Ayesha Kidwai supports a broad definition of sexual harassment and provides two fact situations that would quite rightly be covered by such a definition. The point of contention is that the current definition would allow a complainant to succeed even in cases where the sexual conduct or speech was merely offensive, rather than subordinating and a violation of her right to workplace equality.
In a Supreme Court case decided shortly after the Vishaka judgment, an employee complained that her chairman had tried to molest her on several occasions during the course of her employment. While the Court accepted the definition of sexual harassment as laid out in Vishaka, it went on to hold that “any action or gesture which, whether directly or by implication, aims at or has the tendency to outrage the modesty of a female employee, must fall under the general concept of the definition of sexual harassment.” The Court held that the Chairman’s behaviour was against “moral sanctions,” did not withstand the test of “decency and modesty” and constituted unwelcome sexual advances.
Delinking the problem of sexual harassment from sex discrimination opens up the possibility of all sexual conduct in the workplace being impugned on the basis of “moral outrage.” The current bill does nothing to rectify this concern, as the main definition fails to require that the impugned conduct result in an abusive and hostile working environment. As a result, the rights to sexual autonomy and expression rather than sexism have potentially become the bill’s central casualties.
(Prof. Ratna Kapur is with Jindal Global Law School.)