Sexual harassment has become an increasingly widespread and visible offense in India. Yet, a university professor accused of sexually harassing female college students, escapes institutional censure. A high-ranking police officer publicly slaps a senior IAS officer on her backside and continues to enforce the law unscathed by her complaint. A village level development worker advocating the cause against child marriage is sexually harassed. When authorities fail to heed her complaints she is gang-raped. Female resident doctors are told by an inquiry committee that the sexual affronts made to them by Head of Department were really methods of 'discipline'. Why is it that sexual harassment, which is not new to women, still attracts so little if any serious concern.
One reason it seems is that few let alone understand what women mean when they complain harassment. 'Outraging the modesty of women'(l) or 'insulting the modesty of a women'(2) is the closest we come in law to defining sexual harassment. Often, that has meant nothing short of attempted rape.(3)
Moreover, such provisions have moral overtones. To view sexual harassment as an injury to morality 'is to address it as a case of extreme bad manners though it is the kind of bad manners almost exclusively imposed upon women by men who have the power to get away with it'.(4) It is only when we begin to do something about sexual harassment that we will begin to know more about it. Socially, however, sexual harassment remains invisible. Those facts that amount to sexual harassment are not ever accepted as amounting to sexual harassment because such facts do not socially exist and are without shape. Therefore, they can never empower women with any legal claim. As the examples illustrate, the few who have spoken have still failed to find a space which takes their violation seriously. .
Yet sexual harassment of women has become an issue of growing concern in India especially with the increasing presence of women in the workplace at the urban and rural levels, private and public sectors (Bhotia, 1987: 13). From 1977 to 1989 there was an approximately 24 per cent increase in the number of women working in the rural and urban sectors in India (India Economic Year book, 1995). The fact that women still represent relatively new entrants in the workplace means that they tend to occupy predominantly junior and minority positions. That makes women's position in the workplace precarious from the very beginning. Sexual harassment, therefore, serves to further discredit women in the workplace 'by treating her as a sexual object rather than as a credible co-worker'.(5)
Even under the existing provisions of law, however limited, between 1983 and 1993, the number of molestations increased from 75 in 1983 to 20,194 reported cases in 1990.(6) The latter figure comprised 50 per cent of the total number of crimes against women reported in 1990. In other words, women are exposed to the greater possibility of sexual violence and, therefore, have a greater reason to be concerned about sexual harassment.
In November 1993, the Government of India acknowledged the existence
of sexual harassment as an existing impediment to women's equality and
opportunity (Kishore and Jain, 1993: 1):
...while the existence of this form of discrimination against women has been acknowledged, there has been little concerted effort to evolve an approach or a policy and a law on the subject...
In September 1979, the Government of India further signed the Convention for Elimination of Discrimination Against Women (CEDAW) and subsequently ratified it on July 9,1993. From the time of signing to the time of ratification, several laws were passed and amendments made, incorporating changes which would impact on the rights of women.(7) In terms of sexual violence the most far reaching changes took place from 1983-85.(8) These included, prohibiting the disclosure of a victim of rape without previous permission of the court;(9) the introduction of a law punishing rape in police custody(10) as well as creating a rebuttable presumption in favour of a woman who alleges rape in such circumstances;(11) punishment for cruelty to a women by her husband or the relatives of that husband;(12) enlarging the scope of those who can complain under the Dowry Prohibition Act and making the giving and taking of a dowry a cognisable offence.(13) Irrespective of such legislations, existing laws have failed to recognise the existence of sexual harassment as a form of gender discrimination against women. At most, penal laws were often applied to cases in which an offense amounted to an allegation of attempted rape or something akin thereto. The problem with a strictly penal law approach to sexual harassment is that it seeks to punish an individual wrong rather than alter the discriminatory conduct which is characteristic of sexual harassment. Similar, numerous protective legal provisions available in labour laws are also inadequate to deal with the elimination of sexual harassment at the workplace.
In this regard, the Government of India has realised the absence of any 'specific law which encompasses the subject of sexual harassment in all its dimensions in the Indian jurisprudence'.(14) Further, that 'in the absence of any consensus, the starting point in any discourse would have to be the internationally commonly acceptable definition of sexual harassment...(15)
Such a definition appeared to have been recognised and accepted by the Government of India when it ratified CEDAW in 1993. In its Recommendation on Violence(16) CEDAW presented the possibility of perceiving and understanding violence as women experienc it. In January 1992, the UN Committee on the Eliminahon of Discrimination Against Women adopted the following recommendation: Gender based violence is a form of discrimination which seriously inhibits women's ability to enjoy rights and freedoms in the basis of equality with men ,.(17) The recommendation found 'sexual harassment' as one such expression of sex discrimination and went on to define the same:
22. Equality in employment can be seriously impaired when women are subjected to gender specific violence, such as sexual harassment in the workplace.
