Authored by Pujita Makani
From whistling to catcalling women in India are no strangers to lewd comments. For something that is a widespread and commonly shared problem why is it best left ignored? “Men being men” is often the standard reason when she walks away from the suggestive remarks with her head bowed and eyes trained to her feet. What else would one do? A legal recourse would be her safest bet but for now, that option also seems to disappoint.
The Nearly Absent Laws
The law seems to have different ways in which a problem is dealt with. Some are pre-emptive measures and some stem from a certain incident that triggered the need for specific legislation. The law regarding eve-teasing is one such problem that seems to have a very poor standing in the Indian context. This problem is perpetually brewing but no specific law has been implemented to address the issue. The state of Tamil Nadu is the only state that has passed the Tamil Nadu Prohibition of Eve-Teasing Act, 1998 (later referred as the Tamil Nadu Prohibition of Harassment of Woman (Amendment) Act, 2002).
Section 4 of the aforementioned Act defines ‘Harassment’ as “any indecent conduct or act by a man which causes or is likely to cause intimidation, fear, shame or embarrassment, including abusing or causing hurt or nuisance or assault or use of force”. However, the question is why this legislation is restricted only to Tamil Nadu. Aren’t all women subjected to this whether in the streets of Chennai or Delhi?
It is noted by the Supreme Court that due to the lack of effective legislation for the specific kind of harassment, i.e eve-teasing, it is often put under the purview of Sections 294 and 509 of the Indian Penal Code. However these legislations have no teeth.
Section 294 stipulates that the maximum period of imprisonment extends to three months if the accused is convicted for doing any obscene act in public or sings, recites, utters any obscene song, ballad or words in any public place to the annoyance of others. The key term here is ‘obscene’; the standard is set so that instances of jeers and whistles are side-lined.
Other problems that arise are that is it very difficult for the prosecutor to prove these instances that come within the ambit of ‘obscene’. Secondly, regarding the scope of ‘annoyance of others’- is it only with respect to more than two people or can only one other person raise a voice against it? Additionally, it is interesting to question whether on walking away the victim waives the possibility of seeking relief. This question arises as the section stipulates that there must be ‘annoyance’ experienced by the victim.
Section 509 of the IPC has a higher punishment compared to the previous section, with a maximum term of three years. The section reads as follows:
“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 three years, or with fine, or with both.”
From a preliminary reading of this section you probably have a lot of questions. How do you determine intention? What kind of acts amount to an insult to the ‘modesty’ of a woman? Why is it restricted to women? Aren’t the LGBT community also prime subjects to eve-teasing? For now let’s restrict this discussion to just the first two questions.
Intention is always a tricky element to prove. It is determined and inferred according to the facts of the case, and the state of mind of a reasonable man. However the burden of proof lies on the prosecution which, more often than not, is always left frustrated. There is no mechanism in place that monitors the cases filed, and many of these complaints are withdrawn due to the inconveniences caused.
Modesty is determined by an objective test. Whether a reasonable woman’s sense of decency would be outraged by a certain act is a question that is pertinent. The courts have suggested that the idea of modesty does not depend or change based on the age of the victim. Additionally there can be no universal application of a standard rule to determine ‘modesty’; it certainly varies depending on factors such as the country, society etc.. However, slapping the posterior of a woman was held to outrage the modesty of a woman, abuses like "randi, chedeydi and zavane" were also held to be in violation of the same. Whistling should also come within the purview of this section although the ability to police the same and bring out evidence would be highly problematic.
Eve-teasing is obviously a matter that should not be tolerated. Is it better to have a legislation that falsely assures the victim of sturdy safety nets devoid of error? Or is it crucial to address the toothless laws and reform them? Given that Tamil Nadu has taken a step towards a possible solution, following the footsteps of Tamil Nadu in specifically targeting this problem is long over due. However it is not only upon the legislation but there is a certain level of dependence on society to change its attitude. Inculcating and honing values along with respect towards each other are vital.