Dy. Inspector General Of Police & Anr Vs. S. Samuthiram, 2012: Case Review
Eve-teasing is a term that is quite in the Asian continents than in other parts of the world. It’s recognized as a form of annoyance to the person who experiences it. The term as such connotes sexual harassment in public places such as streets, public transportation, beaches and cinema halls, where it wouldn’t be appropriate for a person to perpetrate such activities. It is a euphemistic expression that has been used in post-colonial India, constituting women as eves, temptresses, who provoke men into such titillations. This popular perception of women as objects deserved to be teased has grown into a large problem with throwing lewd remarks on a person’s outlook to outright groping.
There is no uniform law in the country that limits eve-teasing effectively. Its effects are however limited, with a tad bit of effort from the public side. The consequences that arise out eve-teasing incidents that are not curbed are not any less than, disastrous. In Tamil Nadu, eve-teasing led to the death of a woman in 1998, which prompted the state government of TN to take action. This leads us to the case that has to be reviewed. Though, TN government took an action to curb eve-teasing in the state. There occurred a very strange situation in this case, where a person representing the law enforcement agency, eve-teased a married woman.
Briefly summarizing the facts of the case, the respondent was on duty at the armed reserve, Palayamkottai for the courtallam season at 8:30 P. M. he went to Tenkasi bus stand at 11 P. M in a drunken state. Moreover, he also misbehaved and eve-teased a married lady who was standing in the Tenkasi bus stop along with her husband. The respondent made inordinate demands to the husband, such as asking the lady to accompany him. Further, he disclosed his identity as a policeman. Both husband and wife, were panicked by the incident and complained to the nearest police station in Tenkasi; specifically, to the head constables, Mr. Adiyodi and Mr. Peter. They were on night duty at the bus stand and took custody of the respondent. Following which, a complaint was filed under section 509 of the Indian Penal Code and under Section 4 of the Tamil Nadu Prohibition of Eve-Teasing Act, 1998. The respondent was also taken to the government hospital for a medical examination of his condition. It was reported by Dr. N. Rajendran that the respondent was drunk, but he was completely under its influence.
The first stage of the case was the departmental proceedings undertake by Deputy Superintendent of Police, Armed Reserve Tirunelveli. They examined ten witnesses and fourteen documents on the petitioner’s side and two witnesses on the defendant’s side. All charges of eve-teasing and off duty were proved against the respondent beyond reasonable doubt.
A criminal case was also registered in the High Court at the same time by the Tenkasi police station. The prosecution witnesses, husband and wife turned hostile and the more important witnesses were not heard. The High Court delivered its decision under these circumstances. That there was no evidence to accuse the respondent-accused and he was not guilty under section 509 of IPC read with section 4 of The Eve-Teasing Act, and was acquitted.
Analysis of the decision of Supreme Court
This decision was challenged in the Supreme Court and it was found that the departmental proceedings were going alongside the criminal proceedings in the court. However, even before the acquittal was passed, the respondent was dismissed from his post due to the departmental proceedings against him. The Supreme Court analyzed the question of whether the findings of the criminal court will affect the dismissal of the respondent by way of the departmental proceedings.
Effect of criminal proceedinsg on departmental proceedings
A series of cases are analyzed in this regard. In Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. & Anr. , the Judiciary has laid down certain judicial formula to go ahead with such cases. The second point summarized by Saghir Ahamed J gives an upper hand to criminal court proceedings, if the case is based on identical and similar set of facts and if it involves a complex matrix of questions of law and fact, the departmental proceedings can stay while the court decides. The court also clarifies that to find the nature of the charge in a criminal case that is considered as grave and to decide if it involves a complicated set of questions on facts and the law, one should take resort to the nature of the case, nature of the offence and on the basis of evidence and material collected or as reflected in the charge sheet.
In Southern Railway Officers Association v. Union of India (2009) and State Bank of Hyderabad v. P. Kata Rao (2008), similar questions of effect of criminal proceedings in departmental enquiry were answered. Both the cases held the same view that, “acquittal in a criminal case by itself cannot be a ground for interfering with an order of punishment imposed by the disciplinary authority” and that “criminal proceedings itself, would not debar the disciplinary authority from initiating a fresh departmental proceeding, or where it has already been initiated, to continue therewith. ” In a later judgement in the case of Karnataka State Road Transport Corporation v. M. G Vittal Rao (2012), after making a similar run through of all previous decisions made an important observation that, “disciplinary authority imposing the punishment of dismissal from service cannot be, by itself held disproportionate or non-commensurate to the delinquency. ” In the view of the above situation and the position of law, the SC decides that the decision of the HC was seriously flawed and the respondent could not have been honorably acquitted but for the prosecution witness turning hostile and the other prosecution witnesses not being examined.
