Hindustan Times
While the case filed by a staffer at Tehelka magazine against her editor-in-chief is being seen as a symbol of the glaring absence of women’s rights at the workplace, it has also blown the lid off the hypocrisies and appalling lack of awareness around the issue of sexual harassment and gender rights at the workplace.
From comments online, as well as those who have gone on national television to sympathise with Tarun Tejpal, to even Tejpal’s own statements, where he seems to have trivialised, almost excused, his alleged behaviour as a “fleeting, totally consensual encounter”, it appears too many people are too confused about the basics of it.
The law, meanwhile, has definitions in place.
Section 2(n )of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (yet to be notified) says sexual harassment “includes any one or more of the following unwelcome acts or behaviour (whether directly or by implication) namely:-physical contact and advances; or a demand or request for sexual favours; or making sexually coloured remarks; or showing pornography; or any other unwelcome physical verbal or non-verbal conduct of sexual nature.”
Section 3 of the same Act cites certain instances which might be sexual harassment.
These include “(i) implied or explicit promise of preferential treatment in her employment; or (ii) implied or explicit threat of detrimental treatment in her employment; or (iii) implied or explicit threat about her present or future employment status; or (i) interferes with her work or creating an intimidating or offensive or hostile work environment for her; or (v) humiliating treatment likely to affect her health or safety.”
Sexual harassment in itself is not easy to define.
“You know it when you see it,” says advocate Karuna Nundy, adding that the woman’s feeling of discomfort is the deciding factor. She adds, “You look good’ may not be a sexual comment, ‘You look hot’ is.”
But the problem, of course, is that it’s never that simple. For someone combating a lecherous boss, it is difficult to read into the legalese.
The country’s first formal mandate against sexual harassment at the workplace came as recently as in 1997, with the Supreme Court’s legally binding directions in the Vishaka v State of Rajasthan and others case.
The brutal gang rape of Bhanwari Devi, a social worker, brought to the attention of the Supreme Court of India, “the absence of domestic law occupying the field” and the need “to formulate effective measures to check the evil of sexual harassment of working women at all work places.”
Expert speak: "Sexual harassment at workplace is often not overt"
While the 2013 Act, that followed the guidelines, defines sexual harassment in similar terms, lawyers working on issues of women’s rights in the country feel the Act is not all that they had hoped for.
“This Act has diluted the spirit of Vishaka. It has been drafted using archaic language and legalese which the common persons, the beneficiary in particular, will never be able to understand. It is not user friendly like Vishaka. Unlike Vishaka which prioritised prevention, the 2013 Act prioritises complaints and the complaint mechanism, equipping an Internal Complaints Committee with powers of a Civil Court. Not only is that unworkable it is Constitutionally unviable to create a parallel court in the workplace,” feels Naina Kapur, a lawyer.
In 1997, Kapur had framed and acted as lead instructing counsel before the Supreme Court of India in the Vishaka case.
She adds, “It is the ‘sexual’ part of harassment that creates the most discomfort, an unnecessary socially-conditioned hurdle when we’re actually talking about women’s Constitutional equality at the workplace.” And those working in the field of women’s rights feel it is the responsibility of the organisation to ensure that.
According to the Act, every employer is required to constitute an Internal Complaints Committee at each office or branch with 10 or more employees.
The District Officer is required to constitute a Local Complaints Committee at each district, and if required at the block level.
Employers who fail to comply will be punished with a fine of up to Rs. 50,000.
But it falls short of US regulations, where the Supreme Court, in cases such as Burlington Industries Inc v Ellerth, has said that in quid pro quo cases of sexual harassment, an employer is always liable for a supervisor’s or manager’s harassment, if it results in a tangible employment action.
The court had held that in order to defend itself, employers must show that they had exercised reasonable care to prevent and correct promptly any harassing behaviour, and that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.
India’s long-awaited legislation against sexual harassment of women at the workplace (it took 16 years since the Vishaka judgement to formulate the legislation), however, poses more questions than it answers.
The United Nations has recognised sexual harassment as a form of discrimination and violence against women. Under the Vishaka judgement too, the need for a law against sexual harassment of women at the workplace was felt to ensure proper interpretation of the guarantee of gender equality, right to work with human dignity in Articles 14, 15 19(1)(g) and 21 of the country’s Constitution.
