Abstract
While the legislation on sexual harassment has been criticized for practical inadequacies, this paper identifies the theoretical foundations of the legislation that hinder substantive gender equality. The analysis here reveals that the Act was drafted in a normative framework that upholds a standard of conservative sexual morality to the detriment of women’s sexuality. In particular, the paper highlights the Indian emphasis on victimhood, which ultimately results in a loss of sexual autonomy. The paper concludes with the argument that a starting point to improve this regulation is an inquiry into the definition and meaning of the term ‘sexual harassment’ itself. These arguments are further contextualized by the author’s own experiences in the Indian legal industry.
Introduction
The Sexual Harassment of Women at Workplace Act (Prevention, Prohibition and Redressal) Act 1 (Act) came into force in 2013 while I was pursuing my undergraduate degree in law school. I have inquired into the efficacy of this legislation at different stages of my life, as a student, an intern and as a legal associate. This note critiques the Act from a practical and theoretical perspective through a personal narrative based on excerpts from my diary entries over the years.
02/04/2014
I joined a student project on the Sexual Harassment Act. It’s uncomfortable. Most of my group think a sexual harassment mechanism is required for men, not only women. Am I the only one who thinks this was long overdue? Why are false allegations the primary concern? Am I wrong to expect more?
When the Act was introduced, I remember being confused by the response of the legal industry to the legislation. The argument of the majority of my research group echoed the attitudes of several law firms at the time, who attacked the Act for excluding male complainants, thereby facilitating the possibility of false allegations by women (Nishith Desai, 2018). In the absence of consensus and to avoid raising controversy, the research project report was published with a disclaimer that it was ‘representative of all points of view’. The Indian legal industry’s stance on sexual harassment, was and still is dominated by traditional gender norms. The Indian legal profession is highly predatory and male-dominated; this is demonstrated by the few reported cases of sexual harassment in which women have suffered for coming forward. A prime example of the reluctance to acknowledge sexual harassment is exhibited in the manner in which the recent allegations against the Chief Justice of India were addressed (Scroll.in, 2019). Alarming cases of sexual violence within the legal industry are further documented in reports of interns, one of whom was found dead days after filing a sexual harassment complaint (Live Law, 2018; Legally India, 2014; Scroll.in, 2019). These cases disclose a power dynamic in the Indian legal industry that is unwilling to change, despite the laws in place–including the aforementioned legislation–on sexual harassment. For these reasons, this article will analyse not only the legislation, but the social perceptions upon which the law was based.
Vishaka and Subsequent Case Law
The Indian feminist movement is unique in that grassroots activism has been able to achieve legislative action through women’s advocacy organizations. Through Public Interest Litigation (PIL), these interventions facilitate a bottom-up approach to justice. Recent decisions in cases which were concerned with, for example, decriminalization of homosexuality, 2 triple talaq 3 and rules of access to the temple at Sabarimala 4 attest to the success of the movement. However, women in India still endure egregious forms of sexual violence 5 without hope of full legal protection.
The landmark Vishaka 6 case centred on the horrific gangrape of Bhanwari Devi, a social worker who was brutalized for attempting to stop a child marriage. A PIL was filed by several NGOs (non-governmental organizations) under several articles of the Indian Constitution guaranteeing the fundamental rights to equality, non-discrimination on the basis of sex, freedom to practice any profession and protection of life. 7 In a significant step for women’s rights, the Supreme Court bench, helmed by Justice Verma, declared the rape of Bhanwari Devi a blatant violation of these fundamental rights and further emphasized the need to embrace CEDAW 8 , specifically General Recommendation 19 regarding violence and equality in employment (Vishaka, 1997). By linking the Constitution to international human rights conventions, the bench acknowledged the need for ‘an effective alternative mechanism’ and adopted the Vishaka guidelines on prevention of sexual harassment of women in the workplace.
