GENDER NEUTRALITY AND SEXUAL HARASSMENT LAWS IN INDIA: A SOCIETAL ISSUE

GENDER NEUTRALITY
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About the Author:

Srishti Yadav is a law student of Amity University.

Abstract:

Most of us consider this to be a myth but men too can be the victims of sexual harassment. Gender-neutral law means the laws where all genders are deemed to be equal in the eyes of law, either by explicitly mentioning each gender or drafting the language of the legislation in such a manner that it doesn’t seem to be in favor or against a particular gender. The paper throws light on the multiple aspects of having gender-neutral laws in India. Literature of considerable worth has been mentioned which also tries to establish the firm meaning terms such as gender neutrality and sexual harassment.  The constitutional perspective is also being looked at. The peculiarities of several ‘sexual harassment’ definitions are analyzed from a gender perspective. There is also a discussion about the sexual harassment which males face at workplaces and what the government has done to prevent it. Some light is thrown over the worldwide scenario of gender-neutral laws. The paper ends by providing a short conclusion as well as the arguments in favor and against having gender-neutral laws in India.

Keywords:

Sexual harassment, gender-neutral, 2013 Criminal Law Amendment Act, Workplace, Supreme Court, men

Introduction:

As per sections 375 and 376 of IPC, rape could be committed only by a man over a woman. Not only this, the laws related to voyeurism, stalking, and sexual harassment too are gender-specific whereby only a woman can be the victim. This doesn’t extend to the law of acid attack that makes use of the word ‘whoever. [1]  Nowadays, there is a rising awareness that sexual harassment not only represents an act to fulfill one’s lust or desire but also a way of showcasing dominance of religion, caste, community, etc. These are also considered to be acts of humiliation and power. Keeping this thing in mind, there is no reason to exclude a male from being the victim of sexual offenses in India. The paper largely clarifies the concepts of gender neutrality and sexual harassment and tries to look at themthrough multiple lenses.

2018 was the year when the Indian social media was buzzing with the stories of sexual harassment when actress Tanushree Dutta accused her co-star Nana Patekar of sexually harassing her. Many big names including politicians, directors, and producers were exposed. The movement is known as ‘Me Too’ was the first such movement when the sexual offenders faced public humiliation and lost their reputation. Men, too, came out in large numbers to share their sexual harassment stories.  It was because of this campaign that the companies started complying with the provisions of the POSH Act (Prevention of Sexual Harassment Act, 2013). According to the Act, it is mandatory for the companies having more than 10 employees to set up an Internal Complaints Committee (ICC) to handle sexual harassment cases. But this act too has the same deficits.[2]

 Also, the recommendations ofthe 172nd report of the Law Commission of India highlight the need of having gender-neutral laws in India.  The Constitutional principles of Equality before Law and Equal Protection of Law need to be applied here. Only a gender-neutral law could ensure that all identities are equally protected. But we cannot ignore the realities of the society we live in. Having a gender-neutral law may end up inflicting even more trauma and humiliation on women (who are already marginalized) and hence the purpose of the law would be defeated.[3]

Methodology adopted:

A plethora of information is available for the review of this topic as it is a current topic of interest in law and there are chances of it being applied in the future as well. A lot of published as well as unpublished research papers and journals such as the research gate, sage pub were used for conducting its research. The archives of trusted libraries as well as other documents were used. Several earlier precedents are relied upon. Articles and reports of trusted newspapers such as ‘The Hindu’, the ‘Times of India’ and the ‘Economic Times’ were also looked into. The relevance and credibility of various sources were taken into account. The evaluation of resources was done keeping in mind the following criterion:

  1. How current is the resource used?
  2. Does it align with the questions which are being raised in the paper?
  3. And the credentials of the source’s author.

A few researches are also taken from decade-long work to establish the fundamentals of various concepts such as sexual harassment, gender neutrality, etc.

