Indian Democratic law making process
In a democratic law making process the government creates laws in accordance with the public opinion expressed by the people. In fact, democratic law making derives its authority from the people. Public opinion is considered to be the most essential element for successful working of democratic communication in the system. Public opinion is the expression of the views of citizens. No government can afford to ignore it. In a democratic law making process that is required to be followed. In India, the government must always be cognizant of public opinion and take note of the same while formulating laws for the common good. Governmental policies and laws are invariably affected by the people’s opinion on various issues. Public opinion is the best barometer that helps any government to enact laws given the current situation. Public opinion in law making process also helps in
a) Acting as a guide to the law drafting process.
b) Watchdog that prevents the government from creating badly drafted one sided laws and violations of civil liberties
c) Protects the rights and liberties of all citizens irrespective of gender and age
d) Protects the citizens from laws pushed for by people with vested interest
Public opinion on current and proposed gender laws are frequently ignored
Unfortunately in India although the law making process include a step where the government is required to invite public opinion on a law draft, seldom is this opinion considered. The language of the law is heavily influenced by the requirements of pressure groups with vested interest. Laws are seldom neither drafted nor amended based on public opinion although the process is ironically democratic law making.
Public opinion on current gender laws
India is today witnessing phenomenal abuse in the areas of gender laws like Section 498A of the IPC and The Protection of Women from Domestic Violence Act along with the various maintenance laws like Section 125 of CrPC, Section 18 of The Hindu Adoptions and Maintenance Act, Section 24 of the Hindu Marriage Act and the rape laws to name a few. Not a single day goes by where in there is not an article in the press, or a discussion on TV or an internet editorial wherein the need to amend these laws is stressed upon. There has been millions of gallons of ink spilled on explaining how these laws are destroying the family system, how they are unconstitutional, how they are harassing the innocent and unable to protect the real victims, how they are burdening the Judicial docket with malicious litigations and finally how they need to be made gender neutral. There have also been hundreds of seminars, Multitude of Supreme Court and lower court judgments and reams of data have been gathered in the process to show the government that the public opinion clearly and overwhelmingly supports the amendment of these laws.
Why have the laws still not changed
So why has the laws not changed even though the majority of the Indians want the laws to change? The Indian law making process shows an outwardly appearance of being dependent on public opinion, but on the inside it is actually controlled with an iron hand by pressure groups with vested interests. Gathering public opinion on creating and amending laws is but a farce and hogwash and the government seems to abide by it just because it has a mandate of simply “gathering” public opinion. Feminist Pressure groups are today successfully holding to ransom the entire public opinion of the people of India and also block the Home ministry’s keenness to amend these laws. Even the Indian judiciary watches helplessly as their comments and suggestions are ignored for decades owing to the control influenced on the government by these people with vested interests. On the issue of Gender laws like Section 498A and the Domestic Violence Act the opinions of the Supreme Court and the Law commission of India which are the two apex law formulating bodies of India hold little value or respect in the eyes of the government which is instead keen on bending over backwards to please these pressure groups . Below are 2 very recent examples where few people with vested interest have successfully trampled overwhelming public opinion and stopped laws from changing.
a) The Home ministry in a communication admitted that they are unable to amend section 498A due to protests from some people with vested interest
b) Home Ministry did not notify section 41A of the CrPC amendments owing to the protests from some lawyers clearly working to safeguard their own bail revenues.
The government has for decades ignored the good recommendations and proposals from the Supreme Court or the Law Commission owing to the pressure exerted on it by these people working for their vested interests. If such people ultimately determine India legal policy then why do we even conduct the democratic drama of asking for public opinion on law making and amending? Why do we even call the law making process democratic?
The Sexual Harassment Workplace Bill (SHWB) is a textbook example of how public opinion was trampled by some people with vested interest
The SHWB is recent bill where overwhelming public opinion was ignored by the WCD Ministry.
