Sexual harassment law
MAITREYI KRISHNAN and PONNI ARASU
THE following paper critically analyses the position of women in the unorganized sector vis-à-vis sexual harassment and its redressal. The first part reviews the history and context of feminist legal struggles in general and specifically around sexual harassment in an attempt to place the discourse on ‘sexual harassment’ within women’s movements in a historical context. The second part reviews all the laws (current and prospective) and the Vishaka guidelines to comment on the legal position of sexual harassment at the workplace as it stands today. The last part examines the criticisms of law around sexual harassment – a more general feminist critique of law as an activist strategy, through the perspective of women in the unorganized sector. It attempts to use the current legal position of women in the unorganized sector vis-à-vis sexual harassment to advance a broader critique of the discourse on sexual harassment as well as the processes of interaction of feminism and law in India.
The campaign around the Vishaka judgment arose in the context of violence being recognised as a significant analytical frame within feminist activism in India. Sati, rape, dowry and a whole set of family laws have been sites for debate and legal campaigns within women’s struggles in India. Further, law is seen as a significant tool and marker of change within feminist activism in India. It came in an era when feminist legislation was being framed and fought for and many of these struggles resulted in what was viewed as ‘positive legislation’ from the perspective of women’s rights.
The Vishaka case was a class action petition brought by a number of social action groups and non-governmental organizations, seeking legal redress for sexual harassment of women at the workplace. The Supreme Court in 1997 ruled that sexual harassment at the workplace violated women’s rights to equality and that employers have an obligation to take steps towards its prevention and proper action when it occurs.
Equally of importance is the history of struggle of the workers in the unorganized sector. The struggles of women in the unorganized sector first came into focus in the early ’90s, starting with the unionization of workers in professions within the unorganized sector which included only or mostly women.
It is interesting that the struggle around sexual harassment at the workplace coincides almost entirely with the establishment of workers fora in the unorganized sector.
It is in the background of a general focus on women-centred legislation, the emergence of the unorganized sector and significant economic changes in terms of the structural readjustment programmes that we need to locate our discussion of sexual harassment, specifically in the unorganized sector.
By the late nineties, feminist critiques of this focus on legislation had begun to evolve. This had a significant impact on the process of feminist struggles around legislation as well as feminist legal theory in India. Many of these debates will echo both within the discussions about sexual harassment at the workplace and more specifically, on sexual harassment in the unorganized sector.
This section looks at the law on sexual harassment as laid down by the Vishaka judgment and the proposed bill, which looks to expand it. Prior to the judgment the only recourse available to a ‘sexually harassed’ person was to take criminal action under the Indian Penal Code through provisions that penalise acts of an obscene nature,1 the insulting and the outraging of the modesty of a woman,2 and the indecent representation of women through any form of publication.3
The primary difficulty with this remedy lies in the accessibility and efficiency of criminal courts. Further, the burden of proof placed on the woman is very high. Conviction of the accused would require simultaneous satisfaction of two conditions – first, that the complainant possesses ‘modesty’ that could be outraged and second, that the accused has ‘beyond reasonable doubt’ insulted or out-raged it.
The Vishaka judgment looked to fill the void left by the absence of a law on sexual harassment at the workplace and drafted guidelines that serve as the law until a specific legislation comes into force. Presently, there is a Protection of Women Against Sexual Harassment at Workplace Bill, 20074 which seeks to legislate on sexual harassment at the workplace and to enlarge the applicability of the guidelines.
The basis for the Vishaka guidelines lie in its reading the provision of a ‘safe’ working environment where sexual harassment is prevented and suitably dealt with into the fundamental right to life (Article 21),5 equality (Article 14, 15)6 and the right to carry on any occupation, trade or profession (Article 19).7 Through such reading, it enlarges the role of the institution/employer, treating them as responsible for any sexual harassment that takes place at work.
