Defining and Penalizing the Offence of Eve Teasing

by Razzak Raza
June 4, 2010

http://www.weeklyblitz.net/769/defining-and-penalizing-the-offence-of-eve-teasing

When Thomas Babington Macaulay and his colleagues submitted the draft of Indian Penal Code to the Governor-General in Council on October 14, 1837, the term sexual harassment was not even coined. Actually, sexual harassment was not a suitable point of discussion in the following hundred and a half-year even in the western world. In a report to the then President and Chancellor of the Massachusetts Institute of Technology (MIT) of the USA, Dr Mary Rowe used the term 'sexual harassment' in 1973 about various forms of gender issues. In the Indian sub-continent including Bangladesh, the harassment of women by a section of males, particularly by the uncouth young boys, came to the point of discussion a little bit before. In 1960s the newspapers in India took up the issue and made important stories.

In the Indian subcontinent, sexual harassment put on a jacket of eulogy from the very beginning. The term 'sex' connotes vulgar to the oriental people, even today. The Indian people found the term 'Eve Teasing' to substitute the erotic term sexual harassment. Eve is believed to be the first woman created by the Almighty and all women are the descendants of her and thus generically could be called Eve. So, teasing a woman is called 'eve teasing'. The other explanation is that the biblical Mother Eve enticed the biblical Father Adam to share and eat the God-forbidden fruit of the heaven. The origin of man in the earth is nothing but the repentance of the sin by the first couple Adam and Eve acquired by eating the forbidden fruit. Eve, by nature is an enticing character and men just fell into her enticement. This explanation remits the offence of men and attributes the liabilities to women. But, whatever may the origin of the term be, it is widely circulated and even accepted in the Indian subcontinent during the 1960s. In the United States of America the Civil Rights Act of 1964 prohibited indiscrimination in employment based on sex. But the term sexual harassment was defined in 1980 in the regulation issued by the Equal Employment Opportunity Commission.

Although, the term 'sexual harassment' or 'eve-teasing' was unknown to Lord Macaulay and his colleagues, it is not that they did not try to address the harassment of the Indian women. They were, in fact, very much aware of the sufferings of the most suffered section of population of the British dominion. Except the sections relating to the rape and its punishment, the whole Chapter-20 (section 493-498), titled, 'Of Offences Relating to Marriage' was allocated for the causes of women. While incorporating these sections Macaulay and his commissioners felt the sufferings of the Indian women who were, actually, the slaves of the slaves. Besides these, there are some other sections to address the annoyances, assaults and violating the modesty of women.

The draft Penal Code was passed in the Legislative Council on October 6, 1860, after some 23 years of its submission to the Governor General. Though, neither sexual harassment, nor eve teasing was used in the Indian Penal Code of 1860, it addressed the sexual offences with due importance. If one goes through the Penal Code, one will find that offences having sexual connotation are addressed in three different phases. Rape is addressed under the headline of 'Sexual Offences'. To constitute the offence of rape physical contract of the offender to the victim is a must. It also needs penetration. However, though penetration is necessary to constitute the offence of rape, ejaculation is not a sine qua non for that. The Penal Code under section 376 punishes the offender with a maximum term of rigorous life imprisonment.

The non-penetration sexual assault, under the section 354 of the Penal Code, is punishable with a maximum term of two years imprisonment of either description, or with fine, or with both. Macaulay and his colleagues categorized this offence as 'criminal force and assault'. The last category of sexual offence is the non-contact sexual insult wihic is punishable with a maximum term of one-year simple imprisonment, or with fine or with both under the section 509 of the Penal Code. But the framers of the Indian Penal Code did not address it to be sexual offence. It was seen as an offence of the kind 'of criminal intimidation, insult and annoyance'. Section 294 incorporated in the chapter, 'offences affecting the public health', is applicable for both female and male that punishes the offender with imprisonment of either description for a maximum term of three months, or with fine, or with both. This section penalizes obscene acts and songs, which cause annoyance to the peace loving people. However, though well thought for the colonial India, all these sections, claiming non-contract insult, seem to reward too meager punishment to the offender.

The Indian Penal Code is, even today, the basis of subjective criminal laws in the subcontinent including Bangladesh. After the departure of the British Raj from this subcontinent, the independent India and Pakistan and subsequently Bangladesh, made few amendments in the Indian Penal Code in line with their respective country's demands. Numerous laws and by-laws have already been enacted defining and penalizing newly-arose unwelcome human behaviors, and, the process is still on, but the Macaulay framed Indian Penal Code still guides the jurisprudence of this subcontinent.

It has already been referred that though the Indian Penal Code did not incorporated the term 'eve teasing' or 'sexual harassment', it tried to address the offence in various sections. But these penal sections sometimes prove insufficient to punish the culprit who performs not as like as the things had been in some two hundred years ago. So, there were positive efforts to address offences against women, including sexual harassment, separately and more definitely.