The Sexual Harassment Bill was the outcome of an Apex court Judgment in 1997 which was in response to a Writ Petition WP No 666-70 of 1992. It is pertinent to note that laws and opinions of courts change very quickly with time and it is almost 20 years since the WP was originally filed. The condition, motivation and numbers of women in the workforce have swelled massively since 1992 and women now get an equal opportunity in almost all areas of employment either through merit or reservation.
Public Opinion about Sexual Harassment in 2007
The Sexual harassment act if drafted in the year 1992 might have received major support from the Indian Public to make it a women’s only law and not offer any protection to men from sexual harassment. However public opinion changes with time and our society has undergone massive changes since 1992 when the WP was filed. Public opinion in 2007 states the Sexual Harassment at Workplace Law must be Gender Neutral. RTI’s provided a clear insight into the government’s law making process and it has been discovered through RTI’s that during the drafting of the Sexual Harassment at workplace Bill there were innumerable representations from the public seeking to make the bill Gender Neutral. Also there was not a single comment / recommendation received from the public asking for the bill not be made gender neutral. This clearly shows that as of 2007 and the subsequent years the Indian public opinion has shifted and now the Indian citizens want this law to be a gender neutral law. The times have obviously changed and men today are increasingly falling into the trap of marital law abuse and are made victims under various different laws by their spouses or female relatives. The National Crime Records Bureau states that over 57000 husbands are driven to suicide every year as compared to 29000 wives. The rate of suicide of husbands in itself shows the changing scales as far as empowerment and need of protection is concerned. Even Law Commission in its 172nd Report wanted Laws to be made Gender Neutral.
How the WCD Ministry trampled public Opinion in the SHWB
The below links points us to a PDF that shows the relevant areas of the RTI response received from the WCD, highlighting the file notings during the drafting process of the SHWB. The first column titled “Gist of comment/suggestion” lists the representations received from the Indian public. The second column titled “Number of comments” shows the number of such representations received and the third and final column titled “Response” lists the reply that the WCD ministry has for accepting or rejecting these representations. The PDF depicts how the WCD ministry deliberately trampled overwhelming public opinion seeking a gender neutral sexual harassment at workplace act .
From the first and second column it is clear that the WCD ministry had received numerous representations to make the SHWB law gender neutral but did not heed to any one of them. The ministry instead chose to trample all the representations by the below outrageously sexist, and statements degrading men’s modesty.
Below are the outrageous reasons for the WCD Ministry for not making the bill Gender Neutral
“The overwhelming nature of sexual harassment is sexual harassment of women on account of their female sex. Harassment of men cannot be put on the same footing character wise or incidence wise. Protection of men is also not the mandate of Ministry of WCD”.
The analysis of the statements of the WCD exposes the extremely poor and downright dubious quality of law drafting in India. Let us look at the grossly uneducated statements of the WCD one by one.
1) “The overwhelming nature of sexual harassment is sexual harassment of women on account of their female sex”
This is an unscientific “assumption” that the WCD makes. Laws are not based on assumptions but on hard facts. The WCD Ministry or the Supreme Court does not have any data to back this argument. Credible research all over the world concludes that men too are increasingly falling victims to sexual assault crimes every year. India does not have a procedure of even tracking sexual harassment crimes committed against men. However in the western world which has tracking systems, sexual harassment complaints from men who have harassed by women and other men are rising every year.
The US Equal Employment Opportunity Commission’s (EEOC) data in the below link shows that the percentage of complaints from Men increased from 11.6% in FY 1997 to 16% in FY 2009 showing that men are increasingly being victimized. The total number of sexual harassment cases in 2009 has now increased to 12,700 per year.
http://www.eeoc.gov/eeoc/statistics/enforcement/sexual_harassment.cfm
The percentage of men sexually harassed and their numbers (12700) is simply far too high to be ignored. Given the above data the statement of the WCD ministry does not have any credibility and is at best be termed as a poor and unscientific assumption made to create a Gender Biased law.
2) “Harassment of men cannot be put on the same footing character wise or incidence wise”
The WCD ministry must be called upon to explain the meaning of this sentence and on what basis they concluded that the harassment of men is on a lesser footing than women. Does the WCD consider men any less of human beings than women? Is the stigma and suffering of a man any less than women if sexually harassed at workplace?