The main feature of both the guidelines and the bill is the placing of the responsibility of the prevention and redressal of sexual harassment8 on the employer/institution. Preventive steps, including the formulation of a policy prohibiting sexual harassment, the publication and circulation of the policy and the spreading of awareness, are to be taken by the employer. The employer is to establish a complaints committee to hear cases of sexual harassment. The complaints committee is to be adequately represented and headed by a woman.9 It has the power to recommend disciplinary action against the perpetrator and/or the payment of compensation to the complainant, both of which are to be enforced by the employer.10 The Vishaka guidelines attempt to safeguard the complainant from possible threats to her employment conditions by prohibiting any discrimination against her during the period of the trial. It also allows for the transfer of the complainant or the perpetrator during the period of the trial, at the request of the complainant. The proposed bill, however, acts contrary to safeguarding the complainant where it provides for penalising the complainant if the committee concludes that the allegation made is false or malicious.11
One limitation of the Vishaka guidelines is that they are applicable only to an organized office set-up, and not to the unorganized sector where the employer-employee relationship is not fixed. The bill tries to amend this by making specific provision for the inclusion of the unorganized sector, through the setting up of a local complaints committee which is to act as a redressal mechanism outside of the institution.12 This local committee is to look into complaints in places where the workplace has no internal complaints committee, in any unorganized sector, or in cases where the allegation of sexual harassment is against the employer. It must also be mentioned that another bill to regulate conditions of work and provide social security to the unorganized sector,13 provides for redressal in cases of complaints of sexual harassment both against a co-worker as well as the employer himself.
An inadequacy of the proposed sexual harassment bill is the failure to provide for any initiatives arising from the workers, which has been addressed by the Vishaka guidelines through the provision of ‘workers’ initiatives’. It gives employees the right to raise issues of sexual harassment at workers meetings, employer-employee meetings and in other appropriate fora.
In the context of the above review of laws and social movements in relation to sexual harassment, we can specifically look at the position of women workers in the unorganized sector and highlight ways in which they critique as well as confirm law and social discourse around sexual harassment. Further, we point to directions of rethinking these legal and social trends through an analysis of the position of unorganized sector female workers vis-à-vis sexual harassment.
At the very outset, it may be noted that the current legal position of sexual harassment after the framing of the Vishaka guidelines does not include any workers outside of an office setting. Thus, 90% of women in India, employed in the unorganized sector are outside the purview of the guidelines. Nevertheless, it is important to think about sexual harassment from the perspective of women in the unorganized sector because the pending bill on sexual harassment at the workplace affects them as well. Equally, it can be an effective tool to push the boundaries on the subject of sexual harassment and ask significant conceptual questions.
Some of the criticisms of the Vishaka guidelines become apparent when viewed from the perspective of women in the unorganized sector. According to the guidelines, the onus of both taking preventive measures as well as ensuring redressal mechanisms is on the employer. However, many enterprises (within the unorganized sector) involve only two persons at a workplace; the employer and employee. Even in a situation of multiple workers, such as that of a contract labourer, the position and responsibility of an employer is informal.
In the case of a single employer and employee, this onus has no meaning whatsoever, making the entire provision irrelevant. In the proposed sexual harassment bill though, this has been addressed to some extent, as a local committee will address issues relating to sexual harassment in the unorganized sector. However, this merely shifts the onus from the employer to the state. Workers still remain outside the purview.
The lack of formal systems in the unorganized sector highlight yet another limitation of the Vishaka guidelines relating to the absence of labour safeguards. Complaining about sexual harassment is a serious step for any working woman, as it invariably increases the chances of discrimination or termination of work during or after the trial. This is heightened in the case of women in the unorganized sector due to the informal nature of their employment. Also while labour laws provide safeguards which protect an employee from termination or any other discrimination during the course of any dispute, these safeguards do not extend to cases of disputes relating to sexual harassment.
Safeguards against discrimination after the dispute is adjudged are in general inadequate and abysmal with regard to cases involving sexual harassment. For women in the unorganized sector, this lack of safeguards regarding sexual harassment further adds to their already fragile position as workers.
Yet another aspect that often comes into play is the supposed neutrality of the guidelines and thus the redressal board which do not take into consideration various sets of hierarchies within the workspace, be they of rank or post or other social hierarchies relating to caste or class at the workspace. The Vishaka judgment makes no distinction in trial procedure or execution based on rank of the complainant and defender. The legal language around sexual harassment takes into account only differences based on gender and not any other.
In various situations, such as colleges/universities, we have seen other forms of difference playing a part in various everyday interactions between men and women. This influence then extends to sexual harassment. The guidelines and the board set-up do not provide any space to address these differences in the context of sexual harassment. This criticism is less about the guidelines or the boards and more about the ‘social life’14 of sexual harassment as constructed by the law. The current definition is largely what the law has given us and is limited and simplistic, leaving out the nuances of the perceptions of sexual harassment.