Two notable cases upheld Vishaka and subsequently expanded its scope. In AEPC v. A. K. Chopra, 9 the Supreme Court applied CEDAW to fill the lacunae in domestic law, ruling that the attempt to sexually harass a woman was included within the purview of sexual harassment. The bench noted that the harasser’s acts ‘were against moral sanctions and did not withstand the test of decency and modesty’ (AEPC v. A. K. Chopra, 1999). In its reasoning, the Court had accorded significant weight to one witness’s statement. The witness had approached the victim to inquire why she was distressed, only to be informed that she ‘could not tell her, being unmarried’ and hence ‘could not explain what had happened’. The fact that the victim was unmarried was sufficient evidence for the Court to assume that she did not engage in premarital sex or indeed, even know what sexual encounters entailed. Therefore, her morality and chastity formed an integral part of the Court’s interpretation of what constituted ‘unwelcome’ advances amounting to sexual harassment. This is the type of social perception that pervades Indian society. For example, equating ‘unmarried’ to ‘virginal’ is a standard presumption prominent even in the Indian healthcare sector, which is detrimental not just to women’s sexuality, but women’s reproductive health. Gynaecologists prefer to use the term ‘unmarried’ when documenting a patient’s medical history. Out of five gynaecologists I personally have visited in the cities of Chennai, Bangalore, Delhi, Ahmedabad and Mumbai, three doctors asked me if I was ‘married’ without any follow-up questions about whether I was sexually active (unmarried or not). Based on these widespread standards of morality, I argue that there is evidence from these Court rulings to suggest that a woman’s virginity has clearly emerged as a legal yardstick to determine whether sexual harassment has occurred. This begs the question then, in the AEPC case mentioned above, whether the Court may have ruled differently, had the victim engaged in premarital sex. Alternatively, had she unflinchingly articulated what she endured, would the bench have ruled in the same way?
A second significant case relying on Vishaka was Medha Kotwal Lele v. Union of India, which was initiated by a letter that recorded multiple cases of sexual harassment due to the failure to implement the Vishaka guidelines. The Court responded by directing state governments to revise existing laws to ‘protect women from any form of indecency, indignity and disrespect at all places’. (Medha Kotwal Lele v. Union of India, 2012). This is succeeded by a particularly patronising paragraph in the judgment: ‘…After all they women have limitless potential. Lip service, hollow statements and inert and inadequate laws with sloppy enforcement are not enough for true and genuine upliftment of our most precious population–the women’. In my analysis below, I elaborate on how such language hinders the effective regulation of sexual harassment.
These rulings were followed by the brutal gangrape and death of Jyoti Singh Pandey in the winter of 2012, which ignited nationwide protests demanding justice. The state then established a committee, led by Justice Verma, to issue a report on the regulation of sexual violence (Justice Verma Report, 2013).
The Verma Committee Report
The Report included recommendations on criminalizing marital rape, (Justice Verma Report, 2013, p. 117) amendment of Section 354 of the Indian Penal Code to shift the focus from ‘outraging modesty’ to ‘unwelcome threat of sexual nature’ or ‘unwanted advances’ as well as an entire chapter on sexual harassment in the workplace. In this chapter, the Report justly criticized the provision on conciliation between complainant and harasser, in addition to the imposition of penalties for false complaints, which were described as ‘a completely abusive provision and intended to nullify the objective of the law.’ The Report observed that students had been excluded from the ambit of the Act along with members of the agricultural sector and armed forces. Additionally, the need to interpret ‘unwelcome’ in the definition of sexual harassment was highlighted. The Report further cautioned against conferring the powers of civil courts on the Internal Complaints Committee (ICC), as its members may not necessarily possess legal backgrounds. The Act mandates that the ICC be constituted of regular employees of the organization and one NGO representative, yet there are no further qualifications required from this decision-making body (Sexual Harassment Act, Section 4). In my opinion, the Verma Committee’s overall approach was progressive, as it rejected earlier precedents which invoked traditional notions of sexual morality and instead incorporated language more befitting of rights discourse. Notably, the Committee stated that the Sexual Harassment Bill did not reflect the spirit of the Vishaka judgment.
Pitfalls of the Act
I argue that the Act caters to a complainant from a specific location in Indian society. The absence of any reference to the agricultural sector and armed forces is appalling, as 42 per cent of Indians work solely in agriculture (World Bank, 2018) and 13 per cent of the Indian Air Force comprises women, with the Defence Minister announcing plans to increase female representation to 20 per cent. (The Tribune, 2019) This indicates that women in these sectors were not given sufficient consideration by the law-makers. This omission will only result in further dividing Indian women, compounding what they already face: rigid hierarchies in race, caste, class, religion and sexual orientation.