23. Sexual harassment includes such unwelcome sexually determined haviour as physical contacts and advances, sexually coloured remarks,showing pornography and sexual demands, whether by words or actions. Such conduct can be humiliating and may constitute a health and safety problem; it is discriminatory when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment, including recruiting or promotion, or when it creates a hostile working environment. Effective complaints procedures and remedies, including compensation, should be Provided.(18)
In 1992 the International Labour Organisation published a special volume on sexual harassment in its Conditions of Work Digest setting out the broad parameters for defining sexual harassment in the workplace. According to such parameters, the critical aspect of sexual harassment was described as that 'conduct which is unwanted by the recipient'. A definition which helps to draw the line between flirtatious, romantic behaviour and sexual harassment is
Sexual attention becomes sexual harassment when it is unwelcome Within these broad parameters sexual harassment is essentially a subjective concept: it is for each individual to decide what does and what does not offend them.
Behaviour which, therefore seems, amusing or harmless to some may be offensive to others. To many, particularly men, this will appear as yet another unnecessary restraint on behaviour which is otherwise perceived as 'normal', a reason why women's complaints have often been dismissed as vindictive fantasies or wishful thinking.
In many parts of the world, however, including the Asian region (India
being one of the exceptions), sexual harassment has, in fact, been described
in the following terms (philippines, 1994):
But a few requirements are clear. An onus must be placed on State Governments to publicly recognise that women are systematically vulnerable to various forms of sexual abuse given the nature of the work they do in such state-run programmes. State Governments must ensure that the rights of women in the 'workplace' are free from this kind of abuse. Failure to do so as well as failure to provide necessary and prompt support to redress the wrong done to her, will amount to discrimination based on gender for which the State must pay compensation to the abused women. In any event the State must pay interim compensation to the woman for any economic loss resulting from the abuse. In the case of the Saathin the community had imposed an economic boycott against her being aggrieved by the public exposure caused to them. Her husband has been compelled to stay at home to protect her, and is, therefore, unemployed. Finally, the State Government must consider establishing a larger scheme to deal comprehensively with complaints of sexual harassment, legal action, the cost of counselling the victim, and compensation.
For feminists the case is yet another instance for demanding that the
promise of equal protection of the laws be delivered. Women are sexually
harassed by men because they are women, that is sexual harassment is discrimination
based on sex. As awareness increases on the issue and on women's rights
overall, much can be done at the workplace itself by employers and trade
unions, with the assistance of governmental and non-governmental organisations
to change this social behaviour. Both employers and trade unions must increasingly
treat sexual harassment as a legitimate concern by taking steps for preventive
action. These steps should include amongst other things:
...accompanied by a programme of development of legal literacy on the subject and its dissemination so as to raise the levels of awareness...NGOs would have to be involved extensively to function in a watchdog and counseling role with respect to the victims of sexual harassment. Thus the law which has to be evolved would have to be preventive in its character as well as punitive. It would also have to be examined whether such a law should provide for compensation and rehabilitation of victims...As far as the formal organised sector is concerned, employers and employees organisations have to build in specific provisions against sexual harassment in the agreements between these two parties. These would perhaps have to be enshrined on the concerned laws on the subject. As far as the unorganized sector is concerned, since unorganised workers have no representation and have very little access to information and solidarity, they would have to be approached through NGOs and the government machinery.
By and large it is clear, that redress through law and Iegal amendments is not enough. The objective of sexual harassment policies is to influence attitudes and promote changes in attitudes towards women and sex discrimination in the workplace. The words of an American judge says just that.
The sexual harassment plaintiff is typically subjected to further or intensified harassment as she pursues her claim, and her relationships with both men and women in the workplace may be severed beyond repair, a form of damage that even legal victory cannot undo. Moreover, changes in behaviour that are compelled by judicial decree, rather than voluntarily introduced and advocated by the employer, may produce lingering resentment among male workers that affects not only their receptivity to subsequent female co-workers, but also their behaviour toward the other women in their lives. Strategies to end sexual harassment should not require all women to make the difficult choice enduring continued harassment and seeking costly victory in the courts.