This analogy of the WCD Ministry is totally against the Universal Declaration of Human rights adopted by the United Nations. The WCD Ministry has no right or mandate to degrade the modesty of men and claim that the modesty of women is far more valuable than the modesty of men and hence idea to protect men can as well be ignored. The time has come when men and women must be afforded equal protection from all crimes in home, office or otherwise. No one can expect special pamperment based on their gender especially when data overwhelmingly shows that men too are increasingly being victimized by the same crime that women are protected against. This highly biased and sexist statement in itself is evidence enough that the law making process in the sexual harassment act was nothing more but a farce and that ministry has a biased one sided agenda which does not rely on any research on sexual harassment against men, nor does it take into account the sexual harassment laws that have been formulated by other countries.
The Government cannot blatantly ignore one gender and deny offering protection to one gender based on such uneducated and sexist assumptions which are clearly without any merits whatsoever. Hence this sexist assumption of the WCD ministry with which it has rejected the overwhelming majority of public opinion to make the law gender neutral is against the democratic law making process and cannot be accepted.
3) “Protection of men is also not the mandate of Ministry of WCD”
The above remark is an outrageously “stupid” comment and exposes the utterly poor quality of law making in India. The WCD ministry has clearly trying to incite a gender war by these statements. It is common sense that any law must be drafted by a ministry or a committee which has the mandate to protects all the sects, genders, religions or parties who can or might get affected by the law. Will the Hon’ble Prime Minister allow the drafting of a law concerning Hindus and Muslims by a Ministry that openly claims that it does not have the mandate to protect the Muslims? It is obvious that this law will be end being heavily biased against the Muslims. This is exactly what has happened here if we replace the term Hindus with Females and the term Muslim with males. Then on the same lines the Petroleum ministry or coal ministry must be given the open license to pollute the atmosphere and cause oil spills since they do not have the mandate of protection of the environment. The ministry for commerce will issue wholesale licenses for hunting Indian tigers to extinction because the protection of tigers an endangered species is not their mandate! The current law making process is somewhat similar to those during the Nazi period, when Nazis, who had no mandate to protect the Jews, drafted laws for the Jews and then called it a socialist law making to the people of the world.
Every law and action has a cause and an effect. By creating laws and not bothering about aftereffects of the same the WCD has demonstrated a fascist law making attitude.
Relieve WCD and NCW from law drafting responsibilities immediately
It is a very true statement as the mandate of the WCD does not entail protection of men, but using this as shield to create laws only for females while males and homosexuals suffer from the same crimes is beyond my understanding. So I respectfully ask which ministry has the mandate to protect men and the homosexuals. In western societies the law makers while making laws normally make gender neutral laws taking into account detailed research and statistics to first determine if the problem affects both sexes and then they formulate laws that protect both sexes. Laws on Sexual Harassment, Domestic violence and Sexual Assault are some of the laws that are gender neutral in the west. However in India the situation is starkly different. The main reasons why most new laws are horribly biased and anti male and anti homosexuals are simply because the ministry that is making the laws has no mandate to protect men and makes laws with clumsy wording and blatant ignoring of principles of natural justice and universal declaration of human rights. Also there is no watch dog to review these laws and make sure that the issues of the genders other than the female are also appropriately represented. On top of it there are some people in the WCD ministry who have vested interest and make laws which are both beneficial to their ideology and interests and also make money for their lawyers.
In order to preserve the democracy in India, after learning of the mandate of the WCD from their own mouth organizations like WCD and NCW cannot be allowed to formulate gender laws any more since they will obviously be severely biased. Laws created by these agencies are unnecessarily inciting a gender war in the country and only leading to wide scale family destruction and mutual hatred between genders.
I strongly demand that the WCD ministry and the NCW must not be allowed to formulate or have any say in formulation of laws effective immediately and all law making responsibilities must be immediately handed over to the Ministry of Health & Family Welfare which will have the mandate of protection of males, females, homosexuals and all citizens irrespective of gender and sexual orientation.
