This Article is written by Nashita Nazneen.A from B. S. Abdur Rahman Crescent Institute of Science of Technology.
At present, the sexual harassment at workplace is governed by The Prevention of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act), this is women-centric legislation that has been enacted only for women against sexual harassment at workplace.
In October 2018, social media, print media and electronic media were buzzing with cases of harassment in the entertainment sector. This initiative was taken by actress Tanushree Dutta against actor Nana Patekar. This has exposed many well-known personalities, both female and male. This marked the beginning of public humiliation of perpetrators.
The Landmark judgment of Supreme Court passed in Vishaka vs. State of Rajasthan led to the enactment of POSH Act. An act of sexual harassment done against the will of the employee by the employer is a punishable offence. In other words, it is prejudicial when a lady has sensible grounds to accept that her protest would put her in a disadvantageous position.
In December 2012, the Ministry of Women and Child Development had announced that the government would conduct a study on the kinds of sexual harassment committed by males is prevalent in the workplace. However, its Statement of Objects and Reasons state that enactment of this legislation is to provide a safe workplace environment only to women.
NEED OF GENDER NEUTRALITY:
In 2013, the Centre for Civil Society conducted a study in 96 countries, out of which 63 countries have gender-neutral laws and 6 countries have partly gender-neutral laws. Getting into the details, the same organization conducted another study where approximately 18% of men were coerced or forced to have sex. Out of those, 16% were female perpetrator and 2% were male perpetrator themselves. In countries like Denmark, Italy, Ireland, Finland, France, Germany, Portugal, Spain, Netherlands etc. have gender-neutral harassment laws.
Apart from the gender-specific definitions, the stereotype associated with them is also a concern. A set of fixed notions have stereotyped men. This leads to the non-availability of statistical information. Unlike Protection of Children from Sexual Offences Act, 2012 (POCSO Act) which protects both male and female children from predators, but there is no law to protect male adults. All the sexual harassment laws are women-centric.
- Starting from the definition of employee under Section 2(f), every following provision is discriminatory.
- It is incorrect to assume that only women are victims of sexual harassment. The ministry has no such data to prove that women are the only victims.
- Moreover, these laws only concern and confine to male or female gender and not the transgenders.
- There are certain instances where men claimed to have trapped falsely by women in cases of sexual harassment.
- The false allegations not only exploit their career but ruin their personal life too.
- In a predominantly patriarchal society, the power system is corrupted.
STATUS IN INDIA:
The issue of gender-neutrality was raised in Sudesh Jhaku vs. K.C. Jhaku, a case about rape laws. Justice Jaspal Singh expressed his preference for the offence of rape to be gender-neutral.
Quoting from “Sexism in the Society and the Law – Men who are sexually assaulted shall have the same protection as female victims, and women who sexually assault men should be liable for conviction. Considering rape as a sexual assault rather than as a special crime against women might do much to place rape law from a healthier perspective by reinforcing the status of women as sexual possessions.”
Apart from the justice’s perspective, It is in incongruity to the POSH Act which enables only an “aggrieved women” to file a complaint. However, under University Grants Commission Sexual Harassment Regulations, students of all gender, including males, females and transgender are allowed to file complaints under their respective college Internal Complaints Committee.
In 2018, two petitions were filed in the Supreme Court challenging the constitutionality of Section 354, 354A, 354B, 354D and 375 of Indian Penal code 1860, claiming gender neutrality laws. This petition was not entertained. Subsequently, a petition in the Delhi High Court was dismissed and the above-mentioned sections were challenged for their constitutionality. The court reasoned that the government has considered the Law Commission Report therefore; no amendment can be made as there was no reason to entertain the petition.
After the outrage of Nirbhaya rape case (2013), on July 2019 KTS Tulsi, Parliamentarian and Senior Lawyer had introduced a private members bill being a social issue and not a political issue before Rajya Sabha, proposing to make sexual offence gender-neutral. It proposes to change “man” and “women” to “any person” including transgenders in criminal laws and also to insert Section 375-A for the punishment of Sexual Assault.
The Ministry of Women and Child Development, has proposed amendments in Immoral Traffic (Prevention) Act, 1956, to change the words “his” or “her” to be gender-neutral.
On November 12, 2018, the Supreme Court refused the petition challenging the constitutionality of Section 375 Indian Penal Code which deals with Rape as the Ministry of Home Affairs has clearly stated that Rape cannot be gender-neutral as most victims are women and offenders are men.
The International Labour Organisation had formulated “Convention on Elimination of Violence and Harassment at Workplace, 2019” at the 108th International Labour Conference on 21st June 2019, defining sexual violence occurs irrespective of their sex. It mandated all the UN member states to formulate labour laws as per the above-mentioned mandate. India has failed to ratify this convention currently.
As a citizen or any person for that matter must be treated with equality and dignity. It is not only the duty of the employer to ensure a hostile environment; the employees must also contribute equally. Article 14 of the Constitution guarantees the right to equality, therefore, all genders are considered and treated the same by the court of law. Taking shelter under Article 15 does not deprive men and transgenders of their Article 14 right. Therefore, sexual harassment status quo suffers from the aforementioned infirmities.
- Gaurav Prakash, Advocate Gender Neutrality and Sexual Harassment Laws in India May 3, 2020, https://blog.ipleaders.in/gender-neutrality-and-sexual-harassment-laws-in-india/
- The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 Act no. 14 of 2013
- Vishaka & Ors vs. State of Rajasthan AIR (1997) SC 3011 (India) – Sexual Harassment Landmark Case.
- India Const. Art.14 – Right to Equality.
- India Const. Art.21 – Right to Life.
- Aneesha Mathur, sexual crimes gender neutral Bill introduced in Parliament July 13, 2019, https://www.indiatoday.in/india/story/bill-to-make-sexual-crimes-gender-neutral-introduced-in-parliament-1568504-2019-07-13
- University Grants Commission (Prevention, Prohibition and Redressal of Sexual Harassment of Women Employees and Students in Higher Educational Institutions) Regulations, 2015.
- Violence and Harassment Convention, 2019, June 21, 2019, 108th International Labour Conference.
- Article 2, Violence and Harassment Convention, 2019.
- Article 9, Violence and Harassment Convention, 2019.
- John Stokes, India’s Laws should recognize that men can be raped too. SCROLL, Sept 11, 2014
- Sakshi Raje Is Sexual Harassment gender neutral? Jan 6, 2020, http://lawtimesjournal.in/is-sexual-harassment-gender-neutral/
- Women and Child Development proposed Amendments in Immoral Traffic (Prevention) Act, 1956 https://wcd.nic.in/act/amendment-proposed-immoral-traffic-prevention-act-1956-0
- Sudesh Jhaku vs. K.C. Jhaku (1998) CriLJ 2428 (India)