Theme: Crimes & Violence

What is Sexual Harassment?

[Trigger Warning: This explainer contains information on physical violence, sexual violence, abuse and slurs which some readers may find disturbing.]

Sexual harassment can happen in several ways. Actions such as following a person on the streets or in any public space, peeping into their bedroom, making sexual gestures at them while they are at work or in the classroom, singing lewd songs – all of this is sexual harassment. Under the law, only a man can be punished for the crime.(( Section 354A and 354, Indian Penal Code, 1860.))

There are many ways to reach out to an authority that will help, and anyone can file a complaint on a survivor’s behalf. A survivor can file a complaint of sexual harassment, irrespective of the place where it has happened. An FIR can be filed at any police station. The fact that the crime may not have been committed in that police station’s jurisdiction has no consequence to the filing of the complaint. It is mandatory for the police to record the information provided, and then transfer it to the police station in whose area/jurisdiction the offence took place. For instance, if a crime was committed in North Delhi, the information can even be registered with a police station in South Delhi.

The law deals with four categories of sexual harassment(( Section 354A, Indian Penal Code, 1860.)):

The punishment for inappropriately touching, demanding or requesting sexual favours and making sexual coloured remarks is jail time up to three years with a fine. For showing pornography, the jail time is up to one year along with a fine.1

Recourse against the Perpetrator

A survivor can go to the police and file an FIR after which the police will investigate and file charges before the court. The court will then decide whether the person is guilty or not. If the person is found to be guilty, they will be fined and punished with jail time depending on the kind of crime committed.

To explore more on complaining against the perpetrator, you can read our explainer on ‘How do you complain against sexual crimes’.

When a child has been harassed

If a child (below the age of 18) has been sexually harassed by anyone, including someone they know, relatives, friends, etc., anyone including the parents or teachers can report the crime on behalf of the child. It is illegal to not report the crime and a person can face criminal consequences for knowing about the crime and not reporting it.(( Juvenile Justice Act (Care and Protection of Children), 2015; The Protection of Children from Sexual Offences (POCSO) Act, 2012.)) To explore more on sexual abuse against children, you can read our explainer on Sexual Abuse of Children.

  1. Section 354A (2) and (3), Indian Penal Code, 1860. [↩]

Love and Relationships for LGBTQ+

Anyone above the age of 18, has the right to love and have consensual sexual relationships with anyone that they wish to(( Shafin Jahan v. Asokan K.M. and Ors. (2018)16 SCC 368; Navtej Singh Johar and Ors. v. Union of India (UOI) and Ors. (2018)10 SCC 1; National Legal Services Authority v. Union of India (UOI) and Ors.  (2014)5SCC438.)) irrespective of their gender. Previously, consensual sexual acts between adults of the same gender were punishable under the law with jail time and a fine.(( Section 377, Indian Penal Code, 1860.)) After 2018, such sexual acts are not punishable anymore under Indian law.(( Navtej Singh Johar and Ors. v. Union of India (UOI) and Ors. (2018)10 SCC 1.))

No one can harass you, hurt you, complain to the police and you cannot be sent to jail or face harassment or violence for:

Your sexual orientation

This means that you cannot face any violence being sexually attracted to a person of any gender, including that of the same gender or a transgender person. You can:

  • Be in a relationship and love a partner of any gender.
  • Have consensual sexual intercourse with a partner of any gender.
  • Move freely in any public space with your partner without any fear.

Your gender Identity

You also have a right to identify which gender you wish to be identified with. After 2014(( National Legal Services Authority v. Union of India (UOI) and Ors., (2014) 5 SCC 438.)), Courts have held that apart from “male”and “female”, you also have the right to identify and recognize yourself under the category of “third gender” (transgender).  As per the law, you don’t have to undergo Gender Affirmative Therapy to fall under the category of third gender. For instance, if you were born in a female body but feel that you actually identify with being a male then you can choose to identify with this gender.

To identify yourself under the 3 categories, you can change your name and get identification documents which denote the gender you want to be identified with.

You should file a complaint against anyone who harasses you as it is your right to live your life without any interference from the police, your parents etc. or any other person.

What is a Shared Household ?

