Understanding Section 354A of the Indian Penal Code (IPC)

Victims of sexual harassment are left with life-long trauma and negative effects on their psyche, including PTSD, suicidal thoughts, depression etc. The feelings of being violated, powerlessness and fear that they experience may forever interfere with their relationships and social interactions. Sexual harassment can happen anywhere – at the workplace, in public or at home. It can be inflicted by anyone – a stranger, a family member, or a friend. This uncertainty and lasting impact can make people feel unsafe, especially in an uncomfortable or unknown environment and in the presence of persons stronger than them – physically or figuratively. By establishing clear definitions and penalties for sexual harassment, Section 354A of the Indian Penal Code aims to give victims a voice and a path to justice and enforce society with a sense of safety, while also acting as a deterrent to those tempted to commit the crime. This statute makes it clear that sexual harassment will not be tolerated, and those who commit these acts will face consequences.

What is Section 354A of the IPC?

Section 354A of the Indian Penal Code defines sexual harassment and criminalises it. It sets penalties for men found guilty of such behaviour. It aims to combat sexual misconduct by addressing a range of unacceptable actions, including unwelcome physical contact with sexual overtones, demands for sexual favours, sexually coloured remarks, and the showing of pornography without consent. The penalties under this section vary, with potential imprisonment ranging from one year to three years, and/or fines. This law was enacted to safeguard individuals from sexual harassment, ensuring offenders face justice and victims have legal recourse. An offence under Section 354A is cognizable and bailable.
 

What is Sexual Harassment?

According to Section 354A of the Indian Penal Code, sexual harassment by a man includes:

1. Unwelcome physical contact and advances with sexual overtones, such as:
   • Grabbing someone's waist, arm, or shoulder without consent.
   • Pressing or brushing against someone in a crowded space deliberately.
     
     

2. Demands or requests for sexual favours, such as:
   • A superior asking an employee to engage in sexual activities in exchange for a promotion or a favourable review.
     
     

3. Making sexually coloured remarks, such as:
   • Inappropriate comments about someone's body or appearance.
   • Sexual jokes or innuendos in the workplace or public spaces.
   • Making lewd comments about someone's clothing or suggestive remarks about their private life.
   • Catcalling or whistling with sexual overtones.

4. Showing pornography against the will of a person, such as:
   • Sending explicit images or videos via messaging apps.
   • Displaying pornographic material in the workplace or a public setting where others are compelled to see it.
     
     

Penalties and Punishments under Section 354A of the IPC

The punishments for a man, under Section 354A of the Indian Penal Code depend on the severity and type of sexual harassment:

1. For Unwelcome Physical Contact or Sexual Advances: The punishment can be imprisonment for a term extending up to three (3) years, or with a fine, or both.
2. For Demands or Requests for Sexual Favours: The punishment is similar, with imprisonment for up to three (3) years, or with a fine, or both.
3. For Sexually Coloured Remarks: This is considered a lighter offence, with imprisonment extending up to one (1) year, or with a fine, or both.
4. For Showing Pornography Against Someone's Will: The punishment is imprisonment for a term extending up to three (3) years, or with a fine, or both.
   
   

Legal Defences and Exceptions

Section 354A of the Indian Penal Code (IPC) addresses sexual harassment by clearly defining certain actions and imposing penalties for those found guilty of committing these acts. However, like any legal provision, there are defences and exceptions that individuals accused under this section can invoke to protect their rights and ensure fair treatment.

1. False Accusation

   False accusations can occur due to misunderstandings, grudges, or as an indirect means to further one’s gain. If there is a lack of evidence to support the accusation, including inconsistencies in witness statements, alibis for the accused, lack of medical evidence and there is some ulterior motive on top of these, it may be proven as a false accusation. Ulterior motives may include the intention to get a colleague fired and get promoted in their stead, to extract hush money against the threat of their reputation being ruined, to get someone punished for some other act that was emotionally hurtful but not illegal, to discredit an opposing party in a competition etc.
   
   

2. Consent

   A key element of sexual harassment is the lack of consent. Sometimes, it happens that the complainant had given consent to sexual activity but later changed their mind, regretted their decision or simply had a change of mood and hence changed their stance on the matter, which also results in a case of false accusation. In such cases, if the accused can prove the act the act they are being accused of was engaged in consensually, it will not amount to sexual harassment. It should be noted that consent should be clear, voluntary, and ongoing, and should not be the result of coercion, intimidation, or unequal power dynamics.
   
   

3. Lack of Evidence

   A successful prosecution under Section 354A IPC requires sufficient evidence. The burden of proof rests with the prosecution, and if they fail to provide enough credible evidence to meet the standard of proof beyond a reasonable doubt, the court must acquit the accused. This requirement for sufficient evidence is an attempt to separate false accusations from genuine cases, to ensure that no innocent lives are ruined due to the label of being a predator, pervert etc. Examples of insufficient evidence might include contradictory witness statements, where different witnesses give conflicting accounts of the same event; the inability to trace supporting electronic communication, like messages or emails that were claimed to exist but cannot be found; absence of physical evidence, such as when there's no documentary or digital data to support facts of a meeting having taken place.
   
   

4. Context and Interpretation

   Context matters when determining if certain behaviour is sexual harassment or not. Some actions or remarks might not be intended to be offensive by the accused but were misunderstood by the complainant. Legal defences in such cases might involve showing that the context did not have sexual overtones, or that the accused did not intend any harm. This can be supported by showing how others perceived the same behaviour. For example, in a social event, lots of people hug or pat on the back as a greeting or show of affection and this is not normally seen as sexual harassment, although the same hug may be considered inappropriate in another setting.

