My neighbor once came to me and said she was being followed by a man every day, from the bus stop to her home. He would keep saying “Hi Madam”, “You are cute Madam”, and continued this behavior even after she implored him to stop several times. She wondered something could be done about this. “Surely a person following and saying hi/hello could not be a crime?” she asked me. I dialed 100 and told the police that she was being stalked. The cops’ response: “Is the culprit still there? If not what can we do about it? If he isn’t harming her, how is it a crime? Just ask her to ignore him and he will go away.”
Stalking is a crime, but in this instance even though the letter of the law clearly spelled this out neither the victim nor the cops seemed to know that it was. As far as the police are concerned one of the following three reasons lies at the heart of their giving wrong advice/information:
1 Incompetence (genuinely not aware).
2 Laziness (don’t want the hassle).
3 Malice (have vested interest in discouraging the victim).
This article is an attempt to explain some of the laws that deal with crimes against women, especially some of the changes brought about in the law via amendments in 2013 and some advice on countering the attempts by cops to stonewall a victim trying to file a first information report (FIR).
Indian Penal Code Section 354A (1) which criminalises i) “physical contact and advances involving unwelcome and explicit sexual overtures”, ii) “a demand or request for sexual favors” iii) Showing pornography against the will of a woman and iv) “making sexually colored remarks”.
The punishment for ‘i’ to ‘iii’ is minimum zero to maximum 3 years imprisonment or the payment of a fine, or both. The punishment for ‘iv’ is maximum 1-year imprisonment or a fine or both.
What is an “unwelcome and sexual overture”?
What is unwelcome depends on the consent of the person who is being subjected to this ‘overture’. Something as simple as keeping one’s hand on a woman’s shoulder can be an unwelcome and sexual overture. However, there is nothing draconian about this. It is best to expressly ascertain and respect the personal physical boundaries set by every person.
Let us now take a step backward in the chronological scheme of the Indian Penal Code and discuss Section 354 (as opposed to 354A) which talks about assault or criminal use of force coupled with “outraging the modesty of a woman” (punishment minimum 1 year, maximum 5 years imprisonment+ mandatory fine). What constitutes the “outraging of modesty” and how is it different from, for instance, “physical contact and advances involving explicit overtures”? The act of assaulting and disrobing a woman used to be covered under Section 354, but it is now a separate crime under 354B after amendments in 2013.
Is the act of groping covered under Sections 354 or 354A?
In theory, the answer is that if there’s an “assault”, it will fall under the former, if not, it falls under the latter. The purpose of this discussion regarding the difference between the two provisions is not to confound you with complicated legalese, but to mildly digress and point out that because several provisions appear to overlap and cover the same crime, corrupt cops often try to dupe a victim and draft the FIR in a manner that it results in registration of offences that attract lesser punishment.
The first thing that you must do while filing a complaint is to ensure that the incident is recorded in as much detail as possible. Insist on recording the incident in words that best describe the matter according to you and don’t get persuaded by cops who insist on telling you what words/sentences to use. Pertinent to point out here that even if cops do have their way and record a distorted version of what happened, this can be challenged before the court.
Under Section 354B, the intentional act of assault/use of criminal force+disrobing a woman or the ‘abetment’ (enabling) of this act by someone else can lead to imprisonment of minimum 3 years and maximum 7 years, and a mandatory fine.
Another addition to the Indian Penal Code via the 2013 amendment is the offense of voyeurism. Watching, recording (photographs/video) a woman engaged in a ‘private act’ or the dissemination of such image/video(s) is punishable by imprisonment for minimum 1 year and maximum 3 years plus a mandatory fine when the offence is committed for the first time, and for a minimum 3 years and maximum 7 years for every subsequent offence. The phrase ‘private act’ includes acts where the “victim’s genitals, posterior or breasts are exposed or covered only in underwear; the victim is using a lavatory, or the victim is doing a sexual act that is not of a kind ordinarily done in public”.
Needless to add that as far as the mere act of recording is concerned, this offense gets invoked only if such recording is done without the consent of the victim and while the victim is engaged in such act in a private place where the victim has the reasonable expectation of privacy. For example, the mere act of ‘recording’ a person stripping and running on the streets is not an offense. If the victim has consented to the recording but not to the dissemination, this offense will get triggered.
Getting back to the issue of stalking. It is now a criminal offense, defined as the act of following a woman and contacting her, or attempting to, to initiate a personal interaction despite a clear expression of disinterest by the woman. In case there is any ambiguity over this, a woman saying “no” once is sufficiently “expressing disinterest”. Stalking is punishable by maximum imprisonment of 3 years for the first commission of the offense and maximum 5 years at every subsequent commission.
A most welcome step has been the expansion of the definition of rape to include:
i) The act of inserting the penis not only in the vagina but also in the mouth, and/or urethra of a woman.
ii) Inserting any other part of the body into the anus, urethra or vagina of a woman.
iii) Applying the mouth to the vagina, urethra or the anus of a woman.
iv) Manipulating a woman’s body in a manner to cause penetration in the anus, urethra or the vagina of the woman.
v) Compelling the woman to do any of the above acts with any other person.
The said acts are a crime only if they are done against the will or the consent of the woman. “Against the will” and “without her consent” are phrases used in the provision criminalising rape and the difference between the two is that the latter refers to situations where either consent is obtained by coercion or deceit. It is critical to note here that the absence of resistance by itself does not constitute consent. Without reproducing the letter of the law, I think it suffices to say that unless the woman expresses a firm and clear yes, please believe that consent is absent.
Shifting focus to the procedural aspects, it is critical to know that the registration of a FIR cannot be denied on grounds of ‘territorial jurisdiction’ — an excuse cops often use. They say they are helpless as the crime did not occur in their area. The truth is they are duty bound to register a case and if territorial jurisdiction is lacking, they register what is called a ‘Zero-FIR’, which is subsequently transferred to the relevant police station.
If the information about any of the aforementioned crimes (and many others such as throwing of acid) is given to the cops, their refusal to file a FIR can in fact land them in prison for a minimum period of 6 months and a maximum period of 2 years besides the payment of a mandatory fine. I often tell people that the moment cops refuse to register a FIR in any of the aforementioned cases, the first thing one should do is dial 100 and report that the police thana in question is refusing to lodge a case. You can also report the non-filing of the FIR to senior officers or to the nearest magistrate. If the victim is herself reporting the crime, the FIR must be mandatorily recorded by a woman police officer. If the victim is temporarily or permanently mentally or physically disabled, then the FIR must be recorded at the residence of the person who wants to report the offense or at a place convenient to the person. Moreover, this needs to be done in the presence of a special educator or an interpreter as the case maybe. In such cases, the process of recording the FIR must be video-graphed.
It is important to remember that the FIR need not necessarily be filed by the victim and can be filed by a bystander or any person requested to do so by the victim. The police have no business questioning the authority of the person filing the FIR. The officer writing the FIR is duty bound to read the FIR back to the complainant who must make sure that he/she has noted everything correctly. If not, then corrections must be made. Finally, the complainant is entitled to a free copy of the FIR.
The government of the day needs to do a lot more to make sure that more people are made aware of the provisions of such laws, failing which most of them will remain a dead letter.