The implications of caste and/or class in the organized and unorganized sectors are different. It is important, however, to keep in mind that the unorganized sector also encompasses certain professions that are deeply ingrained in the caste background of the workers. Manual scavenging is one such example. A simplistic definition of sexual harassment, which does not accommodate related discrimination based on caste/class, formulated by the law, and espoused by activists and other stakeholders, curbs precisely this layered understanding which might have otherwise led to more comprehensive legal interventions.
Various feminist scholars have framed important conceptual criticisms of the laws around sexual harassment. Both the understanding of sexual harassment and the law give rise to a system of policing of male-female relationships and rules of conduct at the workplace. ‘Indeed the definition (of sexual harassment) seems to provide scope for reproducing and reinforcing dominant assumptions about sex, women’s sexuality and sexual practices.’15
Ratna Kapur’s argument above raises some significant questions and identifies the moral universe within which sexual harassment is often placed. Both the complaint and the defence are a morally charged exercise, quite unlike any other form of complaint within the workspace. This is because of the moral implications for both the complainant and the defendant. The very utterance of anything related to the ‘sexual’ brings with it assertions about the ‘character’ of those involved. In this case it would affect the complainant and the defendant in two entirely different ways. This process often reconstitutes the workspace for the woman who complains of harassment in a significant manner and provides space for discomfort and even further violence.
In the unorganized sector, this reconstitution might also mean a formidable change in economic and/or labour relations on a daily basis. The ad hoc nature of work in the unorganized sector may increase the likelihood of this reconstitution, leading to lack of further work in the future or loss of present work. Following this argument, one can contend that the sexual harassment code might in many ways reaffirm this morality based on sexual control and silence rather than address it. This might in turn lead to further curbing of conversation and expression of things related to ‘sex’, keeping intact its position as ‘dirty’, ‘dangerous’ and ‘unspeakable’. In the long run this would be counter-productive to addressing any issues related to sex and sexuality, including sexual harassment.
Finally, the sexual harassment law, like all other laws addressing women’s issues, creates specific definitions of categories like ‘sexual harassment’, the ‘harassed’ and the ‘harasser’. These categories imbibe within them certain values signatory of law around women. The most important of them is viewing of the woman worker as a victim. This leaves only one way that she may experience harassment and react to it. The board then becomes the embodiment of this hegemonic understanding. By virtue of having been made a victim alone, the woman has as always to prove her victimhood beyond doubt to get justice. This image of ‘victimhood’ may be tarnished by any signs of agency.
Conceptually then, this becomes problematic as establishing norms of victimhood are a prerequisite for ‘justice’. Women in the unorganized sector, given the lack of formal institutions to protect them despite the lived reality of dealing with various issues, including sexual harassment, individually and on a daily basis, are forced to curb and hide their agency in order to present themselves before these boards as ‘victims’ of sexual harassment.
Yet another important criticism is of the protectionist attitude towards women who inhabit the public sphere. Shilpa Phadke’s argument is useful in this regard: ‘Safety in public spaces has thus far been tied to the notion of state responsibility and client-hood. For women particularly, this status of client-hood is linked intimately with ideologies of protectionism and the need to demonstrate protection-worthiness through manufacturing respectability. This reduces rather than enhances women’s access to public space.’16
As argued earlier, the everyday lives of women in general and more specifically of women workers in the unorganized sector provide important insights into ways of dealing with sexual harassment. They also expose the forced protectionism of the state and the law as well as the necessary moral features of a woman worker who is ‘worthy’ of protection. They expose ‘a protectionist response to women’s rights claims, and a response to sexual behaviour based on 19th century attitudes towards the regulation of sexuality.’17
As mentioned earlier, the Vishaka guidelines are significant as they formulated a category of ‘sexual harassment’ and made it part of public discourse. It is this process of the struggle before and after the guidelines as well as the guidelines themselves that have given the issue of sexual harassment due attention and led to many positive steps in the direction of addressing it.
However, a critical look at the law and understanding of sexual harassment brings out points that make it problematic. The establishment of a system of policing and penalties create a moral universe which reinforces ideas on sex and sexuality. The system of penalty individualises the issue, negating the role of the collective in countering sexual harassment.
Further, by freezing the definitions of the actors and actions, no space is left for viewing the harassed person, the perpetrator, and the act from other angles. Such a freezing then leaves little room for other aspects of interaction between human beings – that of desire, pleasure, as well as varied experiences of violence.
