at fault.

Section 498A of the IPC, 1860 was enacted and brought in force to defend and protect the rights of innocent and helpless married women from being abused by their husbands and relatives of her husband, and to afford her reasonable relief and remedy from such acts of cruelty by her husband and other relatives of her husband. However, from the past few years, there has been a rampant rise in case where unscrupulous people have been misusing and misinterpreting the grounds mentioned in Section 498A of the IPC and thereby falsely implicating the husband and his relatives, accusing all of them for the offence of demanding dowry and or any other suitable offence, thereby facilitating the sexual harassment and abuse of men and his family members.

It was owing to the wide misuse of the provisions of Section 498A of the IPC that the Supreme Court and other Courts had to step in to correct and rectify the glaring loopholes in Section 498A of IPC.

In Arnesh Kumar vs. State of Bihar[18] the petitioner Arnesh Kumar was married to respondent no. 2, referred to as Sweta Kiran. The petitioner was arrested under Section 4 of the Dowry Prohibition Act, 1961 after his wife Sweta affirmed that his family members had demanded dowry from her, and on her failure to do so, had driven her out of her matrimonial home. Sweta also alleged that when she brought the same to her husband's notice, he supported his family and even threatened to marry another woman if the dowry demand was not met.

The petitioner husband applied for anticipatory bail, which were rejected by the Sessions Court and by the High Court. The issues which arose in this case was what were the rights of an accused person before and after arrest, and what are the remedies left to a person when there is a misuse of Section 498A of the IPC by a married women.

The Supreme Court in this case granted provisional bail to the petitioner and stated that Section 498A of IPC, by virtue of being a non-bailable and cognizable offence, is more often used as a weapon rather than a shield by disgruntled married women. The Court stated that it leads to harassment of the husband, including sexual, emotional and physical, and other relatives of the husband's family by getting them arrested under Section 498A.

It is even more distressing that old persons being arrested without any prima facie case. The Court in this case laid down eight guidelines for arresting a person under Section 498A of the IPC, so that the police does not unnecessarily arrest an accused and the Magistrate does not unnecessarily authorize any detention.

Firstly, the Court directed all State Governments to instruct their police officers not to automatically arrest an accused when an offence under Section 498A is registered. The police must satisfy themselves about the necessity for arrest under the parameters laid down in Section 41 of the Cr.P.C, 1973.

Secondly, all police officers should be provided with a check list containing specified sub-clauses under Section 41(1) (b) (ii).

Thirdly, the police officer must forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while the accused is produced before the Magistrate for further detention.

Fourthly, the Magistrate while authorising the detention of the accused shall peruse the report furnished by the police officer in terms aforesaid laid down, and shall only authorize detention after recording its satisfaction.

Fifthly, the decision not to arrest an accused shall be forwarded to the Magistrate within two weeks from the date of institution of the case with a copy to the Magistrate, the time period of which may be extended by the Superintendent of Police of the district for reasons to be recorded in writing.

Sixthly, notice of appearance in terms of Section 41A of the Cr.P.C, 1973 needs to be served on the accused within two weeks from the date of institution of the case, the time period of which may be extended by the Superintendent of Police of the district for reasons to be recorded in writing.

Seventhly, failure to comply with the directions mentioned by the Court above shall not only make the concerned police officers liable for departmental action, but they shall also be liable to be punished for contempt of court, which needs to be instituted before the High Court having territorial jurisdiction.

Eighthly, when a Judicial Magistrate authorizes detention of an accused without recording the reasons for such, then the concerned Judicial Magistrate shall be liable to departmental action by the respective High Court having jurisdiction over such Judicial Magistrate.

The Supreme Court also added that the above directions shall not only apply to cases under Section 498A of the IPC or under Section 4 of the Dowry Prohibition Act, 1961, but shall also apply to cases where the offence is punishable with imprisonment for a term which may be less than seven years or which may extend up to seven years, whether with or without fine.

These guidelines or directions were specifically laid down by the Hon'ble Apex Court of India so as to prevent the misuse of the laws aimed at protecting females from sexual offences, so that the same does not become a means or an instrument which could lead to and or facilitate the sexual harassment of males.

Conclusion
It is indeed necessary and quintessential to make laws which are gender-neutral in their application. The laws in India with respect to sexual offences have to evolve in accordance with the changing requirements of the citizens and people. It is widely witnessed that criminal laws which were women centric have been widely misused, which had prompted the Courts to step in and correct the lacunas in such laws, so as to protect the interest of males.

One may argue that India is a patriarchal society and by virtue of being so, males enjoy an advantageous position over the females and mostly women are the ones who are at a disadvantaged position as compared to males, since times immemorial till this present day and thus to protect the females from all forms of sexual and non-sexual offences, laws should be women-centric.

