Legal Remedies to Deal with Mental Harassment
Unfortunately, the mental harassment of an individual is often kept in the backseat, both in terms of their social life and their legal remedies. Although there was a rich tradition of the legal system in Ancient India, the present judicial system of the country derives largely from the British system and is based on English Common Law, a… Read More »
Unfortunately, the mental harassment of an individual is often kept in the backseat, both in terms of their social life and their legal remedies. Although there was a rich tradition of the legal system in Ancient India, the present judicial system of the country derives largely from the British system and is based on English Common Law, a system of law based on recorded judicial precedents.
Earlier legislation in respect of mental health was primarily concerned with custodial aspects of persons with mental illness and protection of the society. Indian laws are also concerned with the determination of competency, diminished responsibility and/or welfare of the society. Hence, it is pertinent to throw light on the current legal scenario around the mental health of individuals.
I. Introduction
The term “Harassment” may refer to a kind of discrimination. It covers an exhaustive scope of acts of an offensive nature. Simply put, it means any unwanted behaviour, physical or mental, that is capable of offending and humiliating the other person. In a more legal sense, such behaviours appear to be upsetting and threatening.
The inception of these behaviours can be attributed to discrimination as they have impaired a person to benefit from their rights. A repetitive behaviour of the same kind can also be referred to bullying in the common parlance.
Harassment can be of many kinds ranging from physical and mental harassment to sexual harassment and cyberbullying. Even though in this article, we will be understanding mental harassment, we must not negate the fact that mental harassment is co-related to other forms of harassment as a person can be a victim of mental harassment while being a victim to any other form at the same time.[1]
II. Legal Analysis of Mental Harassment
Before understanding the legal aspect of mental harassment, it is imperative that we understand what it actually means. Psychological harassment comes under detrimental or hostile conduct by one or more individuals directly or indirectly towards a third person. This is conduct that occurs frequently and over a long period which defames an individual or excludes them from work.
It refers to a conjunction of incidents which when considered individually may appear harmless. However, their continuous repetition has a destructive and impairing effect on the victim.
Certain rights are basic for an individual and are guaranteed by birth. The Protection of Human Rights Act, 1993 characterizes basic liberties as the rights identified with the life, freedom, balance and nobility of the person which are guaranteed by the Constitution or exemplified in different International Covenants which are enforceable in the Courts in India. The right to live with dignity shapes a part of common liberties and any type of harassment adds up to a breach of the right to live with dignity.[2]
Following are various laws which concern themselves with mental harassment:
1. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
This was the first enactment ordered to protect women from being sexually harassed at their working environment.[3] The enactment has characterized the term sexual harassment under section 2 and gives a comprehensive definition expressing that sexual harassment incorporates at least one of the following acts or conduct (regardless of whether being direct or implied) namely:
- physical contact and advances; or
- a demand or request for a sexual favour; or
- making sexually coloured remarks; or
- conventional pornography; or
- any other unwelcome physical, verbal or non-verbal conduct of sexual nature;[4]
The law commands certain practices which working environments should follow to forestall sexual harassment and instruments which should be made for redressal of complaints.[5]
2. Indian Penal Code, 1860
IPC does not define the term “Mental Harassment” particularly. However, there are provisions through which harassment can be interpreted. They are as follows:
Section 498A: Husband or relative of husband of a woman subjecting her to cruelty – Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation —For the purpose of this section, “cruelty” means—
- any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
- harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
Section 509: Word, gesture or act intended to insult the modesty of a woman —Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both.
III. Judicial Precedents
The Indian Judiciary has been instrumental in dealing with cases with regard to Mental Harassment:
Vishaka & Ors. v. State of Rajasthan[6]: The Apex Court delivered a landmark judgment in the history of sexual harassment. The term Sexual Harassment refers to the act of an uninvited favour from one gender towards another. It results in humiliating, offending and insulting the person towards whom it has been done and totally destroys the mental peace of that person causing a greater degree of mental harassment.
Sexual harassment is one of the social evils looked at by the fragile bit of the general public. The court saw that the fundamental rights under Article 14[2], 19[3](1)(g) and 21[4] of the Constitution of India that, each calling, exchange or occupation ought to give safe workspace to the representatives. It hampered the privilege of everyday routine and the option to experience a noble life. The fundamental prerequisite was that there ought to be the accessibility of safe workspace in the work environment.