This lacuna is visible even in the wording of the provision penalizing false and malicious complaints which takes a pitiful stab at reassurance by stating that inability to substantiate a claim would not attract the provision, as such an allegation requires proof of malicious intent (Sexual Harassment Act, Section 14). However, as the Verma Committee stated, this defeats the very purpose of the legislation itself. The Act already places the burden of proof (to substantiate a claim) on the complainant. To impose a further penalty would discourage women from coming forward at all. Catharine MacKinnon, in her seminal study on sexual harassment, notes that cases often go unreported because most women ignore harassment, hoping the harasser will be satisfied and stop (MacKinnon, 1979, p. 48) This is due to the stigma associated with complaints, resulting in the woman being branded a ‘troublemaker’. This stigma is even stronger in India; for example, a Dalit woman does not hold the same power to come forward and file a complaint, simply because the hierarchy of caste accords different women different statuses in Indian society. As the Act was not drafted from an intersectional perspective, the legislation makes an inherent assumption that the complainant possesses the power to come forward and file a complaint of sexual harassment.
As stated earlier, the Act received criticism for being gender neutral (Nishith Desai, 2018; The Telegraph, 2018). Criticism now comes from two different factions: a) the earlier faction that claims men can be harassed by women and require equal protection, and b) another group which argues that the minority rights of the third gender are ignored. I vehemently disagree with the former, as it is a purely male perspective that assumes all genders are equal to begin with and can assert equal power in all workplaces. The lack of gender neutrality was the argument raised by law firms upon the enactment of this legislation, primarily because they were reluctant to impose a higher standard of responsibility on (predominantly male) employers. Indeed, MacKinnon observes that the very act of sexual harassment, in most cases, is an employment practice that would not have occurred if the victim’s sex had been different. (MacKinnon, 1979, p. 195) However, the exclusion of the third gender is certainly a valid criticism, as this minority endures severe discrimination in the workplace, despite the 2014 Supreme Court judgment that officially recognized the third gender. 10 If Indian Courts are already inclined to make rulings based on prevailing social norms for women, how can gender non-conforming folk expect any form of protection in workplaces? The Act is thus exclusionary at the very outset, as it uses heteronormative assumptions to further propagate the gender binary. These social norms are evident in the theoretical foundations of the legislation, discussed below.
Issues Posed by the Theoretical Foundations of the Act
Perpetuating Norms of Sexual Morality
Most significantly, the Act facilitates the reinforcement of the standards of conservative sexual morality prevalent in Indian society. The Act is not a criminal legislation, yet Indian criminal law impacts the Act, due to present-day legal assumptions regarding chastity and victimhood. Victorian attitudes toward sexuality were introduced in India by colonial law, reflected in provisions of the Indian Penal Code 11 (IPC), for example, Section 354, which ties ‘outraging modesty’ to the ‘decency of a woman’. Such legal reasoning is demonstrated in past Supreme Court rulings, for example, the 1995 case where the Supreme Court ascribed the dictionary meaning of modesty as ‘womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct’ and concluded that the ultimate test for outraging modesty under the IPC is one which is capable of shocking the sense of decency of a woman. 12 Notably, this was the notion of sexuality popularized by the Victorian bourgeoisie which enforced silence on all sex-related matters. (Foucault, 1990, p. 3) As noted by authors such as Mrinalini Sinha, Indian women witnessed a historical moment of change during women’s mobilization in Gandhian nationalism, which sparked female participation in politics although this did not necessarily change traditional gender ideologies (Sinha, 2014, p. 21) Furthermore, Ratna Kapur has criticized the Hindu right for seeking women’s liberation firmly within the context of a specific Hindu family form and marital relationship (Kapur & Cossman, 2019, p. 286). Kapur’s observation is relevant now more than ever, in light of the recent legislative trinity of discriminatory legislation: a) the Citizenship Amendment Act, b) National Register of Citizens, and c) National Population Register (Economic Times, 2019; Hindu, 2020). The policing of sexuality in the guise of ‘protection’ of women, is especially pernicious for India, where diversity demands that we adopt a more pluralistic approach to different family structures, rather than Brahminical notions of the ideal Hindu household. These notions trickled down from the executive into criminal legislation, and now taint the Act by granting the ICC unbridled power to ‘assess any evidence that may be relevant’ (Sexual Harassment Act, Sections 11 & 14). As stated above, in the absence of a legal standard for ‘unwelcome advances’ under the Act, there is nothing to prevent these members from considering the way the complainant dressed or conducted herself in their deliberations. For example, if the complainant lived with her partner and was unmarried, therefore engaging in premarital sex in the public eye, would the ICC prioritise a woman’s ‘virtue’ in considering whether her harasser’s advances were ‘unwelcome’?