However, many studies have found out that men are in no better position than females as regards the offences of sexual nature. India, despite being a patriarchal society, all males do not enjoy a privileged position in the eyes of the 21st century, where both the genders' are provided equal resources and opportunities in almost all avenues of profession. However, in spite of the fact that women and men are considered to be at par in many professions and walks of life, but still the law does not treat them to be at par with men, so far as the Indian laws are concerned.

The majority of Indian legislators, even those who are a part of the executive, largely seem to ignore the fact that any person, irrespective of gender, can be a victim of sexual abuse and harassment. This attitude and outlook of the Indian legislators and executive needs to change with the changing times. It is also essential that media, including the print media, electronic media and the social media should cease from portraying the stereotypical gender images so as to let people see the reality around them.

The media needs to uphold the fact that a man can have hobbies which are considered to be feminine by our conservative Indian society, while a woman can have hobbies which are considered to be masculine in the typical societal lens. The media should inculcate these values in itself considering the wide social impact which it has on the majority audience.

The concept of gender-neutrality needs to be stressed in all spheres of life, with the lead role being played by the local, regional and national media, so as to achieve the idea or essence of gender-neutrality which has been enshrined in the Preamble and Articles 14, 15 and 21 of the Indian Constitution.

The menace of sexual harassment and abuse of males in India can be checked primarily by creating a mass consciousness in favour of gender-neutrality of sexual offences, whereby both victims as well as perpetrators of sexual offences would be treated irrespective of their gender identity, where not only men would be liable to be punished as perpetrators of sexual offences such as sexual harassment, but also women would be liable to be punished for the same, and also persons belonging to any other gender.

There is thus an immediate need to enact a new legislation, or re-frame and modify the existing legislations in a gender-neutral language so as to lay stress on the fact that a person's gender is not the deciding criteria for determining whether such person is legally liable or not. Law reflects the general conscience and the collective will of the people of the society, thus there needs to be gender-neutralization of the whole justice system, including the legislative and executive wing of the state.

There needs to be a holistic society comprehensive in outlook, while appreciating diverse elements present in the society, which would further the genuine cause of all, not only of any specific gender, race, caste, sex, place of birth, residence, among other things. This will help to bring a genuine and positive change in the society and thereby aid to effectively redress offences such as sexual harassment committed against males in the Indian society.

References:
  1. Sexual harassment <https://www.merriam-webster.com/dictionary/sexual%20harassment> accessed 27th March 2022.
  2. Brian Stuffer, 'Sexual Violence against Men, Boys and Transgender Women in the Syrian Conflict', (2020 Human Rights Watch), <https://www.hrw.org/report/2020/07/29/they-treated-us-monstrous-ways/sexual-violence-against-men-boys-and-transgender> accessed 5 April 2022.
  3. Roberta Chinsky Matuson is the President of Matuson Counsulting, and is a seasoned consultant with industry experience. She is a prolific writer who has published hundreds of articles worldwide. She is also a former columnist for the Boston Business Journal.
  4. Sexual Assault of Men and Boys, (RAINN) accessed 7 April 2022.
  5. Manmeet Kaur and Siddharth Singh, 'Sexual Harassment of Men at Workplace' (National Social and Legal Research Journal, 18 October 2020) . Accessed 7 April 2022.
  6. Manmeet Kaur and Siddharth Singh, 'Sexual Harassment of Men at Workplace' (National Social and Legal Research Journal, 18 October 2020) . Accessed 7 April 2022.
  7. World Health Organization, Global Status Report on Violence Prevention 2014(Geneva, 2014).
  8. The Crime Survey for England and Wales (CSEW), About Sexual Violence, Rape Crisis England and Wales.
  9. Kerti Sharma and Shipra Tiwari, 'Should Sexual Offences be Gender Neutral' (SCC Online Blog, 27 May 2021) accessed 2 July 2022.
  10.  References from Anjitha Santosh, 'Gender Neutral Rape Laws: A Step Towards Equality' (ProBono India, 2 October 2020) <http://probono-india.in/blog-detail.php?id=178>accessed 2nd July, 2022.
  11. Law Commission of India, Report No. 172 on Review of Rape Laws (25th March 2000).
  12. (2004) 1 SCC 421, 424.
  13. Vishaka and Others vs. State of Rajasthan and Others (AIR 1997 SC 3011; [1997] 6 SCC 241).
  14. Ibid
  15. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
  16. Editorial, Let Legislature dwell of gender neutral rape laws: Supreme Court turns down petition challenging Section 375, IPC, THE LEAFLET (New Delhi, 13 November, 2018).
  17. Editorial, Let Legislature dwell of gender neutral rape laws: Supreme Court turns down petition challenging Section 375, IPC, THE LEAFLET (New Delhi, 13 November, 2018).
  18. (2014) 8 SCC 273.

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