[Trigger Warning: The following content contains information on domestic violence which some readers may find disturbing.]

You live in a shared household with your harasser if you:

Have lived with the harasser 

In order to seek protection and relief, you must live, or have lived at some point of time, with your harasser in the household. However, it is not necessary that you are residing with your husband at the time of filing a complaint for domestic violence(( Sejal Dharmesh Ved v. The State of Maharashtra and Ors 2014 ALL MR (Cri) 636; Rupali Devi v. State of Uttar Pradesh & Ors.  (2019) 5 SCC 384.)), or that you are residing with him when the violence took place.(( Lalita Toppo v. State of Jharkhand & Anr.  2018 (4) RCR (Criminal) 976.)) You just need to have shared a household with the harasser at some point of time.

Have a domestic relationship with the harasser

In order to seek relief and protection from domestic violence, you need to have a domestic relationship with your abuser, in addition to having a shared household with them. For example, if you have lived with your mother-in-law in the same house, and you are being subjected to domestic violence, you can seek relief and protection, as it means that you had a domestic relationship with the harasser and lived with her in a shared household.

However, if you have merely lived in a shared household, but did not share a domestic relationship with the harasser, you cannot file a complaint against domestic violence. For example, if you have a servant who resides in your house, and he beats you up, you cannot file a complaint under this law against him, as you do not have a domestic relationship with him.

Have/do not have a legal share in the house

To claim relief and protection, it does not matter if you have a legal share in the house. This household can be owned/leased by either you, the harasser , or the both of you, and also includes households that belong to the joint family of which the harasser is a part, even if you do not have a legal right in it.

However, if the property is the exclusive, personal property of the parents-in-law, or any other relative of the harasser, you do not have a right to claim any share in that house, as that is not a shared household.(( S.R. Batra v. Taruna Batra (2007) 3 SCC 169.))  However, the Court will ultimately decide whether or not to allow you to reside in a particular house according to the facts of the case, so you may be allowed to reside in a house owned by your mother-in-law in some cases.  See here for more details on residence orders.

Please note that it is not necessary that the violence has taken place only in the house where you reside; it can take place anywhere.

Some states provide handbooks for ASHA workers where you can find more information on forms on violence, where it can happen and how to file a complaint to seek protection against domestic violence. For example, see this handbook published for ASHA in Chattisgarh, Delhi, Jharkhand, Madhya Pradesh and Uttarakhand.

What are prenatal diagnostic procedures?

Prenatal diagnostic procedures include any gynaecological, obstetrical or medical procedures such as ultrasonography, taking or removing samples of amniotic fluid, blood or any other tissue or fluid of a person, in order to conduct any prenatal diagnostic tests for sex selection, before or after conception.(( Section 2(i), Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994.))

The purpose of these procedures is to obtain material to conduct prenatal diagnostic tests to increase the chances of getting an embryo of a particular sex.

Types of Theft

Theft is not just a crime if personal items are stolen. Many other forms of theft are there and the law punishes people who commit theft based on the situation as well as depending on who they are. Some examples of the different types of theft are given below:

Acts considered as Ragging

Many actions taken by students are considered to be ragging under the law. Some of the acts considered as ragging are:(( Section 3, the UGC Regulations On Curbing The Menace Of Ragging In Higher Educational Institutions, 2009.))

Psychological Harm 

Causing psychological harm to a student is considered to be ragging under the law. This may include:

  • Any written, verbal or behavioural actions by a student including teasing a student, speaking rudely, etc. For example, calling a student derogatory names.
  • Rowdy or undisciplined behaviour which may annoy the student, cause hardship or psychological harm to any student. For example, stealing and throwing away the notebooks that belong to a student or threatening a student constantly.
  • Asking a student to do an act which he would not ordinarily do. Such incidents may cause a sense of shame, torment or embarrassment to the student thereby affecting his psychological wellbeing. For example, making a student dance in front of the class.
  • Any act that affects the mental health and self-confidence of any student. For example, making a student dance in front of the class and ridiculing him for it.
  • An act or abuse, whether written, verbal or online (emails, posts, etc.), which would result in making a student uncomfortable. For example, spreading rumours on online platforms about a student or ragging for the sake of deriving pleasure out of it.