Shifting the Focus from Victimhood
Another issue posed by the current regulation of sexual harassment is that of the victim stereotype. Srimati Basu asserts that criminal law legislation relies on essentialized notions of female victimization and female sexual passivity to offer women protection in the form of criminal sanctions by the state (Basu, 2011, p. 194). ‘Victim feminism’ has generated debate amongst feminists, with one view contending that victim feminism must be rejected in favour of ‘power feminism’ as advocated by Naomi Wolf. Power feminism focuses on reclaiming women’s agency as an alternative to the victim subject (Wolf, 1993, p. 92). Elizabeth Schneider has rejected this dichotomy between victimization and agency for being too simplistic, as it fails to grapple with the systemic nature of women’s subordination and women’s active efforts to resist it (Schneider, 2000, p. 75). Yet, Schneider does not disregard the victim location as she accepts that not all women are privileged to assert this power. This is particularly relevant for sexual harassment in India, where women face multiple axes of oppression on the basis of class, religion, sexual orientation and caste. The level of privilege would hence differ across these categories and even amongst different industries. Therefore, the victim subject can be a standpoint for excluded minorities and other disadvantaged categories of women. Women at the crossroads of different categories could share the location of the victim to be allowed to speak. However, doing so under a legislation such as the Act, does not provide this shared location. The legislation was enacted with a very specific complainant in mind–one who is a middle-class, straight, married woman following the Hindu family archetype.
I concur with Schneider’s critique of over-simplification of the victim–agency dichotomy as I believe that the complexity of oppression and resistance must be examined within each individual context and set of circumstances. But I argue that the Indian context demands that we rethink our emphasis on victimhood as sexual morality in India is inseparable from victimhood. To substantiate my argument, I refer to a paragraph which reflects this link in the abhorrent High Court ruling in the Jindal Global Law School rape case. The bench opined that ‘the testimony of the victim offers an alternate story of casual relationship with her friend, experimentation in sexual encounters, and these factors offer compelling reasons to consider the prayer for suspension of sentence favourably, particularly when the accused themselves are young and the narrative does not throw up gut-wrenching violence, that normally precede or accompany such incidents.’ 13
Another recent ruling which held that having sex on the false promise of marriage is ‘tantamount to rape’ is also relevant. 14 Finding that there was no evidence of the accused’s intention to marry the prosecutrix, the Court held that her consent to pre-marital sex was consent on misrepresentation of fact under Section 90 of the IPC, regarding ‘consent given under fear or misconception’. 15 These rulings denote a judicial trend in the present day, where sexuality is inseparable from the two prongs of victimhood and virtue. I assert that this focus limits our capacity for meaningful rights discourse. Why must women have to prove themselves as innocent according to a certain definition of virtue and/or whether they were subjected to ‘gut-wrenching violence’ to determine whether their rights were violated? Within the ambit of sexual harassment in the workplace, I argue that a correction of this reasoning requires a re-evaluation of what constitutes sexual harassment.
Re-evaluating the Meaning of Sexual Harassment
My diary excerpts from 2015 to 2018 depict my own struggles in a formal organization entrenched in patriarchal culture.
06/07/2015
I overhead a lunchroom conversation about an ongoing case of sexual harassment against the firm. No one wants to talk about it, especially since I’m new here. I know that the female partners of this firm are on an Internal Complaints Committee. But they seem so subservient to the managing partner. Could he simply compel them to rule in his favour?
14/09/2016
I was informed that I waste time on frequent bathroom visits. Apparently bathroom visits every three hours are not acceptable. So I’ve switched from tampons to pads.
23/11/2016
One of the female partners who has been trying to conceive for over two years had to take the day off because she had another miscarriage. She is devastated. The managing partner accused her of taking ‘too much vacation leave to accommodate all her miscarriages’.
11/05/2017
This treatment is degrading. I am not allowed to express opinions, only type what he dictates to me. He sends me to ‘fetch’ his documents and stationery. I must physically run to him when ‘called’—when I didn’t rush to him today, I was berated for my complacency.
