This article was authored by Shravani Shendye and Nikita Bansal from NALSAR.
The #MeToo movement has brought up the issue of sexual harassment to the forefront again. The movement that exposed Harvey Weinstein and many such others in Hollywood spread to other countries and arrived in India when an Indian actress alleged that a senior veteran actor had sexually harassed her. The start of the #MeToo movement has been a catalyst in providing people a platform to voice their concerns and speak up against sexual offenders. In recent years, the issue has gained attention worldwide, especially in workplaces. Media has given a greater attention to highlight the issue among masses.
The importance of this movement is paramount and this clearly reflects in India’s crime statistics. According to NCRB’s Crime in India 2016 report, Sexual Harassment accounts for 32%, Assault on Women with Intent to Outrage Her Modesty accounts for 46%, Assault or use of criminal force with intent to Disrobe accounts for 11%, Voyeurism accounts for 1%, Stalking accounts for 8% and Insult to the Modesty of Women accounts for 7305 reported cases all India.
According to statistics related to reporting of cases, registered cases of sexual harassment at Indian workplaces increased by 54% from 2014 to 2017, according to official data. The instances of sexual harassment that women face on a daily basis, including eve-teasing, cat calling etc. are not even considered ‘grave’ enough to be reported and almost 80% cases of sexual harassment go unreported.
Under statistics related to Conviction, while the conviction rate for all crimes against women stands at a measly 19% across India (compared with an average conviction rate of 47% for all crimes).
Statistics related to cases pending at police investigation level indicate that it is not just slow court proceedings that are an issue. For Assault on Women with Intent to Outrage her Modesty, pendency percentage was 28.5% and for Insult to the Modesty of Women, the pendency percentage was 37.6%.
Statistics of cases pending at court proceedings indicate that Assault on Women with Intent to Outrage her Modesty had pendency percentage of 88.8% while pendency percentage for Insult to the Modesty of Women was 86.5%. It is also important to note that conviction rates refer to only cases which have completed court proceedings in the current year. They do not include cases that are appealed to which are a large number themselves.
After the Nirbhaya gang rape case in 2012, India had strengthened its laws and legislated the Sexual Harassment of Women at Workplace Act in 2013. According to the recommendations of the Justice JS Verma Committee, Criminal Law (Amendment) Act of 2013 was enacted which had substantial amendments to laws for sexual offences to ensure sexual harassment is no longer trivialized.
However, though the law, prima facie seems a progressive step towards legal reform, it has failed to be gender neutral and has failed to address the procedural hindrances that slow down the grievance redressal process. It is important for all stakeholders of the justice system to realize the need for a legal reform to the criminal disputes resolution system. This essay deals with whether mediation in cases of sexual harassment is the right solution and means of this legal reform. Mediation is an emerging form of Dispute Resolution in India and other countries and it is slowly gaining recognition in resolving criminal disputes. The quest of exploring this topic is important because India is in dire need of an efficient and quick justice deliverance system, especially, in backdrop of the rise in sexual offences against women.
Sexual harassment is listed as a criminal offence and is punishable under several laws in India. However, no existing substantive legislation against sexual harassment recommends mediation for dispute resolution. In absence of a proper legislation, mediation in cases of sexual harassment should be dealt with utmost care and precaution in order to protect the self-respect and dignity of the survivor. The following are the major legislative enactments in India which deal with the issue of Sexual Harassment (excluding provisions for grave and heinous crimes like rape):
Under this legislation, Section 294 punishes for obscene acts, singing/reciting/uttering obscene songs, words in public places to the annoyance of others. The Punishment is imprisonment for a term of up to 3 months or fine, or both. IPC Section 354 particularly deals with sexual harassment. Section 354(A) includes demanding/ requesting sexual favours, showing pornography, sexually coloured remarks, physical contact and advances and punishes accused with imprisonment for 1-3 years or fine or both. Section 354 (B) deals with assault or use of criminal force with intent to disrobe and punishes for 3–7 years in prison and a fine. Section 354(C) deals with crime of voyeurism i.e. watching, capturing or sharing images of a women engaging in a private act without her consent and is punished with jail for 1- 3 years, for first conviction and 3 – 7 years, for second conviction along with fine. Section 354(D) deals with sexually harassing a women by stalking and punishes with 3 – 5 years of jail coupled with fine. IPC Section 499 includes defaming a women by morphing pictures and sharing them with intention to harass and lower reputation in the right thinking members of the society and is punishable by jail up to 2 years or fine or both. Section 503 includes criminally intimidating a women if she refuses sexual favours /advances and thus is threatened for physical or reputational harm, shall be punished with imprisonment for 2 years or fine, or both. Section 509 punishes for insulting the modesty of a woman and is punishable by jail of 3 years and fine. Under the provisions of the statute, depending on whether the aforementioned offences are compoundable or not, mediation may be possible under special circumstances. This will be discussed in-depth later in the essay.
- Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (Workplace Act)
The Act aims for “prevention and redressal of complaints of sexual harassment at workplace”. Under the act an “aggrieved women” can belong to any age, employment status (interns, permanent, part time/ full time), whether in organized or unorganized sectors (domestic workers, daily wage labourers), public or private and has been subjected to any act of sexual harassment. An Internal Complaints Committee, having at least 50% women on board, is mandatory to be set up in each office with 10 or more employees to investigate regarding complaints of assaults.
Furthermore, using mediation for redressal during the dispute resolution by the ICC is not mentioned in the Act.
- Protection of Children from Sexual Offences Act, 2012 (POCSO)
The act gives provisions for protection against Child Sexual Abuse. Mediation must not be allowed in cases under POCSO because it is not healthy for a child’s mental health. The process of mediating the abuser will not only be traumatic for the child but will also defeat the purpose of the law by diluting the essence of the grave crime.
- Protection of women from Domestic Violence Act 2005
The Act along with IPC Section 498A (cruelty towards a married women) protects women from being abused and harassed in the household. The Supreme Court has recommended mediation in cases of matrimonial disputes arising out of such issues. In case of K. Srinivas Rao v. D.A. Deepa, a case regarding Section 498A of the IPC, the apex court noted that “mediation, as a method of alternative dispute redressal has got legal recognition and ordered all mediation centers to make efforts to settle matrimonial disputes at pre-litigation stage.”
- Indecent Representation of Women (Prohibition) Act, 1987
Under the Act, if an individual harasses another with print media etc. containing the “indecent representation of women”, they are liable for minimum sentence of 2 years. Mediation may be possible if both the parties are willing and consenting to the same.
Under Section 67 of IT Act, “publishing/ posting / transmitting lascivious material on a public online platform with an intention to defame or harass a woman, shall be punished on first conviction with imprisonment of 1-5 years and for second or subsequent conviction with imprisonment of 5-10 years with fine. Under this Act mediation maybe possible if parties are willing to settle amicably.
1. Mediation out of court
Parties to the case are enabled to approach a mediation centre or a mediator even without a court order in what is referred to as ‘pre-litigation mediation’ to resolve the dispute before filing a case to explore the possibility of dispute resolution without court intervention. If both parties are equally ready to reach a compromise, only then this method is viable for redressal of cases pertaining to sexual harassment.
2. Mediation in Court
2. 1. Pre- trial procedures:
The basic procedural law asks the survivor to file an FIR with the police. Once the case is filed, police investigation takes place and a police report is filed before the magistrate. On the basis of the evidence collected, either a Charge Sheet or a Closure report is requested by the police. If a charge sheet is filed, the magistrate takes cognizance and summons the accused for trial.
Once the case reaches the trial stage, depending on whether the offense is compoundable or not, the scope for mediation can be gauged. The Compoundable criminal offenses are given in Section 320 of the CrPC and allow for settlement and the other offences as non-compoundable vide Section 320(7). The scope for mediation in compoundable and non-compoundable sexual offences is discussed below.
2.2.1 Mediation in compoundable offences:
Sections 294, 499, 503, 509 of the IPC are compoundable. They allow for settlement which can be reached through mediation. In the case of Dayawati vs Yogesh Kumar Gosain, the Delhi High Court declared the following: “Even though there exists no express statutory provision enabling the criminal court to refer the parties to alternate dispute redressal mechanisms, there is no bar to utilizing them for the purposes of settling disputes which are the subject matter of offences covered under Section 320 of the Cr.P.C.” Furthermore, the court explained that if a mediation agreement reaches the criminal court, the court cannot rely on that agreement and pass a civil decree, it can only on the basis of the evidence either convict or acquit the accused and if the case is compounded, the compounding will have the effect of an acquittal under S. 320(8) of Code of Criminal Procedure. This has far reaching consequences as the aim of deterring for the crime via imprisonment or fine would be diluted.