The court goes into the details of “honorable acquittal”. The court initially looked into this term in the case of Management of Reserve Bank of India, New Delhi v. Bhopal Singh Panchal (1994), and held that “mere acquittal cannot reinstate an employee into service, it should be honorable” and that “honorable acquittal, acquitted of blame or fully exonerated” are unknown to the Code of Criminal Procedure or the Penal Code. These are judicial formulae that the court applies to decide the results more objectively. It is difficult to define the term, “honorably acquitted”. In R. K Kapoor v. Union of India (1964), it was held that “departmental proceedings will follow even if the accused is acquitted except for cases of honorable acquittal. ” In State of Assam & Anr v. Raghava Gopalachari (1972), the SC approved the views of William J (1934) on honorable acquittal. In brief, he says that the bench accepted the views and explanations of the appellant and also decided that the appellant has not misappropriated the monies referred to in the charge and so he was acquitted completely. He also adds that this is presumable “honorable acquittal” for the government authorities.
In a criminal proceeding, the accused might be acquitted for technical reasons of law or other witnesses could not give their evidences as few witnesses turned hostile. In this case, the latter position was observed and acquittal was possible. However, the SC rejects this to be one of “honorable acquittal”. Even if it were one, there could not be any reinstatement of services, because the Tamil Nadu Service Rules do not provide so. Sometimes, the reinstatement can also be automatic, if the service rules provide temporary suspension of employee and further reinstatement upon acquittal.
In the view of the above discussion, the SC was of the view that the HC was wrong in setting aside the punishment imposed in the departmental proceedings, keeping in mind the limited jurisdiction under Article 226 of the Constitution of India.
The court considers the fact that there is no effective legislation to curb eve teasing in India and mostly people resort to section 294 or 509 of the IPC. This is also a violation of their fundamental rights as enshrine under Article 14 and 15 of the Constitution of India. Section 294 is under the offences affecting public health, safety, convenience, decency and morals and specifically deal with “Obscene acts and songs”. It is for the prosecution to prove that the act was of obscene nature and it might take years to dispose of the case, and suffering the whims of a criminal trial itself is a separate mental agony. Section 509 is under the offences concerning criminal intimidation, insult and annoyance. It addresses, “word, gesture or act intended to insult the modesty of a woman”. The burden is again on the prosecution to prove that the accused uttered those words and intended it to be heard by the woman. Normally, it becomes extremely difficult to establish this and the wrong-doers are left unpunished. The court considers the Protection of Women against Sexual Harassment in Workplace Bill, 2010, and gives some directions in order to curtail eve-teasing to some extent, as a means of urgent measure taken by the court in public interest.
Review of the law appertaining to the case
Eve-Teasing has been defined by the National Commission for Women, in its report on sexual harassment/Eve-Teasing, as “Eve-Teasing will include any person willfully and indecently exposing his person in such a manner as to be seen by other employees or use indecent language or behave indecently or in a disorderly manner in the workplace. It will also include any word, gesture or act intended to insult the modesty of the woman. By making any sound, gesture or exhibit any object intending that such a word or sound shall be heard or that such gesture or object shall be seen by such women or intrudes upon the privacy of a woman employee”.
Eve-teasing has been a perennial problem and a menace to the society. The various newspaper headlines show the serious consequences that might arise out of an unchecked eve-teasing incident- “U. P Colleges banned jeans to check eve-teasing”, “Bangalore youth trashed for eve-teasing”. This is one such case where, eve teasing occurs. However, what makes this different is the fact that a member of the law enforcement agency itself is found eve-teasing, in a drunken state, when he was expected to be on duty.
The approach of the Supreme Court is right in this case, because it could not have simply excluded the departmental proceedings and checks the righteousness of the High Court’s decision. By considering the happenings in both of them, it seems more convincing to have taken the stand with which the Supreme Court has made its decision. The High Court has indeed, made a flaw by not listening to the other prosecution witnesses, because they were of prime importance for the case. Having not listened to the important witnesses and evidences coupled with the standard of proof also being strict, the decisions have not fulfilled the standards of a criminal trial. Whereas, the departmental proceedings have assessed many witnesses and documents to find all charges against the respondent beyond reasonable doubt. They have dismissed the respondent even before the order for acquittal came out. In the light of the criminal proceedings that happened, it cannot be said that it was “honorable acquittal”. It was a mere acquittal because the acquittal was based on the hostile environment created by the husband and the wife and not due to proper evidence adduced by the parties.
