The Legal Regulation of Sexuality: A Double-Edged Sword by Ratna Kapur, Shomona Khanna & Shohini Ghosh of the Feminist Legal Research Centre

The recent Supreme Court decision in Vishaka v. the State of Rajasthan (August 1997) sets out guidelines on sexual harassment in the work place. The legal definition of sexual harassment provided by the Court is as follows:
 
 
"…sexual harassment includes such 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
 
Any other unwelcome physical, verbal or non-verbal conduct of a sexual nature."
 
 

 

The Court places an obligation on employers, in both the public and private sector to "take appropriate steps to prevent sexual harassment" and "provide appropriate penalties" against the offender. The criminal law should be resorted to where the behaviour amounts to a specific offence under the Indian Penal Code. The Court also recommends that a complaint mechanism is created in the employer’s organization for redressal of the complaint made by the victim and that such a committee should be headed by a woman, and not less than half its members should be women.

 

The Vishaka judgement is significant at a symbolic level for its validation of the problem of sexual harassment and recognition of the fact that it is an experience many women are almost routinely subjected to in the work place. As regards the definition, there are no doubt certain clear cases of sexual conduct that constitute sexual harassment – for instance, what has been called quid pro quo sexual harassment, in which a threat is made or a benefit offered in order to obtain sex. The employer who tells his office manager that she will receive promotion if she has sex with him, and the professor who informs his student that she will not pass the class unless she goes on a date with him are engaging in this type of sexual harassment. In these situations, certain individuals use their position of relative power to coerce or intimidate others in positions of lesser power to engage in sexual interactions. This type of behaviour, clearly constitutes sex discrimination and a remedy ought to be made available to the woman who is harmed.

 

The Supreme Court attempts to incorporate this experience into the law, and redefine the lines between legitimate sexual behaviour, to better capture women’s experience of consent. We are of the view that this is a good thing, but are interested in raising for debate the recommendation by the Court to formulate codes, as well as the broader implications of this decision on women’s rights. We are concerned about the breadth of the definition and the type of behaviour that is deemed to constitute sexual harassment. We are also concerned about the implications of the decision on sexual behaviour more generally, and women’s sexual behaviour and conduct more specifically. Our concerns must be considered within the broader political and cultural context. This context presently includes a conservative sexual morality, a BJP government at the Centre as well as the increasing assertion of a cultural nationalism that regards sex and sexuality, their current representations and practices, as external contaminants which are eroding "Indian cultural values and ethos."

 

Regulating Women’s Sexual Conduct?
Our primary concern is the impact of the harassment guidance on women’s human rights and sexual behaviour. Harassment is contingent on proving that the sexual behaviour or conduct in question was unwelcome. But, the history of the legal regulation of sexuality should lead us to at least question the way in which conduct is likely to be judged. For example, in rape trials, the courts have long focused on women’s conduct in attempting to determine whether or not there was consent. And in the absence of "reasonable resistance", the courts have over and over again concluded that the woman must have consented.

There is reason to be concerned that a woman’s conduct in the context of allegations of sexual harassment may be judged in similarly problematic ways (even though the standard of proof will presumably be less stringent than the criminal standard). A woman’s conduct will be key in determining whether or not the sexual behaviour is welcome or unwelcome. Her dress, speech, demur, personal history and relationship with the harasser will all be called into question to determine whether or not the sexual conduct in question was indeed unwelcome.

 

The Role of the Criminal Law
The Court does not suggest that the wrong of sexual harassment be treated as a criminal offence. And we endorse an approach that the criminal law has only a limited role to play in regulating sexual conduct. Historically, it has been seen that resorting to the criminal law ends up empowering the state and its institutions, rather than empowering women. However, the Court makes specific reference to the fact that the criminal law should be resorted to where the behaviour amounts to a specific offence under the Indian Penal Code. Several provisions under the Indian Penal Code that refer to women’s chastity and modesty, have been critiqued by feminists and others as being based on an outmoded sexual morality. Unfortunately, several Delhi based women’s groups have recently advocated the use of these provisions as a means to counter a range of sexual behaviour from such obvious harms as rape to less obvious harms such as singing a song or staring. These provisions include section 354 (assault or criminal force against a woman with intent to outrage her modesty), and section 509 (words, gestures or acts intended to insult the modesty of a woman).

 

It is ironic that provisions based on outmoded Victorian notions of sexual morality are being uncritically invoked to protect women from sexual harm. On the one hand, rape is clearly the sort of sexual harm that needs to be punished by the criminal law. However, appealing to the repressive power of the criminal law to stop an individual from singing a song or staring is a bit of overkill. Taking recourse of notions of outraging a woman’s modesty does nothing to advance woman’s rights to bodily integrity or sexual autonomy, but reinforce notions of sexual purity and honour. This is not to suggest that staring and the singing of songs do not, at times, constitute sexual harassment. But we need to ask ourselves whether invoking the criminal law is the right place to start or, more importantly, whether it can change behaviour or help woman at the end of the day. Or are we content to have the State, in particular, the police monitor the sexual behaviour of its citizens using the blunt instrument of the criminal law? The criminal law does not have a history of helping women. On the contrary, it has a long history of hurting women. Mathura’s case, Suman Rani’s case and Bhanwari Devi’s case are but a few well know examples. Are we content with pursuing a criminal law strategy in the hope that one day we will succeed, or do we want to take a step back and critically reflect upon what women have gained or lost by resorting to the criminal law for redressing sexual harms?

