In their zeal to protect women, lawmakers have set the course for curtailing sexual expression
The adoption of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill 2012 should be applauded as a landmark move in the direction of women’s right to equality. Yet, a close reading of the provisions reveals how, once again, good intentions are not sufficient and the sword of progress may in fact turn into boomerangs.
The strength of the Bill rests in the preamble, which categorically states that sexual harassment is a violation of women’s fundamental rights to equality and life. It further provides that women have the right to a safe environment in the workplace, free from sexual harassment — a commitment that is consistent with India’s obligations under the Convention of All Forms of Discrimination Against Women. This powerful endorsement of sexual harassment as a violation of women’s rights gets lost in the technicalities and poorly conceptualised provisions of the bill.
The legal definition of sexual harassment has unwelcome sexually determined behaviour (whether directly or by implication) as: physical contact and advances; a demand or request for sexual favours; sexually coloured remarks; showing pornography; and any other unwelcome physical, verbal or non-verbal conduct of a sexual nature. Somewhat awkwardly, a separate clause deals with quid pro quo harassment — sexual conduct in which a threat is made or a benefit offered in order to obtain sex. It includes conduct that interferes with a woman’s work or creates an intimidating, offensive or hostile work environment for her; or constitutes health and safety problems for her.
Sexual harassment is a problem and experienced almost routinely by women in the workplace (as well as on public transport, the streets and other public spaces). However, in its zeal to provide an enabling environment for women in the workplace, the legislature has cast the net very wide — sexual gestures, offensive remarks, lurid stares, embarrassing jokes or unsavoury remarks might be among the litany of conduct and expression that could be caught by the new law. The central question is whether we want the heavy hand of the law to block the lurid stare or suppress the sexual joke, which may be somewhat embarrassing to some? Should embarrassment and shame on the topic of sex inform how we regulate sexual conduct in the workplace and elsewhere?
There are two ingredients to sexual harassment: firstly, the conduct must be unwelcome; secondly, it must disadvantage the complainant, for example by affecting her recruitment or promotion or creating a hostile work environment.
The first leg of the test places the burden on the complainant to prove that the conduct was ‘unwelcome’. But what constitutes “unwelcome” conduct? Should an employee’s dress style, social habits, or previous intimate relationship with a colleague in the workplace be taken into consideration when assessing if the conduct was unwelcome or welcome?
The existing case law reveals that a complaint may fail if she does not conform to dominant sexual norms, leading to the conclusion that what happened to her was welcome, or that she deserved it. For example, one U.S. Supreme Court held that a woman who drinks beer and hangs out with her male colleagues after work implicitly welcomes the unwanted sexual attention. Dress, conduct, modesty, chastity, and even profession, may be used to show that the harasser was incited to the conduct and thus constitute sufficient evidence to disqualify a claim of sexual harassment. Bar room dancers, waitresses, performers, are all vulnerable to such arguments.
The second leg of the definition, that the harassment must disadvantage the complainant, seems to have been either dispensed with or mitigated by the courts, leaving open the possibility that any kind of sexual remark that is neither severe nor pervasive, but may be offensive, sexist and bigoted, can be impugned under the act. Research shows that the law in other jurisdictions has resulted in the curtailment of sexual speech in the workplace, and encroached on rights to equality and sexual autonomy, rather than stopped the harassment.
Given the pressure on employers and the desire to avoid being subjected to litigation, employer-drafted codes can declare that the work space be sexually sterile, or employers can announce a ‘zero tolerance’ policy on sexual humour. In one example in the United States, when a library employee complained about a co-worker’s posting a cartoon that used the word ‘penis’ — with no sexually suggestive content at all — the library ordered that it be taken down.
Sexual harassment is a serious problem and the new act marks an important step in recognising a concern that affects most women. But there is a need for courts as well as rights advocates to ensure that women’s rights to equality in the workplace are not secured through the regulation of sexual conduct, muzzling of sexual speech, or moral surveillance of women’s lives. Such strategies have historically only perpetuated sexual stereotypes, sexual orthodoxy, and compromised on women’s fundamental rights. Workplace policies and codes must be drafted in a way that specifically recognises and respects an individual’s right to sexual autonomy and bodily integrity. Sexual harassment must be effectively addressed in support of and not at the cost of women’s fundamental rights as clearly set out in the preamble.
(Ratna Kapur is Global Professor of Law, Jindal Global Law School.)
Keywords: Sexual harassment, women's rights
Work places must be free from harassment. Yes, there should be law on sexual harassment at work place. But the law should have inbuilt mechanism of misuse of the law.
Yet another law which will be misused rampantly and Indian criminal procedure code is grossly inadequate to ensure punishment to misuser of law. In turn what will happen? Women will get fewer jobs in SME segments as SME segment has no resources to fight legal battles.
I am sure these law will be yet another law misused as much as or more like CrPC 498A.
Do not agree with me? Look around the net and search 498A misuse. Most men married or unmarried will be terrified at potential threat against him.
Please do not divide already fragmented society.
If the local govt makes a mistake than only the people in that district
will suffer. If the union govt makes a mistake than the whole country
will suffer.
Union govt can only make laws about physical aggression it is impossible
for it to make any sensible law on verbal aggression. The best solution
will be to leave it to the local district level govt.