As there are no effective legislations for eve-teasing, it is true that the only way to solve such problems and give appropriate punishment is by judicial pronouncements. Though, there was a bill to be passed by the legislature, which indirectly also covered the issue of eve-teasing, the primary responsibility lied on the judiciary to decide on such matters for the time being. The court also gives the state directions to deal with such issues, in view of public interest. It is extremely contrasting too see eve-teasing on the comparative pedestal between India and the USA. In the case of Vishaka v. State of Rajasthan, the SC laid some guidelines and one of which explains that, “sexual harassment includes such unwelcome sexually determined behavior, such as physical contact, a demand or request for sexual favor, sexually favored remarks, showing pornography, or any other unwelcome physical, verbal or non-verbal conduct of a social nature, for example leering, telling obscene jokes, making sexual remarks about a person’s body etc. ” The Hon’ble SC also clarified its position with respect to sexual harassment and eve-teasing in the case of Rupan Bajaj & Anr v. KPS Gill, wherein the court talks about the “modesty” of a woman. More and more girl students, women go to educational institutions and workplaces and their protection is of extreme importance to a civilized and cultured society” Whereas, in the USA, in a similar incident of eve-teasing, in the case of Burlington Industries v. Kimberly Ellerth, the SC ruled that, “the workers can still bring sexual harassment cases against employers even if the harassment is not reported and the employee’s career is never hurt. ” The US Supreme Court has given wide and a huge scope for determining the rights of individuals who are affected by eve-teasing or sexual harassment in the Workplace.
In India, the Central and the State governments have taken multiple administrative actions to curb sexual harassments inside institutions and in public places. Eve-teasing, being one that has the potential to affect the well-being of a person, both physically as well as mentally, needs effective laws or legislation to keep a check on. Prompt action of the government is required in such cases. The Indian Penal Code provides punishment for offences like rape, assault, molestation and eve-teasing. However, the terms “molestation” and “eve-teasing” are not properly defined in the IPC. Moreover, this classification of crimes into many such acts based on the degree of injury caused is not justified as they require different approaches. The need for a separate legislation to deal with the unique characteristics of these offences is well illustrated in the case of Apparel Export Promotion Council v. A. K. Chopra (Apparel Export Promotion Council case). This case, in brief, was related to a female employee of a workplace being sexually harassed by a male senior through unwelcome sexual conduct has affected her ‘modesty’. Though, the victim had been sexually harassed, the High Court could not specifically categorize the offence under any provision of the IPC, and left the victim remediless. The Court observed: “The Divisions Bench agreed with the findings of a single judge that the respondent had tried to molest and that he had not actually molested Miss X. however, he did not make any physical contact with her in the end. The court went on to hold that such an act of the respondent was not a sufficient ground for his dismissal from service”. In 1999, it was the Supreme Court that stepped in and held the respondent guilty, thereby reversing the HC’s decision. Eve-teasing is not a very recent phenomenon. It has been existing and prevalent for quite a long time. When the women of the country were able to break through the barriers of gender in educational institutions and work places, there were many protests and outrage regarding eve-teasing and unwelcome sexual conduct in such institutions. In 1987, there was a recorded protest by women against eve-teasing in Madras Law College. The opinions then were that the ‘ulterior motive’ should be deciphered and that these were the impact of ‘loose morals’ in the society.
Despite the shortcomings, it is well recognized that an effective legislation is the need of the hour for preventing and tackling issues of sexual harassment. Many scholars have advocated that sexual harassment should not just be based on gender rights, but must also be recognized as labor rights violation. Characterizing sexual harassment in this way will let trade associations and labor unions be more vigilant of such happenings and will also allow them to take direct action on perpetrators of sexual harassment such as eve-teasing. They can employ effective complaint portals or forums within their institutions. Eve-teasing is characteristically different from other forms of sexual harassment, as the most prevalent form of eve-teasing is verbal which makes it extremely difficult to prove in a court of law. It is true that recently, many institutions have adopted the practice of having an Internal Complaint Committee (ICC). This came out of the knowledge of instances that have shown that most employers took up such complaints in an ad hoc and hurried manner, which did not purport to look into the seriousness of it. Moreover, there have been many incidents’ where the members of the ICC are elected with much bias in the institution itself.
The researcher agrees to the opinion that sexual harassment conversations when merged with labor rights will give better and effective solutions to curtail such incidents at the grassroots level. Incidents of sexual harassment are closely linked to working conditions and power dynamics of such institutions. This will also diversify the role of the institutions in the life of the labor and give them more protection and safeguards to work in their institution. The problem with the Protection of Women from Sexual harassment in Workplaces Act is that it bifurcates the gender aspects and the labor aspects of the whole problem. It gives a very idealistic differentiation of the aspects of sexual harassment related purely on gender basis and those which arise in the institutions. However, it does not realize that such changes begin from the very institutions, where such sexual harassment can effectively be curtailed. This will be a stepping stone, to also change the views and perspectives of others on issues such as eve-teasing and molestation. Furthermore, given the low female representation in certain industries or educational institutions. Such effective portals or forums to curtail eve-teasing and increase participation of women in male-dominated workplaces. The case reviewed here is one such incident where, since there are no effective complaint mechanisms or preventive mechanisms employed in the workplace itself, it leads to such disastrous results. If there had been stringent and strict rules regarding this for the policeman, he would have feared the law and restricted himself from such morally loose activities.
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