The #MeToo movement has created quite a stir in the country. A number of women, living with the nightmares of sexual harassment that took place long ago at their workplace, have named the offenders. Many have denied the allegations, even challenged in the court of law. It is also argued that false cases are being slapped under the shadow of #MeToo movement. Yet, the movement does not seem to slow down and a few survivors have already approached the police and cases have been registered.
The police are mandated to register an FIR; however given the decision in Lalita Kumari case (2014), officers may choose to do a preliminary inquiry into allegations if the case is reported with more than three months delay. The most important task for the police will be to note down the reasons for late reporting. The ‘facts and circumstances of the case’ must be viewed that possibly led to the delay, reasons ranging from social stigma or loss of job to the continuing trauma the woman had to go through. Since the charges will have to be proved in the court; the police might even take the help of psychologists to build the case.
Second, since most offences are committed in private spaces, the evidence of eyewitnesses remains absent. However, since the survivors generally share the painful experiences with close friends or relatives, their statements may corroborate the charges. The victim might also have received some psychological or medical treatment following the incident. The testimony of such doctor or expert could be very crucial for the case.
Third, the scientific evidence could be of enormous help in appropriate cases. The narco test, lie detection test and brain fingerprinting can be very useful in such situations. The brain fingerprinting test, in particular, can reveal a long-buried piece of information in the brain of either the victim or accused person.
However, such methods can only be used with a degree of caution. When the brain fingerprinting test was first conducted by Lawrence Farwell on a person accused of murder in the course of an attempted robbery, the convict Harrington was acquitted by the Supreme Court of Iowa (USA) in Harrington v. Iowa (2003), after spending about 24 years in jail and the claim of Lawrence Farwell that the brain fingerprinting test showed no memories of the ‘probes’ relating to the act of murder was vindicated.
Fourth, it is understandable that a woman police officer can better empathise with the survivor of sexual harassment than their male counterparts. Therefore, a committee headed by a woman police officer, similar to the Vishakha Committee (or the internal complaint committee as it is called under The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013) should investigate such cases.
Last, it will still be within the jurisdiction of the court to decide whether a case reported with inordinate delay could be taken cognizance of or not. Section 468 of the Criminal Procedure Code (CrPC) defines the limitation period for taking cognizance, which is one year for offences punishable with imprisonment up to one year, three years for offences punishable with imprisonment up to three years. For more serious offences, there is no time limit prescribed in the law. Still, in the interest of justice, delay of any period can be condoned by a competent court. There are three sections under the Indian Penal Code (IPC) which are related to cases of sexual harassment or violence, i.e., section 509 (to insult the modesty of a woman punishable up to three years), 354 (outraging the modesty of a woman punishable up to five years) and 376 (rape punishable with up to life imprisonment). Therefore, except for cases under section 509, taking cognizance will not be a problem, to begin with. It is also a settled law that it is not necessary to decide whether the extension of the period of limitation must precede of taking of cognizance of the offence.
In fact, the whole case for such offences depends upon the credibility of the statement of the victim. The medical evidence, even in rape cases, is not a mandatory piece of evidence. If the court finds merit in ‘facts and circumstances of the case’, even single statement of the victim is sufficient to hold the accused guilty.
The movement has posed an unprecedented question before the police and courts. They are expected to take up the challenge and emerge with innovative methods to ensure justice.
(The author is a special Director General of Police. Views expressed are personal.)