An experienced criminal lawyer can make a huge difference here. They can help gather and analyse the evidence that what may be favourable and not. They can help present a different side of a story in a manner that others can empathise with. They can provide strategies on which defences may be applicable or how to counter these when used. They can help interpret other laws and cases in their client’s favour. Cases of sexual harassment often suffer from the non-availability of evidence or are misguided by emotions, which is why an expert lawyer’s guidance on how to deal with these obstacles may make a huge impact on a case.
 

What to do if you are being sexually harassed? 

If you believe you have been a victim of sexual harassment, you can file a complaint with the local police or a magistrate. Such a complaint will need to be filed within three (3) years from the date of the incident you want to report. You can seek the help of a lawyer to help you with the legalities. You can also seek the support of NGOs or reach out to the Helplines listed by the National Commission for Women. They can even provide you with mental and emotional support if you do not have family or friends to stand by your side.

If you wish to get justice for yourself or ensure the offender learns a lesson, the following are the steps you can or should take:

1. Gather Evidence

   Gather any evidence that corroborates your experience. This can include:
   • Text messages, emails, or other digital communications.
   • Photographs, video, or audio recordings.
   • Witness statements from people who saw or heard the incident.
   • Any physical evidence, such as damaged clothing or personal belongings.
     
     

2. Seek legal advice or assistance

   In this digital age, you may not even need to meet up with a lawyer in person if you have difficulty doing so. You can consult experienced criminal lawyers over the phone or via video conference depending on your need and their availability. If you are in Kolkata, an experienced criminal lawyer from Kolkata can help you in the following ways:
   • Whether the section of 354A IPC applies to your case or not.
     While applying a section to your complaint to the police is not necessary, it is recommended. It helps the police to get a clear picture of what has happened and quickly decide what needs to be done.
   • If any other sections or laws are applicable.
     For example, if the sexual harassment you were subjected to was in addition to blackmail for money or if the POSH Act [Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013].
   • Help you gather and analyse the evidence.
   • Guide you through the process of the police complaint.
     A lawyer can help you understand your rights, ensure your rights are protected, advise you on what to expect during the investigation, and advise you if there are any discrepancies in the investigation procedure.
     
     

3. First Information Report (FIR)

   Visit your nearest police station to get a First Information Report (FIR) registered. This is the first step in formally reporting the incident to law enforcement. When filing an FIR:
   • Clearly describe the incident, including what happened, when, and where it occurred.
   • Provide the names of any witnesses or other people involved.
   • Submit any evidence you've collected.
   • Request a copy of the FIR for your records.
     A lawyer can ensure the complaint and evidence being submitted by you is not missing any important aspect.
     
     

4. Follow Up with the Police

   Follow up with the police to ensure that your complaint is being properly investigated. After submitting your complaint, if the police refuse to register the FIR, or if there are delays or a lack of progress after registering the FIR, your lawyer can help you take appropriate action, such as filing an application before a magistrate who can direct the police to do their duty.
   
   

Reporting sexual harassment is a courageous step, even though the process can be challenging and the outcome uncertain. Even if a complaint doesn't result in a conviction, it can raise awareness about sexual harassment and encourage others to speak up. When you report sexual harassment, it sends a message that such behaviour will not be tolerated. This in turn may help a victim regain their confidence and feel their dignity. It also helps to create a record of incidents, which could be valuable in case of repeated offenders. Ultimately, every report, successful or not, plays a role in driving societal change and reducing the stigma around sexual harassment. In a society striving for equality and justice, every step taken against sexual harassment, whether it's filing a complaint or supporting someone who has, contributes to creating a safer, more respectful environment for everyone.

FAQS

1. Can I report sexual harassment anonymously?

   Generally, sexual harassment complaints require your identity for legal proceedings, but some helplines and NGOs offer anonymous reporting options to discuss the incident before filing a formal complaint.
   
   

2. How long does it take to investigate a sexual harassment complaint?

   The duration of an investigation varies depending on factors like the complexity of the case, the availability of evidence, and the responsiveness of law enforcement. Some cases can be resolved quickly, while others may take several months. Your lawyer can give you a clearer idea of timelines based on your specific case.
   
   

3. Can I withdraw my complaint after filing it?

   While it's possible to withdraw a complaint, it's best to consult with a lawyer before making this decision, as withdrawing a complaint may send mixed signals to law enforcement and could affect your credibility.
   
   

4. Can I file a complaint if I am not the victim but have witnessed sexual harassment?

   Yes, you can file a complaint if you have witnessed sexual harassment, even if you are not the direct victim. However, keep in mind that the complaint will not be fruitful if the victim denies such a claim.
   
   

5. What is the difference between Section 354A IPC and Section 509 IPC?

   Section 354A IPC addresses a broader spectrum of sexual harassment, including physical contact, sexual advances, and inappropriate remarks, with harsher penalties for more severe offences. Section 509 IPC is more specific, focusing on acts that insult the modesty of a woman, often through verbal or gestural means, which may not be sexually coloured and carry relatively lighter penalties.
   
   

6. How does Section 354A IPC differ from the provisions of the POSH Act?

   The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, focuses on only workplace harassment and offers a civil remedy, as opposed to Section 354A of the Indian Penal Code that deals with sexual harassment in any environment and provides criminal remedy.