While we persistently ask why women do not file complaints against their alleged sexual harassers in court, The Quint spoke to legal experts to understand the process of taking the matter to a criminal court.
Right from expressing the experience of sexual harassment, filing the complaint, to the verdict in court, here’s what goes down at every stage.
Even Before The Complaint, Threat of Defamation
“First thing that happens is when a woman speaks up. You may have a defamation case or a legal notice sent to the survivor by the accused, even before she files a complaint at the police station,” Supreme Court advocate Karuna Nundy told The Quint.
This has been observed in light of the #MeToo movement, where scores of women have come out and spoken against their alleged harassers on social media.
Case in point: Former External Affairs Minister MJ Akbar filed a criminal defamation complaint against journalist Priya Ramani and Bollywood actor Alok Nath filed one against writer-producer Vinta Nunda.
Senior advocate Rebecca John, who is representing Ramani, explained to The Quint the initial stages of a defamation case and how it proceeds.
“There are certain cases in the Indian Penal Code which can only follow the complaint case procedure – defamation is one of them. There cannot be an FIR in a defamation case, it is barred by law. It can only follow the complaint case procedure, which is why MJ Akbar has filed a private complaint and his pre-summoning evidence is happening. We are not in the picture, Priya Ramani is not in the picture at the moment.”
After these steps, the court decides if a case is to be tried or not. “Once his evidence and that of his witnesses are recorded minus cross examination as the accused has not yet been summoned, his lawyers will have to argue that this is a fit case to summon the accused, that is Priya Ramani. If the court agrees to their submission, she will be summoned. And once she is summoned, she gets the opportunity to cross examine and bring her own evidence,” John added.
Taking the Legal Route, Filing a Complaint
Very often when a complainant goes to file a sexual harassment case with the police, it is not taken seriously, experts told The Quint. “The police do not want to deal with it as they have so much more happening. Or you have situations where the officer will say they will do it but delay it. Or he can't be bothered about it, or there is bribery/ inducement from the other side. There could also be pressure," Nundy said.
Adding that it is very important that the complaint filed by the complainant discloses the offence because it should be immune from quashing, Nundy said, “Make sure you word it properly, consult a lawyer.”
A way of ensuring clarity for that is by reading the ‘ingredients of the offence.’
The Police Then Registers An FIR
After a complaint is registered, the police files an FIR in the case.
“According to the 2013 Lalita Kumari judgment, if the complaint amounts to a cognisable offence, the police has to register an FIR without a preliminary inquiry. Which means they have no option but to file an FIR,” Nundy said.
All the IPC crimes which relate to sexual harassment, which include Section 354, 354A, 354B, 354C, 354D and Section 509 are cognisable offences.
The judgment reads: “Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognisable offence and no preliminary inquiry is permissible in such a situation.”
Section 166A of the IPC outlines the punishment for a public servant if he/she does not file an FIR under section 354 and 509. “If the FIR is not filed, the public servant can be punished with rigorous imprisonment for a minimum of six months and the prosecution can happen without the permission of the state government. The provision is almost never been used so far, however, we have used it at times to make sure the FIR is registered,” Nundy told The Quint.
Senior advocate Rebecca John said registering an FIR is not easy for ordinary citizens even today. “What normally happens on the ground is that you have to get senior police officials to speak to the station house officer and register the FIR. Typically, largely it is not an easy task. On the other hand I have seen FIRs registered very fast. It depends on officer vs officer," she said.
Case in point: A story covered by The Quint’s correspondent exposes how a woman who went to a Mumbai police station to register her complaint on 11 November, 2017 which translated into an FIR on 17 November after three visits and calls made to senior policemen.
The Police Investigation and Final Report
The police gets 60 days to file the charge sheet against the accused. “Both sides can assist the police with the investigation. The complainant can provide crucial details of the people she spoke to or the emails/messages sent. If Facebook was used then the police can send them a legal request for information, that they will have to comply with,” Nundy said.
When asked if the police conducts their investigation properly Nundy said, “Our police remains understaffed and so I cannot say the evidence gathering is great. Particularly for sexual harassment cases, since they have so much going on it is difficult for them to make it a priority which is very unfortunate.”
The police can file three reports, depending on the outcome of the investigation. The first is a charge sheet where they have found evidence that provides grounds to charge the alleged perpetrator under various sections of the IPC. The second is a closure report, where the police has not found evidence against the accused but leaves it on the court to decide the future course of action and the third is a cancellation report where the police has indisputable evidence to not pursue the case against the accused.
If the police files a closure report then the complainant can file a protest petition.
“This usually happens after a closure report and the judge can ask the investigating agency to furnish an additional charge sheet,” Nundy said.
Framing of Charges and Trial Commences
Once the charge sheets are submitted there are arguments from both sides after which the charges are framed. After the charges are framed the trial commences. “Whereas rape cases are often put in fast-track courts, sexual harassment cases are less of a priority.” Nundy said. While 60 days are clearly earmarked for the police to complete their investigation, the time it would take to frame charges is left open-ended.
Case in point: Tarun Tejpal, Editor of Tehelka magazine was arrested in November 2013 and charges were framed against him in September 2017.
Verdict Can Take ‘Forever’
If the accused is convicted under Section 509 ( (Word, gesture or act intended to insult the modesty of a woman) of the IPC, the accused shall be punished with simple imprisonment for a term which may extend to three years, and also with fine. For Section 354 and the four related offences, the punishment might range from one to five years, including fine.
Case in point: Senior IAS officer Rupan Deol Bajaj complained in 1988 that former Punjab director general of police, KPS Gill, touched her inappropriately at a party. Trial court convicted Gill in 1996. Supreme Court upheld the decision in 2005 but the former top cop didn’t serve any jail time
When The Quint asked Senior Advocate Rabecca John how long a sexual harassment trial would take she said, “It can take forever.” Adding that, “There are many cases in court which have been going on for 6, 7, 8 and 9 years and are nowhere near completion. Which woman wants to put her life on hold for so long,?” she said.
All This Explaining Why Women Don’t Go to Court
It is this fear of ‘forever’ that keeps women from seeking legal recourse.
Highlighting the importance of a man refuting an allegation of harassment, Rebecca John said, “As a criminal defence lawyer I completely accept the argument from the other side, which is an allegation can be made but how does the man then refute the allegation. The court system gives him an opportunity to refute the allegation. Which is equally important in a constitutional democracy like ours.”
Adding that she understands why women don’t want to move court, Nundy said “There is something wrong in the way our systems are functioning. The people who are in charge of the criminal redressal system – judiciary, executives and administration – should look at why women do not want to go to court. It is not an environment that is conducive, encourages women to complaint.”
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