It is interesting to note that India shares the same jurisprudence - in this case the British jurisprudence - with a number of other advanced countries such as USA, Canada, Australia and New Zealand. The main reason why these countries are advanced is because of better governance because of a higher respect for the Rule of Law. Also, respect for Rule of Law is established through far more strict enforcement.
This is exactly where the problems lie in India. India has many laws - mostly good ones and mostly with good intentions - but are they effective? Laws are only effective if - and ONLY if - they are strictly enforced. Just look at Singapore, another legacy of British jurisprudence, where enforcement of laws is perhaps the strictest.
Unless laws are enforced strictly, simply having them on the books will make them an ass.
Making of law is a direction that is assigned. I believe a lady
should be respected in all respect. We have to keep in our mind that
even our different form of ladies are on the move(work, market,...),
the remark we are giving or the favor we are asking if asked to them
...will it be good? If yes...Continue...else...think, we might be
approaching the interface.
Further, we have to teach our children not only to behave but to
think, and if are able to do that definitely creating a better, safe
and respected future for our children (Not only GIRL but BOYS also).
The mainstream media should remember that people cannot be fooled all
the time since we have minds of our own and the ability to think. The
laws for women are against the principles of gender equality and
justice as it views men as eternal criminals and women as perpetual
victims. The media has been showcasing only the female perspective
without even once showing the other side. This is highly unfair,
prejudiced and biased. This article is one such biased viewpoint to
brainwash people. But we are not fools. We can see through these
viewpoints of the media. Media, your game is over. Either showcase all
viewpoints or be prepared for your demise.
Work place should be free from harassment. Sexual harassment is the worst one. Law on the subject with inbuilt mechanism for preventing its misuse is needed.
The author brilliantly side-tracks the lack of in-built mechanism to discourage complaints without proof and the need to punish such wanton complainants in this Bill. Other contributors in your esteemed columns have argued in the recent past that such laws would only discourage the complainant from lodging a complaint. The idea seems somehow a Man has to be punished whether he is guilty or not. If that is the case then we might as well do away with all pretensions of lodging a complaint, screening it, setting up an enquiry committee etc. The law could be so drafted that a woman points her finger at a Man and his head rolls. This would obviate the need for all this cacophony meaning nothing.
While sexual harrassment law is welcome to protect women, it is equally important to ensure women do not "invite" or "incite" some callous behavior by their actions - dress code in particular, which exposes cleavages, navel, thighs etc to provoke male folks - also some at work place do show wrong attitudes towards co workers to make them submissive or arrogant by indecent behavior; this also needs to be under check - rules should be strict and uniform for all employees - and NO one allowed to take advantage by status!
While I agree that moral surveillance of women's lives is not right, I
have to disagree with other arguments of the writer. Sexual conduct
and speech is uncomfortable to women when it comes from colleagues,
because it belittles her unalienable right to equality at the
workplace. Why shouldn't we have sexually sterile workplaces? If a
woman doesn't like a sexual remark, stare or act, then it is
unwelcome. I fail to see where the ambiguity lies in this. It is not
related to her dress or lifestyle, it is just about whether or not it
makes a woman uncomfortable. It is infinitely better to make all
sexual behavior punishable at the workplace, than to make provisions
to legalize "stares and harmless comments". Eve-teasing is degrading
and dehumanizing, and there is no justification for it. The bill is
laudable in every aspect, especially including its strict provisions.
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2012 ( which will soon become an Act) has enough scope for misuse aimed at settling personal grudge. It reads like some Saudi Arabian rule, where men and women are not allowed to mingle. In fact, Saudi Arabia is now planning a separate township for women! There is no guarantee that even after passing this bill, the harassment against women will stop as its implementation is very difficult and due to the severe punishment clause, courts will think twice before pronouncing anybody guilty. Employees falling in love in office (like in anyother place) or courting friendship is quite common and this kind of draconian act can go against this very human nature ---- after all, nobody can live alone in this world!
This is a giant leap forward for Indian women. As the percentage of
Indian working women increases rapidly this legislation would give
women more freedom at their work place. In the meantime men should not
view women as a sex object. They should make space for them to
interact freely with them. Men should also change their mentality
towards the women who work as Bar room dancers, waitresses, and
performers or porno actresses,it's their profession like any other.
It's because they are in these profession these women should not be
taken for granted and degraded.
The Criminal code is to ensure the culprit to get punishment at the earliest so that the others do not venture into either by fear or prodence of mind is obsent in present day criminal justice.
The criminal charged person is not entitled to after effect circumstances to get relief under the cover of any past habits of the affected should be the common ground for trial,be made implicit in a given case of sexual harassment of any kind.
Though the Court can invoke is lenient is the real cause of the real culprit escapes the punishment has to be curbed to render Justice.
Very nuanced article. There are subtleties in writing a law, and one can
only hope that such laws in India are written in accordance with the
mindsets of those who work and face these situations. There is no point
in engaging a legal stalwart who is out of touch with the times.
How to set right the flawed "technicalities and poorly conceptualised provisions of the bill" ? I hope the learned professor of Law can enlist the support of other legal luminaries and the team can prepare an alternate Bill. Then there will be the monumental task of convincing the lawmakers that their "supreme powers" are not held in contempt by the very existence of an alternate Bill. If that can be achieved, and the alternate Bill passed, it will be a victory for women and men who value life and liberty. It will also prove that we have a democracy that works.
Men too are victims of sexual harassment by women at workplace. The law should be gender neutral.
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