Policing and protectionist attitudes could be countered through conversation around broader perspectives on gender, sex and sexuality. A need to initiate conversation from outside the institution or the state, which would inevitably be of a protectionist nature, perhaps in the nature of what the guidelines recommend as ‘worker’s initiatives’,18 gains importance. One cannot sufficiently stress the need for recognizing the role and representation of workers in any process initiated to counter sexual harassment. This then might make the mechanism one that is ‘owned’ by all those within a workplace or working circumstances (as in the case of unorganized sector) rather than being yet another tool of the employer and/or the state.
The primary challenge seems to lie in using the law effectively while being conscious of its limitations. This consciousness may then propel us to ask important questions with regard to the issue at hand – sexual harassment. This kind of a critical process will only enhance the conceptual and practical impact of guidelines and laws that address sexual harassment within both the organized and unorganized sectors. While we have a long way to go in even establishing a mechanism in the context of the unorganized sector, the absence of a formal system also gives us the privilege to learn from experiences of women in the unorganized sector as well as ask broader conceptual questions about sexual harassment. This process of questioning will have an important impact not just on the lives of women in the unorganized sector but on all women who inhabit the public space.
1. Section 294 of the Indian Penal Code states: Whoever, to the annoyance of others: (a) Does any obscene act in any public place, or (b) Sings, recites or utters any obscene song, ballad or words, in or near any public place, Shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both.
2. Section 354 of the Indian Penal Code states: Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
3. Section 4 of the Indecent Representation of Women (Prohibition) Act, 1986 states: No person shall produce or cause to be produced, sell, let to hire, distribute, circulate or send by post any book, pamphlet, paper, slide, film, writing, drawing, painting, photograph, representation or figure which contains indecent representation of women in any form.
Section 6 of the Indecent Representation of Women (Prohibition) Act, 1986 which provides for the penalty states: Any person who contravenes the provisions of Sec 3 or Sec 4 shall be punishable on first conviction with imprisonment of either description for a term which may extend to two years, and with fine which may extend to two thousand rupees, and in the event of a second or subsequent conviction with imprisonment for term of not less than six months but which may extend to five years and also with a fine not less than ten thousand rupees but which may extend to one lakh rupees.
4. The Protection of Women Against Sexual Harassment at Workplace Bill, 2007 http://india.gov.in/outerwin.htm?id=http://www.wcd.nic.in/protshbill2007.htm
5. Article 21 of the Constitution of India states: No person shall be deprived of his life or personal liberty except according to procedure established by law.
6. Article 14 of the Constitution of India states: The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
Article 15 of the Constitution of India states: (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. (2) No citizen shall, on ground only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to: (a) access to shops, public restaurants, hotels and places of public entertainment; or (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained whole or partly out of State funds or dedicated to the use of general public. (3) Nothing in this article shall prevent the State from making any special provision for women and children.
7. Article 19(1)(f) of the Indian Constitution states: All citizens shall have the right – (f) to practice any profession, or to carry on any occupation, trade or business.
8. Sexual harassment is defined by the Vishaka guidelines to include 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; or any other unwelcome physical, verbal or non-verbal conduct of a sexual nature.
The proposed Bill in Section 3 expands the latter part of the definition and states: No woman employee at a workplace shall be subjected to sexual harassment including unwelcome sexually determined behaviour, physical contact, advances, sexually coloured remarks, showing pornography, sexual demand, request for sexual favours or any other unwelcome conduct of sexual nature whether verbal, textual, physical, graphic or electronic or by any other actions, which may include, (i) implied or overt promise of preferential treatment in employment; or (ii) implied or overt threat of detrimental treatment in employment; or (iii) implied or overt threat about the present or future employment status; (iv) conduct which interferes with work or creates an intimidating or offensive or hostile work environment; or (iv) humiliating conduct constituting health and safety problems.
9. Section 4 of the The Protection of Women Against Sexual Harassment at Workplace Bill, 2007 states: (1) For the purpose of this Act, every employer of a workplace shall constitute, by an Office Order in writing, an internal complaints committee.
Provided that where the offices or administrative units of the workplace are located at different places or divisional or sub-divisional level, the committee shall be constituted at all administrative units or offices.
