The listing of the Protection of Women Against Sexual Harassment at Workplace Bill for discussion and adoption in the current session of Parliament is a welcome step. It is also welcome that the government has reversed its earlier unjustifiable position of keeping domestic workers outside the purview of the proposed legislation. Amendments moved on August 7 now include these sections of working women in a sector which has seen the largest increase in the employment of women in urban India.
Vishakha judgment
The Bill comes 15 years after the Supreme Court’s historic and far-reaching Vishakha judgment given by a bench headed by the then Chief Justice of India, J.S Verma, Sujata Manohar and B.N. Kripal in 1997. Vishakha was of great significance in the struggle against sexual harassment at the workplace. But in the absence of a law and a detailed protocol, the guidelines given by the Court have often been ignored or deliberately misinterpreted by employers, particularly in the private sector. Thousands of working women have had to pay the price for the inordinate, unjust delay in bringing the law, for which successive governments at the Centre are accountable.
In the period since the Vishakha judgement, the intensification of neo-liberal policies has had a deep and negative impact leading to changes in the structure of the labour force. This is reflected in the huge increase in the number of casual and contract workers and a decrease in the relative share of regular workers. Even the formal sector is being informalised, putting a large section of workers outside the framework of protective legislation which, in any case, is sought to be dismantled by a pro-corporate government. There is little or no scrutiny of service contracts, particularly those concerning the work and conditions of women workers and employees.
Vulnerability
For example, in the tragic case of Geetika Sharma employed in a business run by a minister it is reported that her service contract had a clause that she had to report to him every evening, indicative of the vulnerability of women employees. Labour contracts for women workers in factories are often highly sexist in nature regarding wage payments and in insisting on single status, not having children and so on. The dilution, if not elimination, of the role of labour inspectors under the Industrial Disputes Act has led to the use of extreme exploitative practices by employers, supervisors and contractors. Thus the Bill to protect working women from sexual harassment comes at a time when the government’s macro-industrial and labour policies have strengthened the very processes which make them vulnerable to sexual harassment in the first place.
There are two important aspects to the Bill. The first aspect is the legal responsibility of the employer, whether government, public sector or private, to provide a safe and conducive environment for the woman worker through implementation of certain clauses and provisions. The onus is on the employer, and if this is not complied with, the employer is liable for punishment including — in cases of repeated violations — cancellation of licences. This is in addition to any other criminal prosecution provided by any other law. The second aspect is the provision of concrete mechanisms and processes to enable an inquiry into individual complaints of sexual harassment and time-bound justice that the complainant has a right to through the formation of committees in the institution she works or, in the case of unorganised sector, through the formation of local committees at various levels under the supervision of the District Collector. Both aspects are critical to the prevention of sexual harassment but it also depends on who is to be included in the purview of the law.
The Vishakha guidelines are clear enough and mandate that “all workplaces” should be included. As is well known, the majority of the female workforce is in the unorganised agricultural sector. This is where there are problems in the Bill. The Bill’s definition of the unorganised sector, taken from the National Commission of Enterprises in the Unorganised Sector Report, is “an enterprise owned by individuals or self-employed workers and engaged in the production or sale of goods or providing service of any kind whatsoever and where the enterprise employs workers, the numbers of such workers is less than ten.” The number of workers was mentioned in the NCEUS definition because enterprises employing over 10 were covered under the provisions of the Factory Act. Thus, this definition of the unorganised sector is more applicable to small or tiny enterprises in manufacturing, trade or service sectors.
Along with this, the NCEUS had very specifically included agricultural sector “enterprises” and its workers within the unorganised sector. However, the word agriculture or agriculture-related work does not figure in the Bill at all. The specification of workers “to be less than ten” would effectively remove landlords and rich peasants owning large tracts of land and employing over 10 agricultural workers from the ambit of the law. The Radhakrishna Commission on statistics in the unorganised sector in its report in February 2012 specifically recommended a separate approach to non-agricultural enterprises and workers employed in agriculture. It pointed out that there is no accepted common definition of the unorganised sector.
In such a situation, the definition in the Bill may well lead to the exclusion of a large section of India’s female workforce and will be a grave and gross injustice. Why should a landlord employing more than 10 workers on his farm not be held responsible for ensuring a safe environment for women? Why should a tribal woman going into the forest to pluck tendu leaves not have the right to a conducive environment guaranteed by the Forest Department? Agricultural women workers are the most vulnerable to sexual harassment. It is essential to end any ambiguity in the definition by specifically including farms and agriculture and related work in the Bill. Additionally, at the time of the framing of the Rules, a more detailed Schedule can be included as recommended by the National Commission for Women and women’s organisations.
The Bill also requires clarity on the inclusion of the armed forces and all paramilitary forces within its purview. With the increasing number of women being employed in the defence services, there is no reason why they should be excluded. Further, since the definition of “aggrieved woman” also includes a woman who is not employed, women who have faced harassment from the armed forces can also access justice through this law. The defence services should therefore be specifically mentioned in the Bill.
Clause 14
The Bill contains a clause which is directly opposed to the Supreme Court guidelines, which had specifically mandated protection of the complainant against victimisation. Clause 14 states that if a complaint is found to be “malicious” or a woman has produced a “misleading document,” she is liable for punishment. This will discourage a victim of sexual harassment from filing a complaint because she risks losing her job. Such a clause also ignores the power equations in cases where the complaint is against her superior which in any case militates against her making a complaint. This clause should be deleted, which was also recommended by the Standing Committee.
Protection for offender
The Bill has a specific clause, 16, that prohibits publication of the identity of the accused even if he is found to be guilty of sexual harassment. It is quite astounding that the government should seek not only to protect such a person’s identity but also punish those who reveal it. One can understand if the concern is limited to protecting the identity of the victim or witnesses or even the respondent during the pendency of the inquiry. But the clause specifically states “the action [after the inquiry] taken by the employer or the district officer under this Act will not be published, communicated or made known to the public, press and media in any manner.” Men like Gopal Kanda, or those in high office guilty of such actions, will no doubt be relieved at such legal protection afforded to their public persona and image by the proposed Bill.
Hopefully, the discussions in Parliament will bring more clarity from the government on these issues.
(Brinda Karat is a member of the Polit Bureau of the Communist Party of India – Marxist.)