Additionally, though the Supreme Court in Afcons Infrastructure Ltd. and Anr. V. Cherian Varkey Construction Co. Pvt. Ltd. and Ors. said that ADR is unsuited for prosecution of criminal offences; the judgment also notes that the categorization is “illustrative and flexible”. Thus, it can be noted that there is no judicial pronouncement prohibiting mediation in criminal compoundable cases.
To conclude, under appropriate circumstances, compoundable sexual offences can be mediated after approval from the respective High Court, if the parties to the trial are equally willing to undertake mediation for solving the dispute.
Non Compoundable Offences under the IPC cannot be settled because of their grave nature and the impact they have on the society. Earlier, sexual harassment under IPC Section 354 was compoundable. Then in 2009, settlement under the section was barred via amendment. Over expanse of many cases, another legal mechanism developed which allowed for mediation against non-compoundable offences. It has to be noted that the Supreme Court in many instances has authorized for ADR in non-compoundable cases. In the case of B.S. Joshi and others v. State of Haryana and another, the Apex Court observed that “in view of the special facts and circumstances of the case, quashing criminal proceedings under exercise of powers under Sec 482 Cr.P.C. is allowed even where the offences were non- compoundable.”
In K. Srinivas Rao v. D.A. Deepa, the apex court noted that in appropriate cases, if the parties are willing and if there exist elements of settlement, the criminal court should direct the parties to the possibility of settlement through mediation while not diluting the rigour, efficacy and purport of the non-compoundable offense. The High Court will quash the criminal complaint only if under all circumstances it finds the settlement to be equitable and genuine. Such a course, in the court’s opinion, will be beneficial to those who genuinely want to accord a quietus to their disputes.
In Gian Singh v. State of Punjab , the Apex Court has recognized the need of amicable resolution of disputes , by observing as under:- “The High Court may quash the criminal proceedings if in its view, if it would be unfair or contrary to the interest of justice to continue with the criminal proceedings would tantamount to abuse of process of law despite settlement and compromise between the victim and the wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in the affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceedings.”
In the case of Parabatbhai Aahir and Parbatbhai Bhimsinhabhai Karmur and Ors Vs State of Gujarat and Anr, the Supreme Court stated that the power under Section 482 is to be exercised sparingly and with caution. The High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape cannot be quashed because these offences not private in nature but have a serious impact upon society.
Thus, it can be concluded that criminal cases pertaining to sexual harassment may be mediated in the court of law under special circumstances. It is possible on the discretion of the respective High Court under section 482 of the CrPC, that too only when both parties are equally willing to reach a compromise and resolve the dispute using mediation.
In the USA, mediation though generally preferred for dispute resolution in civil cases, is gaining popularity in criminal cases too. Under criminal mediation programmes, victim-offender mediation is becoming popular. It is a process wherein, the victim and the offender of the crime are brought together to meet face-to-face under the guidance of a trained/professional mediator.
Mediation in the United States is governed by the treaty UNCITRAL (United Nations Commission on International Trade Law) to which the US is a signatory and the Uniform Mediation Act (2003). The United States Court of International Trade also has a court-annexed mediation programme. Mediation of sexual harassment claims is very prominent in workplaces all around the USA. It is also recommended by legal practitioners, especially in cases of workplace sexual harassment. Sexual harassment claims are more often than not mediated in the country due to various reasons that will be discussed later.
Australia has a lot of takers for mediation in cases of sexual harassment, especially in cases at workplace. Workplace mediation is an acceptable form of dispute resolution even though it falls under criminal offence as per the Sex Discrimination Act, 1984. According to Australian Human Rights Commission, it aims at resolving sexual harassment complaints at employment through mediation and conciliation. The AHRC has its own conciliators and mediators who work according to the Commission’s rules. By developing a system for mediation, the AHRC maintains that its purpose is to provide the victims with a choice out of court for resolution of sexual harassment complaints.
Mediation is a voluntary process primarily used in civil proceedings in United Kingdom. The court went further in Halsey to state that “in our view most cases are not by their very nature unsuitable for ADR.” However, there are limited areas where it will not be appropriate, such as criminal prosecutions and certain intellectual property matters. Recently though, some judges have expressed the possibility of allowing mediation in criminal cases but that possibility is yet to develop into anything substantial.
Canada is a signatory to several international treaties that refer to mediation and is a member of the United Nations Commission on International Trade Law (UNCITRAL) and the International Chamber of Commerce. There is no overarching law relating to mediation in Canada. However, mediation is generally available to resolve a wide variety of disputes, including labour disputes, human rights complaints and family law disputes. Canada has no history or present sources of law to show that it incorporates mediation in criminal cases.
