-by Naina Kapur (Advocate, Supreme court of India)
  and Rita Rupal from UK.

Naina Kapur: In India, we do not have a sexual harassment law. We have provisions in the Indian Penal code such as outraging the modesty of a woman or insulting the modesty of women. these provisons are, by and large, used in cases where you have a situation which is almost akin to rape. The first time, it came up inthe Supreme Court, the response we got was that it is a western phenomenon. In the case of *Rupen Deol Bajaj Vs. K.P.S.Gill , the court has interpreted outraging the modesty to include the slap he gave to her posterior. But it still has to be obvious thing and it is not an intangible act which, often, is more characteristic of sexual harassment.

Bhanwari Devi had tried to prevent child marriage in the district and the local authority took no action on her complaint. They already had knowledge of the fact that she was being harassed. She was being subjected to a certain kind of abuse and the negligence of authorities was a factor in her being gang-raped. Now, the writ petition is looking at a number of things.It is looking for guidelines on sexual harassment which are both, remedial as well as preventive. I think we have enough laws  which we do not even interpret those properly. I totally agree with the need for sensitising the judiciary and until you do that, there is no point in having law reforms.

We have substantive laws that exist, even about outraging of the modesty, retrogate as the language is. If you want to give it a wider interpretation, you can; it is entirely upto the judiciary to interpret that way. We have the same problem with the definitation of rape as penetration by penis. We do not expand the concept of rape beyond specific body parts.

The Convention on Elimination of Discrimination Against Women (CEDAW) came into existence in 1979 and in 1993, the Government of India ratified it. But it was not until 1992, the Convention actually acknowledged violence against women as discrimination, through a recommendation. Sexual harassment was also perceived to be one aspect of violence against women, which is discriminatory, which restricts her movement within the workplace, because of certain stereotypes, certain environment, and certain attitudes as a result of which, she cannot exercise her rights as a worker, freely. Sexual harassment is an aspect of violence against women.

Also, under the Constitution, there is a provision under Article 15(3) which says that the State has a right to make special provisions for women and children. We used CEDAW as a special provision. CEDAW extends itself not only to the public, but to the private firm as well. We have said that sexual harassment, which I think, the court has acknowledged, exists not just in government  institutions, but across the board. So, you have to allow for these guidelines to be implemented in private institutions also; that includes university campuses and other educational or religious institutions.

Definition of sexual harassment primarily from the Convention is:
 

Sexual harassment shall include such unwelcome sexually-determined behaviours, such as physical contacts and advances, sexually coloured remarks and innuendo, showing pornography and making demands, whether by words or by actions, directly or indiretly. Such conduct can be humiliating and may constitute a health and safety problem.

The big fear is that once you have laws against sexual harassment, you will have a flood of litigation. Taht will never happen. It has not happened in rape, it has not happened in any other crime that effects women. And even when it has, the conviction rate is extremely low.

The other thing we have said is that an employer or any person in a position of trust or moral ascendancy actually has  the onus of putting these guidelines into effect. For example, if you have a State women's programme, they should have guidelines in existence. The guidelines must specify what is sexual harassment and expressly prohibit it; affirmatively raise the issue of sexual harassment with women as well as co-workers; develop appropriate sanctions against offenders; and inform people of their rights to raise the issue and create a forum within that environment to which a woman can go and actually complain about that issue. That environment should allow for an impartial person or people, to hear her case and have several alternatives for action. In some situation, it may be remedial, the offending man may be transferred. A lot depends on what the woman wants.

We have to look at the establishment of an in-house complaints committee. There should be special counsellers who can also address women in terms of the psychological, emotional and other impacts that follow the sexual harassment like medical counselling, confidentiality and a time-bound redress. They have to take action within a certain period of time and if, they do not, that is when I think you have to turn to legal redress.

The rest of the remedies are damages, compensation, and so on. We are, therefore, trying to introduce CEDAW through the Supreme Court which, when it comes through, will give sanction to a lot of other issues which are discriminatory.