But it is unclear whether gender-based discrimination or sexist remarks (think, this is not a job for a woman) is covered under this Act. Lawyers are divided on the issue.
Explains Seema Misra, a lawyer who works on issues related to women’s rights, including sexual harassment, “Sexual harassment is a form of gender-based discrimination, but all gender-based discrimination is not sexual harassment.”
However, Vikas Gupta, a Delhi-based criminal lawyer is of the view that this Act can be used to cover gender-based discriminations and sexist behaviour.
“The section that says ‘any other unwelcome physical verbal or non-verbal conduct of sexual nature’, can be used to include sexist or gender-based comments for often they are the first step towards more serious harassment.
Once the Act is notified and appeals are heard under it, interpretations will follow.” MS Khan, a criminal lawyer who practices at the Delhi High Court, believes that gender-based discrimination is not included under this Act.
“Article 15 of the Constitution prohibits discrimination based on sex, but that is not covered under the purview of the sexual harassment of women at workplace Act 2013,” he says, adding, “Internationally, workplace harassment includes both gender-based discrimination as well as sexual harassment.
The difference is that in the US or Europe workplace harassment covers both harassment for men and women. Therefore gender-based harassment finds mention there. The 2013 Act however, has been drawn up only to protect women. Men are not covered in it. And therefore gender-based discrimination is also not discussed in this Act.”
What the law says
The introduction to the Sexual Harassment of Women at the Workplace Act 2013 says: "Sexual harassment results in violation of the fundamental rights of a woman to equality under articles 14 and 15 of the Constitution of India and her right to life and to live with dignity under article 21 of the Constitution and right to practice any profession or to carry on any occupation, trade or business which includes a right to a safe environment free from sexual harassment.”
“And the protection against sexual harassment and the right to work with dignity are universally recognised human rights by international conventions and instruments such as Convention on the Elimination of all Forms of Discrimination against Women, which has been ratified on the 25 June, 1993 by the Government of India...”
While the case filed by a staffer at Tehelka magazine against her editor-in-chief is being seen as a symbol of the glaring absence of women’s rights at the workplace, it has also blown the lid off the hypocrisies and appalling lack of awareness around the issue of sexual harassment and gender rights at the workplace.
From comments online, as well as those who have gone on national television to sympathise with Tarun Tejpal, to even Tejpal’s own statements, where he seems to have trivialised, almost excused, his alleged behaviour as a “fleeting, totally consensual encounter”, it appears too many people are too confused about the basics of it.
The law, meanwhile, has definitions in place.
Section 2(n )of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (yet to be notified) says sexual harassment “includes any one or more of the following unwelcome acts or behaviour (whether directly or by implication) namely:-physical contact and advances; or a demand or request for sexual favours; or making sexually coloured remarks; or showing pornography; or any other unwelcome physical verbal or non-verbal conduct of sexual nature.”
Section 3 of the same Act cites certain instances which might be sexual harassment.
These include “(i) implied or explicit promise of preferential treatment in her employment; or (ii) implied or explicit threat of detrimental treatment in her employment; or (iii) implied or explicit threat about her present or future employment status; or (i) interferes with her work or creating an intimidating or offensive or hostile work environment for her; or (v) humiliating treatment likely to affect her health or safety.”
Sexual harassment in itself is not easy to define.
“You know it when you see it,” says advocate Karuna Nundy, adding that the woman’s feeling of discomfort is the deciding factor. She adds, “You look good’ may not be a sexual comment, ‘You look hot’ is.”
But the problem, of course, is that it’s never that simple. For someone combating a lecherous boss, it is difficult to read into the legalese.
The country’s first formal mandate against sexual harassment at the workplace came as recently as in 1997, with the Supreme Court’s legally binding directions in the Vishaka v State of Rajasthan and others case.
The brutal gang rape of Bhanwari Devi, a social worker, brought to the attention of the Supreme Court of India, “the absence of domestic law occupying the field” and the need “to formulate effective measures to check the evil of sexual harassment of working women at all work places.”