Literature Review:

The term ‘sexual Harassment’ first came to the limelight in the cases where women were removed from their jobs because they rejected any sort of sexual overtures at the hand of their employers. This was known as the ‘quid pro quo’ kind of sexual harassment. Such an action was considered to be violating Title VII of the Civil Rights Act of 1964. Soon, it got recognition in the Employment Law that unwanted sexist behaviors of coworkers may lead to conditions unfit for employment i.e. ‘Hostile work Environment’. The guidelines were issued by the US Equal Employment Opportunity Commission in 1980 i.e. USEEOC 1980.[4]

Psychologists have come up with a three-part classification system that divided sexual harassment into three different but related categories:

  • Sexual Coercion
  • Unwanted Sexual Attention
  • Gender Harassment[5]

Both men and women are prone to or can experience all the above forms of sexual harassment, but some subgroups are more vulnerable than others. For example, lesbian or bisexual women, or women who exhibit stereotypical masculine behavior or who propagate gender-egalitarian beliefs. In a similar manner, gay, transgender, or men who are perceived as ‘not man enough’ have higher chances of facing harassment. 

In his research paper, Sreekumar (1992), emphasizing the problem of under-trial prisoners in India, has pointed out that gang rapes of homosexual nature were quite common in Indian prisons. People’s Union of Civil Liberties (PUCL) (2003) conducted an extensive study of Kothi and Hijra sex workers in the city of Bangalore. They concluded that the Trans genders Community in India suffers from grave Human Rights violations, thereby necessitating an urgent law to protect them.

Arvind Narain (2013) in his article in “The Economic and Political Weekly” makes a commentary over the Criminal Law Amendment Act, 2013. He writes that in India, there are no such known instances whereby a woman committed sexual assault over a man, and thereby, making sexual assault gender-neutral in non-custodial situations isn’t supported by any empirical evidence.

Amtul Waris and B.C. Viraktamatha (2013) is of the view that gender equality constitutes a critical element to achieve institutional change and could lead to sustainable development along with equity and growth. Also, feminists like Nivedita Menon and Vrinda Grover demand that neutrality shall be with respect to the victim only, and gender should not be taken into account. They believe in ‘GENDER JUST and GENDER SENSITIVE LAWS’.

Gender Neutrality:

The phrase ‘gender neutrality’ is quite ambiguous and as put by Arvind Narain (2013), it confuses more than it communicates. He talks about the three dimensions of gender-neutrality i.e.

  • With respect to the victim
  • With respect to the perpetrator
  • And in communal war, custodial and conflict situations.[6]

The paper only looks into the first two contexts of neutrality.

Neutrality with respect to the victim:

The word ‘victim’ is traditionally used to refer to a woman and most of the sexual assault laws in India are based on this false belief. But at present, there is a rising awareness that sexual harassment not only represents an act to fulfill one’s lust or desire but also a way of showcasing dominance of religion, caste, community, etc. These are also considered to be acts of humiliation and power. If this is the scenario, then should why the male gender be denied justice and forced to suffer in isolation. Also, most people misconceive that the word ‘gender’ is used to denote only the set categories of the male and female body. This clearly means turning a blind eye towards the violence faced by the intersex and transgender community (including Hijras and Kothis).[7]

Further, the coercive sexual intercourse of a male over a male is not even recognized as rape in India, just limiting it to section 377. There has to be a proper distinction between coercive and consensual sexual intercourse. Section 377 comes with no minimum punishment which clearly indicates that the lawmakers don’t consider it to be a heinous crime.[8]

Neutrality with respect to perpetrator:

While there are a lot of debates and discussions about making the gender of the victim inclusive, there is not much discussion about a female being a perpetrator. There are diverse views regarding this topic:

  • As per Susan Brown miller, a woman raping a man is a biological impossibility.

This is because if a man is told by a woman that she wants to have sex with him, the man will be so frightened and disoriented that he would not be in a situation to commit it. He will not be in a suitable physical mood to have sex with her.[9] The inherent assumption in this argument is that women cannot commit rape over men because of their lack of physical prowess.

  • Rape cannot be committed on a real man as he can defend himself from it.

Agnes (2013) is of the view that men consider rape to be a weapon through which they can exercise their power and control over women. Many consider it to be an absurd impossibility when a man is not able to defend himself.[10]

  • Social reality doesn’t support such a scenario.