Rita Rupal: Sexual harassment is the same for women everywhere, in any country. It is the major issue for women at some point of their paid working life. Millions of women are faced with working environments polluted by sexual misconduct. This affects their job performance and working relationships and poses a risk to their health and safety. Most women hate to say what the concept of sexual harassment means to them. There is no absolute definition of sexual harassment. The Eurepoean Commission Court of Justice defines it as `unwanted conduct of a sexual nature or other conduct based on sex affecting the dignity of women and men at work'. What is actually important to note is that sexual harassment is unwanted, uninvited and unreciprocated conduct of sexual nature. It includes physical, verbal and non-verbal conduct, such as statements which are felt as an insult, jokes of a sexual or derogatory nature, threatening or obscene language, promises of threat concerning employment conditions in exchange for sexual favours, unwelcome sexual invitations or pressure, and offensive materials which are seen to degrade or offend, such as pornographic pictures or badges or graffiti. It  could include touching, pinching, physical actions which intimidate or embarrass, for example whistling, suggestive gestures, physical sexual advances, assault, indecent assault or rape.

What is very important for women in this sort of situation is, that thye are believed and that they have support. Sexual attention becomes sexual harassment when it is unwelcome. Broadly speaking, it is upto the recipient to determine that. It is the impact of the conduct, and not the intent of the perpetrator that is the determinant.

Sexual harassment is about abuse of power. An overwhelming  number of women get abused. Sexual harassment is about discrimination on the grounds of sex within the meaning of the UK Sex Discrimination Act. The gender of the recipient is a determining factor. Men in the same or similar situations  are not sexually harassed. Equal treatment law focuses on whether a man was treated or would have been treated in the same way. The unequal treatment is on the grounds of gender.

Certain categories of women are actually more vulnerable to sexual harassment. For instance, women who are single, divorced, separated or widowed ; single parents; women from minority ethnic groups; women who have a physical or non-physical disability ; women working in predominately male jobs; and new entrants to the workforce. Women are often not sure what is sexual harassment or whether it is part of the work culture. This factor can be very very disempowering for them.

The main statutes that outline sexual hrassment in theUK are the *Sex Discrimination Act, 1975, and also the **Employment Protection Consolidation Act, 1978, which provides a remedy for unfair dismissal as part of or in addition to sexual harassment. There is also the ***Health Safety and Welfare at work Act, under which all employers are at an obligation to provide a safe working environment for their employees. If they fail to do so, one can sue the employer in the High Court or in the country court. In cases of physical assault or rape, it may be possible to bring civil or criminal proceedings against the perpetrator as well. Section 41 of the Sex Discrimination Act holds the employer responsible for anything done by any of the employees. It  can take something like two years for a case to come to an industrial tribunal during which time, unless the woman has left her workplace, she could face continual harassment or victimisation. Besides, specifically in sexual harassment cases, the women are faced with further abuse as they have to go through the whole traumatic event again. The woman's sexual history should not be considered in sexual harassment cases. There is no obligation to have a woman on the panel of the tribunal and the time limit is only three months from the date of the incident of harassment which is not very long. There is also no legal aid for tribunal representation. There is advice, and assistance but no representation and it has been shown that you are far more likely to succeed in winning a case, if you have some sort of legal or specialist representation. There are also no reporting restrictions on Sexual harassment cases.

Every organsiation should have a sexual harassment policy which should be incorporated into an equal opportiunities policy of that organisation. Having a policy which enables women to complain can laos mean that sexual harassment could be prevented  inthe first place. In organisations where there are no sexual harassment complaints procedure, people use the grievance procedure. There should be both formal and informal procedures. The management needs to be led by example to change attitudes and culture to create a workplace that offers equality to all its workforce.
  

CED references:
a) (collection of documents in Electronic form)
        Rupen Deol Bajaj Vs. K.P.S. Gill
 

*      Sex Discrimination Act, 1975
**    Employment Protection Consolidation Act, 1978
**    Health Safety and Welfare at work Act
 
 

b) (Books, Reports, Journal articles)