Disturbing Academic Activity 

Ragging can take the form of disturbing a student’s academics. If any student prevents, disrupts or disturbs the regular academic activity of  another student, it is ragging. For example, a senior student harassing a junior student into not attending classes.

Using or Exploiting a Student

Ragging can take the form of exploitation of another student. This includes:

  • Exploiting the services of any student for completing the academic tasks assigned to an individual/group. For example, making a student do some other student’s homework assignments.
  • Financial extortion or forceful expenditure put on any student.  For example, making a student pay for another student’s expenses.

Physical Abuse 

Ragging can take the form of physical abuse and violence. Ragging includes:

  • Rowdy behaviour or indiscipline which is likely to cause physical harm  to any student, or any act which makes one fearful/apprehensive of physical harm. For example, threatening to beat up a student.
  • Asking a student to do an act which he would not ordinarily do, and which causes him a sense of shame, torment or embarrassment so as to adversely affect his physical well-being. For example, beating up a student because he did not comply with the orders of a senior to perform a task.
  • Sexual abuse, including assaults, stripping, forcing obscene and lewd acts or gestures, etc. For example, asking a female student to strip.
  • Any act which causes bodily harm or any other danger to a student. For example, mixing laxatives in a student’s food.

Discriminating against Another Student

Ragging can take the form of discrimination and prejudice against another student. Any abuse based on the colour of your skin, race, religion, caste, ethnicity, gender, sexual orientation, appearance, nationality, regional origins, linguistic identity, place of birth, place of residence or economic background, is considered as ragging. For example, if a student is constantly teased and called names based on her regional origins, or is ridiculed because she belongs to a lower socioeconomic status than other students, it can be considered as ragging.

The intent behind ragging does not matter. For example, to derive pleasure, for fun, to show off authority or superiority – the very act of ragging is a crime under Indian law.

If you are being ragged, you can complain to college authorities or the police.

Who does the law protect?

[Trigger Warning: The following content contains information on physical violence which some readers may find disturbing.] 

The law on acid attack protects all persons, regardless of their gender. Further, there are no specifications in the law in terms of the age of the survivor. Therefore, an acid attack, whether carried out on a person of any age is punishable under the law.(( Sections 326A and 326B, Indian Penal Code, 1860.)) The law also protects foreigners who are survivors of acid attack if it happens in India.(( Section 2, Indian Penal Code, 1860.))

Consent to Have Sex

Trigger Warning: The following content contains information on sexual and physical violence which some readers may find disturbing.

No. The law does not recognize a child’s ability to give consent to have sex. This means that if an adult (above the age of 18) asks a child (below 18 years) to engage in any kind of sexual activity, and the child says yes explicitly or implies that they consent, this activity will still be considered as child sexual abuse or rape under the law.(( Independent Thought v. Union of India and Another (2017) 10 SCC 800.))

Consent Between Children

If two children engage in sexual activities willingly, it is still considered illegal. The age of consent for girls and boys is 18 years.(( Section 2(d), The Protection of Children from Sexual Offences Act, 2012; Independent Thought v Union of India and Another (2017) 10 SCC 800.)) Read more information in our explainer “Children Accused of Crimes”.

What is Consent?

Consent is voluntary, clear and unmistakable agreement by a person who expresses their willingness to take part in a specific sexual act. A woman should understand what she is agreeing to and what the consequences will be if she agrees to the sexual activity . Even if she doesn’t physically resist the act of penetration, this does not automatically mean that she has consented to the sexual activity.(( Explanation 2, Section 375, Indian Penal Code, 1860.))

Under the following circumstances, a man is said to commit rape even if the woman has given her consent:

  • If her consent has been forcibly obtained by threatening to hurt her or making her fear for her life or the lives of her dear ones.
  • If the man knows that he is not a woman’s husband, and that she has given her consent only because she thinks that the man is her husband.
  • If the woman is unable to understand the nature and consequences of the act to which she gives consent, due to unsoundness of mind or intoxication or because the man has given her an unwholesome substance.
  • If the woman is under eighteen years of age.