As per Narain (2013), there are no such known instances whereby a woman committed sexual assault over a man, and thereby, making sexual assault gender-neutral in non-custodial situations isn’t supported by any empirical evidence. [11]

Sexual Harassment:

According to the guidelines which the Honorable Supreme Court laid down in the matter of Vishakha and Ors vs. the State of Rajasthan[12], the definition of sexual harassment is as follows:

Unwelcome and sexually determined behavior (explicitly or implicitly) which includes:

Though the definition mentioned above is gender-neutral, the Court made a critical observation while qualifying it: “in case of any of these circumstances, if the victim has a reasonable apprehension that the conduct:

  • Might affect her employment
  • Can be humiliating
  • Or it may constitute a safety or health problem
  • Or she would have to face other adverse consequences if she doesn’t provide her consent to that particular conduct”[13]

This qualifying statement of the Supreme Court deprives the definition of its gender-neutrality. This woman-centric approach is also visible in the definition of sexual harassment in the 2013 POSH Act which defines ‘aggrieved woman’ at the start itself’. As per section 3 of the Act, no woman should be a subject of sexual harassment at any workplace.

There is another definition which is provided by the comparable Equal Employment Opportunity Commission (EEOC) which is completely gender-neutral as it hints towards no particular gender. Also, many sections under the IPC such as sections 354, 376, and 509 all are for the purpose of protecting women and have a gender-specific language in their favor.[14]

Constitutional Perspective on gender-neutral laws:

The Preamble provides for dignity and integrity to every citizen of the country. Sexual Harassment in every sense violates the dignity of the person being harassed, whether man, woman, or third gender. Part 3 of the Indian Constitution ensures to every citizen certain fundamental rights, regardless of the gender, sex, or religion of the person. The following provisions highlight the need for gender-neutral laws in India:

  • The expressions of ‘equality before the law’ and ‘equal protection of law’ which are mentioned under article 14 of the Indian Constitution form the spirit of any law and the absence of which will make a law arbitrary. For example, the POSH Act protects only women from sexual harassment and not men or third gender, clearly negating these expressions.
  • Article 15 clearly prohibits the state to discriminate against any citizen on the basis of caste, religion, gender, sex, etc.
  • Article 19(a) (1) which provides the citizens of the country with the freedom to freely give expression to their thought, belief, etc. In India, there is a general perception prevalent against the masses that men can’t be sexually assaulted, abused, or harassed. It is this type of thinking which restrains or doesn’t provide a supportive environment for men to raise their voice against such offenses. Further, the lack of a proper legal framework makes it difficult for men to raise complaints about them. This violates men’s rights under this article. [15]
  • As per article 21, it is the right of every person to be heard but in India, we have no such laws to recognize that men can be subjected to sexual harassment, rather they are perceived perpetrators in all such cases. Subsequently, the Court also doesn’t entertain such cases, violating their right to be heard.

International Perspective:

The International Labor Organization (ILO) is an agency of the United Nations that works for promoting social justice and ensuringa safe working environment for everyone. It also sets the labor law standards. The Organization in June 2019 formalized the ‘Convention on Elimination of Violence and Harassment at the workplace, 2019’ according to which gender-based violence has an effect on all the individuals at work regardless of their sex. But to date, the convention has not been ratified by India.

Internationally, there are around 77 countries in the world to have prohibited sexual harassment at work, either by national legislation or labor codes. India added its name to the list in 2013. All these countries have different perspectives regarding what constitutes sexual harassment that is seen to be influenced by their culture as well as notions of gender equality. The legislations of some of these countries are discussed below:

BRITAIN: The Acts applicable here are the Employment Rights Act and Sex Discrimination Act (SDA). As per the SDA, it is unlawful to harass a transsexual person, in case they intend to undergo/ are undergoing/ have undergone gender reassignment. Sexual Harassment is also clubbed along with other kinds of treatment such as enforced transfer, criticizing work, ill-health, or even dismissal.

AUSTRALIA: Under the country’s law, though the person is primarily responsible for sexually harassing someone, in most instances, the company too is held vicariously liable for the conduct of the employees/ agents/ contractors, till the time it shows the steps which it took to prevent sexual harassment.