Litigation can also be a comparatively blunt tool for producing changes in workplace norms. Judgements, and even opinions, in sexual harassment cases give employers only an anecdotal notion of what behaviour is unacceptable, and otherwise fail to direct employers toward more satisfactory behaviour. Nor do these decisions, in and of themselves, organise or educate employees to produce the necessary changes in conduct. An adverse judgment may also put. supervisors on the defensive rather than engaging them as participants in bringing about change. For the protection of women and the education of those who victimise them, it is necessary to explore less coercive means of normative changes.
The most important tool in the prevention of sexual harassment is the education of both the employees and employers.(20)
If just one iota of this happens, for the first time, sexual harassment of working women will cease to remain invisible. Sexual harassment will be seen as sex discrimination which comprehends that working women, whether in the rural or urban areas, private or public sectors, while wanting to be equal are different too.
1. See Section 354, Indian Penal Code, 1860.
2. See Section 509 Indian Penal Code, 1860.
3. See 1984 Cr.L.J. 786; 1984 Cr.L.J. 1254; AIR 1992 SC 2043; 1991 Cr.L.J. 411; 1989 Cr.L.J. 383 H.P.
4. Catherine Mckinnon Sexual Harassment at Work, 1987.
5. Theresa Lehmann
vs. Toys 'R' Us; Supreme Court of New Jersey 132 N.J. 587, 626 A,
2d 225; 1993 N.J.
Lexis 712; 63 Fair Empl. Prac.Cas (BNA) 242; 641 Empl. Prac.
Dec. (CCH) p. 43, 016 at pp. 12 para 615.
6. Parliamentary Question No, 2844, Lok Sabha, Mr. M.M. Jacob.
7. These included
the following: The Indecent Representation of Women (Prohibition)
Act, 1986; The Equal
Remuneration Act, 1976 (amended
in 1987); Commission of Sati (Prevention)Act, 1987; Andhra Pradesh
Devadasi (Prohibition
of Dedication)Act, 1988; The Maternity Benefit (Amendment)
Act, 1988; The
Criminal Law (Amendment) Act, 1983,
which made several amendments to the Indian Penal Code (Sections
228-A,376B, 376C and 376D), the Code
ofCriminal Procedure, 1973 (Section 327 amended) and the Indian
Evidence Act, 1972 (Section 114A)
in respect of rape; The dowry Prohibition Amendment Act, 1984;
The
Criminal Law (Second Amendment) Act,
1983 and The Dowry Prohibition (Amendment) Act, 1986 which made
several amendments in the Indian Penal
Code (Sections 304-8 and 498-A), the Indian Evidence
Act
(Sections113-A and 113-8)
and the Criminal Procedure Code, 1973 (Sections 174, 198-A) in respect
of
dowry; and The Muslim Women
(Protection of Rights on Divorce) Act, 1986.
8. See the Criminal
Law (Amendment) Act, 1983; the Criminal Law (Second Amendment) Act,
1983; the Dowry
Prohibition (Amendment) Act,
1984, and the Family Courts Act, 1984.
9. Section 228A Indian Penal Code, 1860.
10. Section 376(2)(a) Indian Penal Code, 1860.
11. Section 11 4A, Indian Evidence Act, 1872.
12. Section 498A Indian Penal Code, 1860.
13. Section 8, Dowry Prohibition Act, 1961.
14. Ibid, pp.2.
15. Ibid, pp.3.
16. General Recommendation
No.19 of the Committee on the Elimination of Discrimination Against
Women,
Eleventh session,
New York, 20-31 January, 1992. Item 7 of the agenda (CEDAW document
CEDAW/C/1992/L.
1 Add. 15, 29.1.92).
17. Ibid, pp.1.
18. Ibid, pp.5.
19. See Vishaka
and others vs. State of Rajasthan and others (Criminal Original
Jurisdiction, Writ Petition
(Crl) No.666-70 of 1992).
20. Lehmann vs.
Us, Inc. 132 N.J. 587.
Kishore, R.
: Combating Sexual Harassment at Work (Country
and Jain, S. Paper, India), Manila: International Labour
1993 Organisation.
Philippines:
: Republic Act No.7877 -An Act Declaring Sexual
Congress of
Harassment Unlawful in the Employment,
Philippines
Education or Training environment,
Metro
Environment for Other Purposes, Manila.
1994