Expert speak: "Sexual harassment at workplace is often not overt"
While the 2013 Act, that followed the guidelines, defines sexual harassment in similar terms, lawyers working on issues of women’s rights in the country feel the Act is not all that they had hoped for.
“This Act has diluted the spirit of Vishaka. It has been drafted using archaic language and legalese which the common persons, the beneficiary in particular, will never be able to understand. It is not user friendly like Vishaka. Unlike Vishaka which prioritised prevention, the 2013 Act prioritises complaints and the complaint mechanism, equipping an Internal Complaints Committee with powers of a Civil Court. Not only is that unworkable it is Constitutionally unviable to create a parallel court in the workplace,” feels Naina Kapur, a lawyer.
In 1997, Kapur had framed and acted as lead instructing counsel before the Supreme Court of India in the Vishaka case.
She adds, “It is the ‘sexual’ part of harassment that creates the most discomfort, an unnecessary socially-conditioned hurdle when we’re actually talking about women’s Constitutional equality at the workplace.” And those working in the field of women’s rights feel it is the responsibility of the organisation to ensure that.
According to the Act, every employer is required to constitute an Internal Complaints Committee at each office or branch with 10 or more employees.
The District Officer is required to constitute a Local Complaints Committee at each district, and if required at the block level.
Employers who fail to comply will be punished with a fine of up to Rs. 50,000.
But it falls short of US regulations, where the Supreme Court, in cases such as Burlington Industries Inc v Ellerth, has said that in quid pro quo cases of sexual harassment, an employer is always liable for a supervisor’s or manager’s harassment, if it results in a tangible employment action.
The court had held that in order to defend itself, employers must show that they had exercised reasonable care to prevent and correct promptly any harassing behaviour, and that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.
India’s long-awaited legislation against sexual harassment of women at the workplace (it took 16 years since the Vishaka judgement to formulate the legislation), however, poses more questions than it answers.
The United Nations has recognised sexual harassment as a form of discrimination and violence against women. Under the Vishaka judgement too, the need for a law against sexual harassment of women at the workplace was felt to ensure proper interpretation of the guarantee of gender equality, right to work with human dignity in Articles 14, 15 19(1)(g) and 21 of the country’s Constitution.
But it is unclear whether gender-based discrimination or sexist remarks (think, this is not a job for a woman) is covered under this Act. Lawyers are divided on the issue.
Explains Seema Misra, a lawyer who works on issues related to women’s rights, including sexual harassment, “Sexual harassment is a form of gender-based discrimination, but all gender-based discrimination is not sexual harassment.”
However, Vikas Gupta, a Delhi-based criminal lawyer is of the view that this Act can be used to cover gender-based discriminations and sexist behaviour.
“The section that says ‘any other unwelcome physical verbal or non-verbal conduct of sexual nature’, can be used to include sexist or gender-based comments for often they are the first step towards more serious harassment.
Once the Act is notified and appeals are heard under it, interpretations will follow.” MS Khan, a criminal lawyer who practices at the Delhi High Court, believes that gender-based discrimination is not included under this Act.
“Article 15 of the Constitution prohibits discrimination based on sex, but that is not covered under the purview of the sexual harassment of women at workplace Act 2013,” he says, adding, “Internationally, workplace harassment includes both gender-based discrimination as well as sexual harassment.
The difference is that in the US or Europe workplace harassment covers both harassment for men and women. Therefore gender-based harassment finds mention there. The 2013 Act however, has been drawn up only to protect women. Men are not covered in it. And therefore gender-based discrimination is also not discussed in this Act.”
What the law says
The introduction to the Sexual Harassment of Women at the Workplace Act 2013 says: "Sexual harassment results in violation of the fundamental rights of a woman to equality under articles 14 and 15 of the Constitution of India and her right to life and to live with dignity under article 21 of the Constitution and right to practice any profession or to carry on any occupation, trade or business which includes a right to a safe environment free from sexual harassment.”
“And the protection against sexual harassment and the right to work with dignity are universally recognised human rights by international conventions and instruments such as Convention on the Elimination of all Forms of Discrimination against Women, which has been ratified on the 25 June, 1993 by the Government of India...”
No comments:
Post a Comment