BRAZIL: In 2001, the Brazilian Government enacted a criminal law making sexual harassment a crime with imprisonment of 1-2 years.

SPAIN: Under the Spanish labor law, certain rights are provided against sexual harassment such as protection from physical or verbal conduct. As per section 52 (2) (g) of the Labor Act, Sexual harassment at the workplace is considered to be a breach of the Contract of Employment and thereby, making it valid to dismiss the harasser.

ZIMBABWE: As per the Zimbabwe Labor Relations Act, sexual harassment is deemed to be an unfair labor practice. The reporting of the offenses could be done by the ‘labor officers’ who serve as the in-charge of conciliating employment-related disputes. Or the victim could also make an appeal to the labor court.

Male Sexual Harassment in the Workplace:

In the traditional Indian society, men were deemed to be the sole breadwinners of the family, and women used to remain at home and engage in household chores. But women gradually started to step out of their houses and achieved professional and academic success. Now we see women managing the top companies of the country. But the laws of the country should also witness the same change as is witnessed in the social system of the country. Many times, it is noticed that the lawmade for protecting the rights of a particular gender are being manipulated and misused by the same gender. The 2013 POSH Act is an apt example in this regard.

As per section 2(f) of the act, the term ‘employee’ includes every female

  • Who is working
  • Or is directly/ indirectly attached to the workplace

to earn money either temporarily or permanently with (out) the knowledge of the principal contractor. There are different circumstances in which sexual harassment can occur. In most cases, the harasser occupies a position of authority with respect to the victim. In many incidents, the tables have been turned and men were at the receiving end. These kinds of cases are more about power and less about gender. In the current scenario, more women are seeking power positions leaving behind no reason as to why an authoritative woman cannot misuse her powers.  A male employee could also be harassed by a female boss or even a male boss.[16]

  There is a lack of statistics regarding the number of men who are sexually harassed at work and the ones who file complaints regarding it. But men, rarely complaint about such incidents, probably because of the following reasons[17]:

The main problem lies with men’s non-acceptance of their vulnerability. They may consider it difficult to acknowledge the fact that they have been sexually harassed as it makes them feel feminized.

Steps taken by Government to protect men:

The government’s response regarding gender-neutrality in sexual harassment cases has been quite perplexing. The plight of the men was brought to light for the first time in the 172nd report of the Law Commission of India. A thoughtful amendment was brought about in the form of the Criminal Law Amendment Act, 2013. But the guidelines of the act were not paid much attention to except by the University Grants Commission (UGC). The UGC after receiving notification from the ministry of HRD went ahead to make regulations against sexual offenses in universities. Under the regulations, it was clearly laid down that female, male, and third gender students are vulnerable to different forms of sexual harassment as well as exploitation and humiliation.[18]

Besides the above regulation, the Protection of Children from Sexual Offences Act, 2012 (POCSO) is worth mentioning. In the 2019 Amendment of the Act, all the provisions of the Act were made gender-neutral except section 3 of the Act. [19]

Conclusion and Suggestions:

Through this article, I have tried to discuss and evaluate multiple dimensions related to gender-neutral sexual harassment laws in India. It is just on the face of it that patriarchy seems to be something in the favor of men. But the reality is quite different; men too have to deal with a lot of challenges in this patriarchal society. The Indian legislators, unfortunately, turned a blind eye towards the issue and still refuse to acknowledge the fact that any person, regardless of gender could be the victim or perpetrator of sexual assault. To sum up, arguments in favor as well against gender-neutral laws are given below:

IN FAVOUR:

  • According to a survey done over the victim males of US and UK, 3-8% of males have made a report of atleast one instance of sexual assault in their lifetime. Out of that, 5-10% were harassed by male perpetrators and 6-15% by females[20]. Similar incidents have been reported in India as well in recent years.
  • Article 15(3) empowers the state to make laws favoring women but it doesn’t prevent the state from making similar laws for the other sections of the society (men and Trans genders). Though the instances of such offenses being committed over men are much less as compared to those of women; they cannot be denied the right to equality. Such a law resorting to the unreasonable classification of certain sections of the society violates the basic structure of the Constitution.
  • Gender-neutrality is not anti-women or anti-feminist. In fact, the very core of the feminist movement in India is equality. Recognition of other gender victimization in no way means undermining the plight of females.
  • There is an increasing number of false rape cases being filed in India:
  • Tilak Raj v. State of Himachal Pradesh[21]
  • Malti Chauhan v. State (Government of NCT of Delhi) and Ors[22]
  • Raghuvinder Harna v. State of NCT of Delhi[23]

The above judgments are related to false rape, on the basis of which it can be concluded that the victim of the crime is behind bars even though he did not commit anything.