 

Employer Drafted Codes
Another associated concern is the fact that the codes to prevent sexual harassment are to be formulated by the employer. If the power to evolve these codes is to be in the hands of the employer, then given the conservative sexual climate in which we live, what is to prevent the employer from producing a code that encourages gender segregation in the workplace. As one retired judge recently remarked, the codes could be formulated so as to discourage gender interaction in the workplace, or encourage the establishment of same sex schools and universities instead of co-educational institutions. Perhaps more specific guidelines are required which provide that such sex segregation is not an appropriate response for dealing with sexual harassment. Employer liability for sexual harassment could also discourage employers from employing women. Of course, this argument can be a double edged sword as it can be used to argue against affirmative action measures more generally that are designed to provide substantive equality to those who have been historically discriminated against and excluded from the market. The point here is simply that the sexual harassment cannot be discussed outside of the social climate in which it operates and the manner in which it mediates/determines sexual behaviour.

 

Given the conservative and censorious sexual environment in which we live, we submit that the codes will be drafted and/or used in a way that will intensify the moral regulation of sexual behaviour. CFLR has conducted a preliminary survey of the possible implications of sex codes in four university campuses that the currently discussing this issue. The concerns of those that favour a code range from the fact that campus rapes go unnoticed and are not effectively addressed, to the view that the campuses should not be sexual space per se. The former concern is already addressed by the Indian Penal Code under the rape provisions. The fact that these provisions have not been effective is no a reason to further regulate sexual behaviour. (see CFLR Memorandum on the Reform of Laws Relating to Sexual Offences, March 1998). In the latter case, if sexual activity on campus is to be completely impermissible, then the university should make such a declaration. However, it is our belief that people will oppose such regulations or declarations as they will discourage rather than encourage dialogue between the sexes, and therefore be undesirable.

 

What happened to Sexual Rights?
A further concern emerging through our tentative survey is that when people are asked to identify sexual wrongs, their lists are endless. However, when they are asked to identify sexual rights, that is what kind of sexual conduct should be allowed on campus, there is a debilitating silence. The inability to speak about consensual sexual relationships, or consensual sex is not new. But things are changing. Television and radio talk shows bear witness to the opening up of sexual speech and the articulation of "sexual rights". Some examples of these include Bindaas Bol, Balance Barabar, and Kaam Ki Batein. Such a development needs to be encouraged, not curbed. However, we are of the view that rules and regulations concerned with prohibiting or regulating sexual conduct will serve to reinforce the idea that sex per se is a bad or dirty practice from which good and decent people ought to be protected. Such regulations will reinforce the stigma associated with sex (whether consensual/welcome or non-consensual/unwelcome).

 

And things are not going to get better under a BJP regime. Indeed, there is now a greater urgency to articulate women’s sexual rights of sexual minorities within such a context, as they are so vulnerable to restrictions and curtailment. A prime example is in the context of the Information and Broadcasting ministry, and Sushma Swaraj’s controversial effort to impose a dress code on female news readers during the BJP’s 13-day regime in 1996 or her current effort to prohibit condom advertisements between the sheets. Remember also the recent disapproval expressed by the mayor of Delhi, Shakuntala Arya, of hugging and kissing in public, which she regards as a debauched Western practice. Suggestions that the definition of sexual harassment is deficient and recommendations to the National Commission of Women that "sexual favours…sought by homosexual or lesbian employers from employees of the same sex" also be included, seem to validate our concerns that the sexual morality. And the current right wing context will only intensify this approach.

 

A Tool for Censors?
Another concern is the extent to which sexual harassment laws and odes will end up being a tool in the hands of the censors. The application of these laws in other jurisdictions has revealed that sexual harassment is a lot more about sexuality and a lot less about harassment than might first appear. The experience of a hostile work environment depends on the subjective experience of the complainant. If the complainant is offended by picture of the Mohenjodaro dancing girl put into a diary, or the display of M.F. Hussian’s nude Saraswati, under such codes, it can be removed for offending the sensitivities of the employee. These examples are all too recent and too real for us to ignore.

We need to learn from our experiences in lobbying for reforms in the rape law and domestic violence laws. The law or legal regulations will not be interpreted according to a feminist understanding. The meaning ascribed to such rules will depend on the traditional perceptions about sex and sexuality, in particular, female sexuality. We need to question whether we are not arguing for sexual rights from the wrong end of the stick in constantly focussing our arguments on the need for curtailment and restriction of sexual behaviour and conduct. Are such arguments not more appealing and seductive to those in favour of a more puritanical sexual environment?

 

Questions for Debate
We need to promote a culture of sexual rights that women are entitled to enjoy, and our efforts should consciously be directed towards that end, and not focussed exclusively on sexual wrongs. This would include the right to bodily integrity, the right to sexual autonomy, the right to freedom of association, and the right to freedom of expression, which includes speech and attire. Arguing in favour of rights at the end of the day is a necessary step towards women’s empowerment. Without it, any argument in favour of sexual restrictions will invite greater moral surveillance and state scrutiny of the citizens’ sexual behaviour.

 

The questions that still require greater debate amongst lawyers, judges, human rights, and women’s groups, is that in constantly raising issues of sex and sexuality in the context of violence, harm or injury, are we not just reinforcing the stigma associated with sex and the broader attitudes towards sex as something bad and corrupting? What is the responsibility of these different constituencies towards contributing to the creation of a healthy sexual environment, by supporting women’s sexual rights? The Vishaka judgement marks an important first step in addressing concerns that affect most women. There is a need to ensure that women’s rights to equality in the workplace are not secured at the cost of or set up in opposition to their rights to sexual autonomy, freedom of speech and association. The questions being raised in this article are intended to ensure that sexual harassment concerns are effectively addressed in support of and not at the cost of women’s human rights.

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