Sweden, Romania and Tanzania allow mediation in such cases to a limited extent. Sexual harassment claims are seldom resolved by mediation. Germany only allows mediation in criminal cases up to the extent of cases of misdemeanour with victim-offender mediation. This can be extended to sexual harassment claims as well where victim-offender mediation is prevalent. Italy allows for mediation in juvenile proceedings and in criminal cases with complaint filed by the victim which can be permissible for sexual harassment claims.
Thus, it can be concluded that mediation in cases of sexual harassment has received mixed response, globally. This is because using mediation to settle a criminal dispute has its own advantages and disadvantages which play out differently with changing social, political, economic and cultural contexts. These merits and demerits will be discussed below.
Why Sexual Harassment Claims should be mediated –
Mediation is a voluntary process that ensures confidentiality of the victim, offender and the employer in cases of workplace sexual harassment. The need for privacy of these sessions is to prevent loss of reputation for business and individuals. While court cases are on public record, mediated cases are a personal affair.
Mediation is also a method that costs much less than ordinary litigation, which assumes expenses in terms of court fees, attorney fees, etc. More importantly, it places lesser evidentiary burden on the complainant to prove his/her case as opposed to litigation. Mediation promises a faster resolution to issues of sexual harassment than courts which take months and sometimes years to resolve such disputes, effectively prolonging the victim’s trauma.
The most important reason why mediation should be preferred is the fact that it is the parties who get to decide the outcome of their dispute by mutual agreement. They do not have a binding judgement that leaves one or both the parties unsatisfied. Therefore, it is a tool of empowerment for the parties due to their involvement. The parties are thus more likely to respect and adhere to the decision because of them shaping the solution themselves to fit their needs the best. The solution, in cases of sexual harassment at workplace, could be in the form of an apology, policy changes, staff training, etc. because of the personalized nature of it, which a court cannot allow for.
Another important benefit of mediation is that it allows dialogue between the parties affected. By conversing with each other and getting to the point where they agree to the solutions put forward, they understand the positions of each other and carve out a mutually agreeable position. In a lot of victim-offender mediations victims of sexual harassment find that confronting their offender in a safe and controlled setting, under a mediator’s assistance, returns their stolen sense of safety. Victims who participate are provided with an opportunity to ask questions, address the emotional trauma caused by the crime and its aftermath, and seek reparations. When the accused is directly confronted with the consequences of his/her actions and is asked to explain them, it can be a very powerful tool to provide closure to the victim. In this way, the harasser truly understands the position of his/her victim and tries to amend the wrongs by offering the victim a sincere apology and a promise to mend his ways.
Mediation avoids damage to working and business relationships in cases of workplace sexual harassment. It often preserves the quality of continuing relationships as everyone is more likely to accept the outcome as fair instead of the declaration of a winner and a loser in case of trial. It turns out to be a more effective method that also deals seriously in such cases.
In cases of workplace sexual harassment, mediation turns out beneficial for even the employer because it protects the employees’ relationship with them. Further, as a result of mediation, the employer may be able to take steps to protect employees from sexual harassment without having to compromise the company’s reputation because of a certain defaulting employee. For these reasons, employers should integrate mediation into their dispute resolution policies and encourage employees to mediate any sexual harassment disputes that arise. It is also to be noted that forced mediation at workplace should be avoided at all costs as it curbs the liberty of the victim further.
Sexual harassment claims often involve power imbalance between the offender and the victim. The victim, being at a disadvantaged position already may be manipulated or forced to accept solutions that he/she may not have wanted. Establishing certain safeguards such as presence of counsel for the victim in victim-offender mediation can help him/her. A counsel assuming an advisory role can effectively make the offender understand the victim’s position from his/her point of view. Further, an attorney can advise their client as to the implications of certain decisions that they may take.
Lastly, mediation as a method should be preferred because it is known to work effectively and satisfactorily instead of other methods such as litigation or arbitration. Mediation has been known to resolve conflicts 85% of the times it is used. It is a widely recommended method by legal advisors and attorneys. An ADR program instituted by Equal Employment Opportunity Commission of the USA in 1992 registered a success rate of more than 50% in mediation cases with ninety-two percent of the parties rating the mediation process as “very fair” or “fair”. In a recent study, 77% of the claimants who mediated their disputes were satisfied with the process, compared with only 45% of those whose disputes went to arbitration.