AGAINST:

  • Most people believe that neutralizing the sexual harassment laws would make the male community even more powerful and increase women’s vulnerability.
  • Male Sexual Harassment cases are merely reported. The statistics of such incidents being faced by men or the transgender community are negligible as compared to women victims. Thus, owing to under-reporting, there is very less awareness about such incidents against men.
  • It might happen that women file counter-complaints to revenge, thus further worsening the situation of the sexually harassed man and endangering his reputation.

Till the time we have proper gender-neutral laws, men cannot be left at the behest of female perpetrators. They can also file complaints in the HR departments of their offices and thereby hold ground for strict recourse in this regard. This is a step to ensure that their ordeals stop. Similarly, different organizations need to take a progressive step and while implementing the POSH Act, need to build gender-neutral policies and encourage sensitization sessions on topics related to sexual harassment against men at the workplace.

Bibliography:

References


[1]Diva Rai, “GENDER NEUTRALITY AND SEXUAL HARASSMENT LAWS IN INDIA” available at:  https://blog.ipleaders.in/gender-neutrality-and-sexual-harassment-laws-in-india/amp/ (Lat visited on July 13, 2021)

[2]Supra

[3] Report of the Committee on Amendments to Criminal Law (2013), retrieved from http://nlrd.org/womensrights-initiative/justice-verma-committee-report-download-full-report on July 12, 2021.

[4]MacKinnon CA. Sexual Harassment of Working Women: A case of sex discrimination, New Haven CT: Yale University Press; 1979.

[5]Supra

[6]Narrain S. (2003) Being a Eunuch. The Frontline, available on: http://www.countercurrents.org/gennarrain141003.htm (last visited on July 14, 2021)

[7]  “Human Rights Violations against the Transgender Community: A study of the Kothi and Hijra sex workers in Bangalore, India (2003)”,People’s  Union of Civil Liberties, Karnataka, available on: http://www.pucl.org/Topics/Gender/2004/transgender.htm%20o  (last visited on July 13, 2021)

[8] Eesha Mishra, “GENDER NEUTRALITY AND SEXUAL HARASSMENT LAWS IN INDIA: A SOCIETAL ISSUE”, available on: https://lexlife.in/2021/02/21/gender-neutrality-and-sexual-harassment-laws-in-india-a-societal-issue/ (last visited on July 14, 2021)

[9] Vipra J. (2013). A case for gender neutral rape laws in India, CCS working paper, available at: http://ccsinternship.files.wordpress.com/2013/05/286_case-for-gender-neutral-rape-laws-in-india_jaai-vipra.pdf  (last visited on July 13, 2021)

[10]Supra note 8 on 6

[11]Supra note 6 on 5

[12] (1997) 6 SCC 241

[13]Seema Sundd, “GENDER-NEUTRALITY AND SEXUAL HARASSMENT LAWS IN INDIA: AN OVERVIEW” available at: https://www.mondaq.com/india/employee-rights-labour-relations/988146/gender-neutrality-sexual-harassment-laws-in-india-an-overview (Last visited on July 14, 2021)

[14]Supra

[15]Supra note 9 on 6

[16]Supra note 13 on 8

[17] Supra

[18]Karan Arora, “Why India Inc needs to protect men against sexual harassment at workplace?”, available at:

https://www.ungender.in/why-india-inc-needs-to-protect-men-against-sexual-harassment-at-workplaces-in-india-case-for-gender-neutral-policies/ (Last visited on July 12, 2021)

[19]Supra

[20]Supra note 18 on 10

[21] AIR 2016 SC 406

[22] 2016 (1) JCC 343

[23] 2016 (1) JCC 99

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