The Jammu and Kashmir High Court has asked the government to examine if a new law was needed to deal with sexual exploitation of women in the state and address a “critical vacuum” in the existing legislation.
The directions appeared on the court’s website on Tuesday and were issued after perusal of written submissions and a detailed report by Advocate Amicus Farrah Bashir and State Counsel Asifa Padroo on the existing laws related to sexual extortion.
“The internationally developing concept of ‘sextortion’ could be examined in the Indian context and to see whether the State is required to either legislate a separate law on the subject or to make necessary amendments in the existing penal laws or undertake a combination of both so as to create
a requisite deterrent effect in the Society against the sexual
exploitation of women in any form whatsoever, as has been done in the various South African Countries, Manilla, and other countries as also recognized by the United Nations,” a division bench of Chief Justice Gita Mittal and Justice Alok Aradhe said while hearing a Public Interest litigation against corruption and sexual exploitation.
“Let this order be placed before the Chief Secretary of the State of Jammu and Kashmir to examine the issues, and take appropriate step.”
The court said it has undertaken a close examination of the existing laws to examine whether the existing legal structure sufficiently cover specific situations.
The proposed definition, the court said, would have to include components to deal with sexual exploitation and corruption.
“It would involve a request – whether implicit or explicit – to engage in any kind of unwanted sexual activity and the person who demands the sexual favour occupies a position of authority, vis-à-vis the person who is abused,” the court added.
“The underlying idea is the element of quid pro quo where the perpetrator demands and accepts the sexual favour in exchange for a benefit that he is empowered to withhold or confer. The imbalance of power between the perpetrator and the victim allows the perpetrator to exert of psychological pressure, which most significantly is not very different from that of monetary corruption.”
The court held that any definition must notice that “a sexual favour could encompass anything from an inappropriate suggestion, improper touch to sexual intercourse.”
The court said it is the duty of the State to ensure circumstances of emotional and physical security which inspire confidence in women to live freely and to ensure the Constitutional goal of equality by creating a level playing field for them in all circumstances.
The court further pointed out that it cannot be denied that prescription of a statute rendering the unwarranted acts as penal offences would go a long way in achieving this Constitutional goal of safeguarding girls and women.
“It therefore cannot be denied that it is absolutely imperative that the illegal acts, unwarranted demands and inappropriate contacts are given a legal nomenclature, clearly defined and also made specifically punishable in law and that the critical vacuum in the legislation in this regard is immediately addressed,” the court said.
The court observed that it was not unusual or unheard of that the demand for a sexual favour from a woman to, for instance, enable her to secure a job or a promotion, or for a student to pass a test while pursuing education or even for routine work from persons in authority, whether in public service or otherwise.
“Such situations include places, where engagement or advancement depends on discretion which vests in the perpetrators.”