The Hon’ble Supreme Court held that women have the fundamental right towards the opportunity of sexual harassment in the work environment. It additionally set forward different significant rules for the representatives to follow and stay away from sexual harassment of women in the working environment. The court likewise proposed having legitimate procedures for the execution of cases where there is sexual harassment in the working environment. The fundamental point/objective of the Supreme Court was to guarantee sex balance among individuals and furthermore to guarantee that there ought to be no separation towards women in their work environment.[7]
Nagaraju v. Syndicate Bank and Ors[8]: The High Court of Andhra Pradesh, in this case, went to elucidate Mental Harassment and defines harassment as per the Indian Journal of Community Medicine stating, “Harassment is any improper and unwelcome conduct that might reasonably be expected or be perceived to cause offence or humiliation to another person. Harassment may take the form of words, gestures or actions which tend to annoy, alarm, abuse, demean, intimidate, belittle, humiliate or embarrass another or which create an intimidating, hostile or offensive work environment.”
The Hon’ble AP High court proceeded to add, “At long last, we may hence state or characterize the work place harassment as follows: Workplace harassment is any kind of unwanted activity towards an employee by the business or anyone for his sake that prompts trouble in performing allotted assignments or makes the employee feel the individual in question is working in a threatening climate. The harassment might be founded on such factors as race, sex, culture, age, sexual direction, or strict inclination.”
By and large, there are a few factors that should be available to work environment harassment to be perceived. The employee should voice their issue with the conduct, permitting the culpable individual or people to address their work environment conduct.
IV. United Nations Convention for Rights of Persons with Disabilities and Indian Laws
UNCRPD was adopted in December 2006. It was ratified by the Parliament of India in May 2008. Nations that have marked and ratified the UNCRPD are needed to get their laws and strategies agreement with it. Hence, every one of the disabilities laws in India is as of now under the interaction of modification. The convention denotes a change in outlook in regard to disabilities from a social government assistance worry to a common liberty issue.
The new worldview depends on the assumption of lawful limit, uniformity and pride. As per article 2 of the convention, PWD will appreciate a lawful limit on an equivalent reason for all parts of life. Article 3 calls the state to take proper measures to give admittance to help by PWD to practice the lawful limit. Article 4 calls for shields to forestall maltreatments of the arrangement of help needed by PWD. There is no express denial of constrained mediations in the UNCRPD, however, neither does the Convention license obligatory emotional well-being care.[9]
MHCB accommodates substitution of licensing of emotional wellness foundations to enlistment and foundation of Mental Health Review Commission with its state boards. Confirmation measures have been definitely changed. The most remarkable component of MHCB is that it reveres obligations on the public authority to set up and give emotional well-being administrations to all residents and take suitable measures in this regard. There are intricate arrangements in regard to common freedoms of the PMI and it has a different section for the reason.[10]
[1] Glenn HP. Legal Traditions of the World. Oxford University Press; 2000. pp. 255–76.
[2] Agrawal AK. Mental health and law. Indian J Psychiatry. 1992; 34:65–6.
[3] Sharma S, Varma LP. History of mental hospitals in the Indian sub-continent. Indian J Psychiatry. 1984; 26:295–300.
[4] Dutta AB. The Long March of Mental Health Legislation in Independent India; Dr L.P. Shah Oration delivered at IPS-WZ Conference at Goa. Goa Psychiatric Society; 2001.
[5] Banerjee G. The Law and Mental Health: An Indian Perspective. 2001. [Last accessed 2012 Jun 21]. Available from: http://www.psyplexus.com/excl/lmhi.html
[6] AIR 1997 SC 3011
[7] Mental Health Rights Group. [Last accessed 2012 Jul 03]. Available from: http://www.mhrg.org/Why-We-Against-MHAA.aspx
[8] 1991 AIR 1507
[9] Dhandha A. Status Paper on Rights of Persons living with Mental Illnessin light of the UNCRPD, in Harmonizing Laws with UNCRPD, Report prepared by the Centre of Disability Studies. Human Right Law Network. 2010 May
[10] UNCRPD. 2006. [Last accessed 2012 Jun 21]. Available from: http://www.un.org/disabilities/