16/03/2018
A pregnant woman is entitled to six months of maternity leave under the Maternity Benefits Act, yet he cut the salaries of two pregnant partners. Another woman had a baby in September and she wasn’t awarded her bonus. She confronted him and he pretended that there was an administrative mistake (impossible, seeing how we have no HR department and he is the sole decision-maker). She paid for her request today. He spent half an hour verbally abusing her and my senior partner, with sexist rhetoric about women’s preoccupation with their children and households.
23/03/2018
Today, I found some handwritten notes inside the Sexual Harassment Act; a checklist for his file in the sexual harassment case–in the senior-most female partner’s handwriting. But she’s a member of the Internal Complaints Committee. If she’s been compiling his documents, this just proves that he bought their decision. I cannot stay here. This isn’t safe.
It has taken me considerable time and distance to fully comprehend the happenings at this law firm, as the acts and incidents I have noted did not fall within the classic definition of sexual harassment. MacKinnon’s much-cited interpretation of sexual harassment links the act (of sexual harassment) itself to sex, describing it as an exercise of power by a male, which is dominance eroticized (MacKinnon, 1979, p. 162). While sexual desire may trigger several cases and forms of sexual harassment, I view this theory as unidimensional, as it fails to capture all aspects of abuse which occur on the basis of sex. A different theory of sexual harassment is proposed by Vicki Schultz, who rejects what she termed the ‘sexual desire-dominance paradigm’, arguing that sexual harassment is a means of maintaining masculine work status and identity, rather than expressing sexual desire. (Schultz, 2018, p. 27) Schultz connects harassment to broader forms of sex discrimination and inequality, even advocating gender neutrality on this basis, because she states that some men harass women as well as ‘lesser men’ to preserve their dominant workplace position and related sense of manhood. 16 According to Schultz, targeting only sexual misconduct without addressing related patterns of sexism and deeper institutional dynamics has serious shortcomings that risk undermining the broader quest for gender equality. She observes two principal factors in the industry dynamic, namely, (a) sex-segregated work, which assigns traditional ‘female-oriented’ jobs to women and (b) subjective unconstrained authority which manifests in the use of subjective selection systems for hiring, assigning, promoting, paying, firing, and evaluating employees.
The episodes described in my diary entries fulfil both these criteria. The managing partner indulged in acts that may not include sexual advances or contain sexual undertones per se. Yet, this conduct was obviously fuelled by the need to exert masculine superiority and retain traditional gender roles over female subordinates. His daily acts may not constitute ‘grand’ gestures of oppression that would ordinarily be considered sexual harassment, however these micro-aggressions nonetheless constitute consistent acts of oppression on the basis of sex. The attempt to restrict his female employees to a traditional ‘secretary’ role is demonstrative of this intent. Indeed, enduring micro-aggressions on a daily basis only normalizes this type of abuse. This allows the preservation of the hierarchy of gender in the work environment. I kept telling myself that there was no ‘outright’ barefaced act of sexual harassment, and that I had no grounds for a legitimate complaint. As illustrated above, even if I had complained to the ICC, it is unlikely that I would have received a favourable decision, as there is no guarantee of impartiality, free from bias tilting towards either the employer or prevailing societal gender norms.
Conclusion
The efficacy of the Act is impeded by practical issues surrounding its provisions and enforcement. However, it is the framework within which this legislation was adopted that is most problematic, as this framework applies a standard of sexual morality that has seeped into criminal law and sexual harassment legislation. We cannot be truly liberated if we continue to engage within this framework. My theoretical analysis reveals that sexual harassment in the workplace is a systemic issue that demands complete structural reform, beginning with our own notions of women’s sexuality and the definition of sexual harassment. My personal narrative records acts motivated by misogyny which evade the Act as it exists today. Hence, an inquiry into the different kinds of harassment that emerge from discrimination on the basis of sex is a starting point to understanding the full extent of gender-based abuse.
My experience accounts for my own privilege across societal hierarchies, who had the choice and ability to walk away. A comprehensive inquiry would, therefore, not be restricted to the environment that the Act seemingly caters to, but instead consider complainants who may have to endure discrimination on multiple axes such as religion, caste, class and sexual orientation - and extend coverage to include gender non-conforming persons. This would facilitate the development of a new, dynamic definition of sexual harassment which would take into account all acts in the workplace which are damaging to women, which have originate from discrimination on the basis of sex.
Footnotes
Declaration of Conflicting Interests
The author declared no potential conflicts of interest with respect to the research, authorship and/or publication of this article.
Funding
The author received no financial support for the research, authorship and/or publication of this article.