(2) The committee shall consist of the following members namely: (a) a chairperson, from amongst employees, who shall be a senior level woman, committed to the cause of women. In case a senior level woman employee is not available, the chairperson shall be appointed from a sister organization or a non-governmental organization; (b) not less than two members from amongst employees committed to the cause of women or who have had experience in social work; and (c) one member from amongst such non-governmental organizations or associations or other interests committed to the cause of women, as may be specified: Provided that at least fifty per cent of the members so nominated shall be women.
10. Section 11(3) of the Protection of Women Against Sexual Harassment at Workplace Bill, 2007 states: Where the committee or the local committee, as the case may be, arrives at the conclusion that the allegation against the respondent has been proved, it shall recommend to the employer or the district officer, as the case may be, (a) to take action for misconduct in accordance with the provisions of the service rules applicable to the respondent or where no such service rules have been made, in such manner as may be prescribed; or (b) to deduct from the salary or wages of the respondent such sum of compensation to be paid to the aggrieved woman or to legal heirs, as it may determine, in accordance with the provisions of section 13; or to direct the respondent to pay such compensation to the aggrieved woman.
11. Section 12 of the Protection of Women Against Sexual Harassment at Workplace Bill, 2007 states: Where the committee or the local committee, as the case may be, arrives at a conclusion that the allegation against the respondent is false or malicious or the aggrieved woman or any other person making the complaint has produced any forged or misleading document, it may recommend to the employer or the district officer to take action against the woman or the person who has made the complaint in accordance with the provisions of the service rules applicable to her or him or where no such service rules have been made, in such manner as may be prescribed.
12. Section 6 of the Protection of Women Against Sexual Harassment at Workplace Bill, 2007 states: Where at a workplace, constitution of the committee is not possible or practicable, or where the complaint is against the employer himself, the district officer may constitute at every block, a local complaints committee.
13. The National Commission for Enterprises in the Unorganized Sector which was constituted by the Government of India to review the status of unorganized sector in India and to suggest the legal and policy environment that should govern this sector, proposed two bills – The Agricultural Workers’ Conditions of Work and Social Security Bill, 2007 and the Unorganized Non-Agricultural Workers’ Conditions of Work and Social Security Bill, 2007, both of which require the government to make rules to address issues of sexual harassment.
14. Unpublished theoretical formulation by Akshay Khanna in the context of the sodomy law in India which can be an interesting tool in analysing other laws as well.
15. Ratna Kapur, ‘Sexcapades and the Law’, Seminar 505, September 2001.
16. Shilpa Phadke, ‘Dangerous Liaisons Women and Men: Risk and Reputation in Mumbai’, Economic and Political Weekly, April 2007.
17. Ratna Kapur, op.cit.
18. The Vishaka guidelines lay down that employees should be allowed to raise issues of sexual harassment at workers meeting and in other appropriate forum and it should be affirmatively discussed in employer-employee meetings.
Nivedita Menon, ‘Embodying the Self: Feminism, Sexual Violence and the Law’, in Partha Chatterjee and Pradeep Jeganathan (eds.), Community, Gender and Violence, Subaltern Studies XI, Permanent Black, Delhi, 2000, 66-105.
Nandita Gandhi and Nandita Shah, The Issues at Stake: Theory and Practice in the Contemporary Women’s Movement in India, Kali for Women, New Delhi, 1991.
Maitrayee Mukhopadhyay, Legally Dispossessed: Gender, Identity and the Process of Law, Stree, Calcutta, 1998.
Mary E. John and Janaki Nair (eds.), A Question of Silence? The Sexual Economies of Modern India, Zed Books, London, 1998.
Ratna Kapur, ‘Sexcapades and the Law: Evaluating the Sexual Harassment Guidelines’, Seminar 505, (Towards Equality: a symposium on women, feminism, and women’s movements), September 2001.
Pratiksha Baxi, ‘Sexual Harassment’, Seminar 505, September 2001.
Shilpa Phadke, ‘Dangerous Liaisons: Women and Men: Risk and Reputation in Mumbai’, Economic and Political Weekly, 28 April 2007, 1510-1518.
Vishaka and other Vs. State of Rajasthan and others (AIR 1997 SC 3011).
The Protection of Women Against Sexual Harassment at Workplace Bill, 2007.
The Indian Penal Code, 1860.
Indecent Representation of Women (Prohibition) Act, 1986.
Unorganized Non-agricultural Workers Conditions of Work and Social Security Bill, 2007.
Agricultural Workers’ Conditions of Work and Social Security Bill, 2007.