Why Mediation should be avoided in cases of sexual harassment –
Mediation requires equal willingness and voluntary participation from both parties involved. As a result of this arrangement, the probability of a survivor opting to mediate the criminal dispute with her violator is very low. This is because sexual harassment has a huge impact on the mental and physical wellbeing of the survivor and talking out the dispute by sitting across their offender will harm the dignity of the victim as she will have to suffer again.
The biggest disadvantage to mediation in cases of sexual harassment is that the concept of mediation aims for settlement of an issue rather than providing justice for the crime. Justice under criminal law aims to provide deterrence to the society. Mediation may result in diluting the essence of the criminal justice system.
Furthermore, it is difficult to differentiate between grave crimes like rape that are considered unfit for mediation due to their heinous nature and those crimes which are considered to be of lesser intensity and thus may be mediated. This becomes especially controversial in the case of an issue as critical as sexual harassment. Another tricky part of mediating the criminal dispute in cases of sexual harassment is the determination of “consent”. Even when litigated with formal procedures under the adversarial system in the court of law, determining whether the consent of the survivor was violated is a difficult task. Under mediation it may become further complicated because in criminal cases the charges have to be proved beyond reasonable doubt. As there exists lack of corroborative evidence in cases of sexual harassment, proving the crime while mediating becomes troublesome.
Mediation is at a very nascent stage in India. There is a lack of proper awareness regarding mediation and there exist no substantive and procedural laws to facilitate it in criminal disputes. When it comes to an issue as precarious as sexual harassment, mediation seems very difficult to implement. Also, mediation doesn’t guarantee any protection of the victim during and after the dispute is mediated. Nor does it guarantee that the accused won’t commit the crime again.
India lacks a proper grievance system for gender based violence. Mediation in cases of sexual harassment is underdeveloped at present and thus it may fail to be accessible, affordable and guarantee inclusivity for people belonging to all social strata. Additionally, sexual harassment is rampant in underprivileged and backward groups but their socio-economic conditions prevent them from accessing the same resources as the privileged groups. This makes grievance redressal more inaccessible for the underprivileged groups.
Another reason to avoid mediation is that there is no system of checks and balances to prevent power imbalance, coercion, political influence and bias creeping in when the dispute is being mediated between the parties.
Sexual harassment is an issue that pervades every corner of the world and considering recent developments, it can definitely not be ignored. We must explore solutions to address this issue effectively because the current systems of redressal have several loopholes due to which grievance redressal becomes expensive, time consuming and harmful to the victim itself.
Mediation is one such new method that has been seen to effectively address sexual harassment complaints, accompanied with several benefits to the victim. It is a cheaper method that takes much less time and saves the victim of agony that she/he may face in court tribunals. It is also a much more convenient method that enables a dialogue between the victim and the accused so that they reach a mutually acceptable decision. However, on a closer look, we notice that mediation is not a completely effective method because it is inaccessible, biased towards the offender and subject to manipulative practices by employers and the accused. In India, sexual harassment is not taken very seriously in the society. In an environment of victim blaming and shielding of the accused, it puts an added pressure on the victim to settle the matter and not pursue litigation because she also fears for her reputation.
Mediation can prove to be an excellent grievance redressal mechanism if it becomes more victim-centric and provides special safeguards to the victim. It is of utmost importance in mediation of sexual harassment complaints that the victim must be accompanied by a counsel who would assist them and represent their case completely to the other party. This can, to some extent address the power imbalance that exists between them.
Lastly, mediation can be practiced in cases of sexual harassment only if it is mutually agreed to by both the parties with free consent. It has to be ensured that the victim hasn’t agreed to mediate due to external pressures. The mediation technique must have special provisions for the victim so as to facilitate the dialogue and dismiss any possibilities of domination by the accused. It is important that the needs of the victim be kept at the forefront so that it can turn out to be a fair and reasonable method. With these provisions, mediation in sexual harassment cases will be a fruitful exercise that will be used to empower the victim.
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 supra note 1.
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 §294 The Indian Penal Code, 1860 (Act No. 45 of 1860).
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 Protection of Children from Sexual Offences Act, 2012 (Act No. 32 of 2012).
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 supra note 20.
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 Parabatbhai Aahir and Parbatbhai Bhimsinhabhai Karmur and Ors Vs State of Gujarat and Anr, (2017) 2017 SCC OnLine SC 1189.
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 supra note 40.
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 supra note 40.
 supra note 33.
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