As eve teasing showed it unholy face publicly in India as early as in1960s. The Indian states took the first initiatives to amend the penal code or frame new laws defining the term more accurately and allocating appropriate punishment for it. The Delhi provincial parliament passed a new law 'The Delhi Prohibition of Eve-teasing Act- 1988'. This act, perhaps for the first time, defined the term 'eve teasing' explicitly in the Indian Sub-continental context. The state of Tamil Nadu amended the Indian Penal Code by making the offence non-bail able and also enacted new law in 1998. Most of the Indian states showed utmost efforts to curb the eve teasing offence. Even some states have been planning to amend their laws making eve teasing more stringently punishable than actually molesting a woman.

In post-independent Bangladesh the Dhaka Metropolitan Police Ordinance (DMPO) of 1976 first addressed the women teasing directly. Section 76 of the ordinance defines women teasing as, "willful and indecent exposure of ones person in any street or public place within sight of, and in such manner as may be seen by, any woman, whether from within any house or building or not, or willful pressing or obstructing any woman in a street or public place or insulting or annoying any woman by using indecent language or making indecent sounds, gestures, or remarks in any street or public place". Women-teasing is punishable with a maximum one year of imprisonment, or with a maximum two thousand Taka fine, or with both.

This is for the first time, in Bangladesh, an act other than the Penal Code addressed the teasing offence against women. However, the term 'eve teasing' is still not used. Likewise, the other five metropolitan police acts/ordinances made similar provisions to penalize the offence of teasing women. However, these acts have no jurisdiction outside their respective metropolitan areas that makes the offence exclusively a local and urban phenomenon. Special laws penalizing the offence of teasing women having nationwide jurisdiction was yet to be passed.

In 2000 the government enacted tougher law to protect the vulnerable women and children of the country from various typical offences. The Prevention of Women and Children Act-2000 came down heavily on the oppressors of the women. This act, inter alia, defined the now-much-talked-about sexual torture and sexual harassment.

In section 10(1), the law defines sexual torture as, " if a man touches the sexual organ or any other organ of a woman or of a child by any of his organs or by any other objects with a view to fulfilling his illegal sexual desire, such act of the man will be termed as sexual torture". This definition, in fact, includes the attempt of rape or outraging the modesty of a woman by actual physical contract. The law punishes the offender with rigorous imprisonment of minimum 3 and maximum 10 years and also an indefinite amount of fine.

In section 10(2), the law defines sexual harassment as, "if a man, with a view to fulfilling his illegal sexual desire outrage a woman's modesty or makes erotic gesture, such act of the man will amount to sexual harassment". A rigorous imprisonment ranging from 2 to 7 years and additionally an indefinite amount of fine is rewarded for this offence. According to this definition sexual harassment is an offence that is committed by not coming with actual physical contract to the victim.

However, the section 10(2) was abrogated when the law was last amended in 2003. A new provision has been added under section 9(ka) of the present law that states, if a woman is forced to commit suicide as a direct consequence of somebody's willful dishonor/sexual harassment/assault, then the offender will be liable to a maximum of ten years and a minimum of five years of imprisonment. The amendment actually denied the remedy of sexual harassment of non-contract nature. The new provision though punishes the offender, it will not happen until the victim is dead. A legal ridicule, indeed!

After the amendment of The Prevention of Women and Children Act-2000 in 2003, there remained no legal provisions in the country addressing directly the problem of sexual harassment. But, newspapers bring out heart rendering reports on sexual harassment every now and then. At this backdrop Bangladesh National Women Lawyers Association (BNWLA) filed a Writ Petition (No. 5916 of 2008) to the High Court Division. The Honorable Court, after examining the pros and cons of the problem issued their Judgment on 14.5.2009 giving the government an eleven-points directive which will fill up the legislative vacuum in the nature of law. In these directives the Court suggested a detailed definition of sexual harassment that included all other existing definitions of non-contract sexually connoting offences. It also incorporated the modern means of erotic insults against the women that are prevalent in our present age of information technology. However, though the ingredients of the offence of eve teasing are easily distinguishable from the order, the court did not use the term eve teasing. Actually, eve teasing, though commonly used and popularly understood a term in Bangladesh, it remains outside the explicit legal definition.

It is known that the government has already started the process of fulfilling the directives of the judgment. Complaint Committees have been formed in many institutions according to the decretive no-9 of the judgment. But framing appropriate law to combat the ever-growing eve teasing is yet to be done. Committees are being formed in the institutions to protect the women attached to the institutions and punishment will be imposed on the persons inside the institutions, but the street Romeos, who commit their offence outside the institutions are still remain out side expected legal net. So, the enactment of an appropriate law to address sexual harassment to cover the whole gamut of the problem is an unavoidable urgency.

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