Sexual Harassment at workplace is recognized as a Gender Neutral crime the world over
Sexual Harassment at workplace crimes are gender neutral the world over since all countries recognize the fact that men and women can be equally victimized under this crime. India by making it a male only offence is taking a leap back in time. Below are some of the Examples on what is happening in other countries.
United States
The United States Equal Employment opportunity commission (EEOC) has stated that “sexual harassment filings by men has consistently increased doubling over 15 years“. Consecutively the sexual harassment page of the website of the EEOC categorically states the below statement.
“Both victim and the harasser can be either a woman or a man, and the victim and harasser can be the same sex. “
Consecutively the “Title VII of the Civil Rights Act of 1964” has the provision to protect both a man and woman against sexual harassment from either gender. Although Title VII was designed to empower women in the workplace, there is nothing in the law that limits its applicability to women.
United Kingdom and the European Union
A 2006 government study in the United Kingdom revealed that 2 out of 5 sexual harassment victims in the UK are male, with 8% percent of all sexual harassment complaints to the Equal Opportunities Commission (Britain's EEOC), coming from men. The UK’s “The Equal Opportunities Commission's Code of Practice on Sex Discrimination” clearly spells out that protection from sexual harassment protection is available for both men and women. The European Commission's code of practice on the Protection of the Dignity of Women and Men at Work is used to protect both men and women from sexual harassment at employment.
Sexual Harassment against men goes even more underreported as compared to women
Sexual harassment against men is vastly underreported because most men would never complain or file a lawsuit because of the fear of embarrassment or stigmatization. But this is changing with time. Recent improvement in sexual harassment training, reporting procedures, and “No Retaliation” clauses in the west have probably contributed to an increased likelihood of men also coming forward to file a claim.
A recent wall street journal article titled “More Men Make Harassment Claims” on March 23, 2010 reported the below.
“Stephen Anderson, president of Anderson-davis Inc., a workplace training company in Denver, says filing a claim is often a no-win situation for a man.” If a woman is harassing you, people might think 'What is wrong with you? You should be flattered,' “he says. In cases where another man is the harasser, the victim might be afraid that he comes across as unmanly or homosexual, he says.
“The EEOC doesn't track the sex of the alleged harasser, but Ms. Lisser says the EEOC has observed an increasing number of men alleging sexual harassment from other male co-workers—and not as many cases of men accusing female bosses or co-workers of sexual harassment. Employment attorneys have also seen an increase in man-on-man harassment complaints.”
“Companies have educated employees about sexual harassment for years, but some are making their messages more male-focused to safeguard themselves from potential litigation. Freada Klein, a workplace bias expert in San Francisco, has been advising companies to add examples of sexual harassment levied against men to their training and education programs. She encourages clients to bring up scenarios like public humiliation, bullying and inappropriate banter. "More types of behaviors are put in the sexual harassment bucket when men are the victims," she says.”
The Homosexuality angle has been ignored completely
Homosexual sexual harassment has been documented worldwide and occurs on a large scale in all societies but is never talked about too much. India too has a large number of homosexual couples who lived in the shadows earlier, but now with the Honorable Delhi HC decriminalizing homosexuality there will be a huge increase in male-male and female-female relations in offices too. Sexual harassment at workplace can also happen between two individuals of the same sexual orientation and this bill does not address this in any way. This bill does not have any provisions to protect homosexual men or women from harassment from their same sex partners.
The sexual harassment at workplace must be amended immediately to make it Gender Neutral
There is no doubt that the WCD ministry has deliberately ignored sexual harassment laws the world over, nor has it used credible research on sexual harassment laws and statistics which are easily and widely available, to learn and understand that this crime is gender neutral. I hereby most respectfully reiterate my demands that the firstly WCD Ministry and NCW must be relieved from law making with immediate effect and be replaced by Ministry of Health and Family Welfare and secondly men and homosexuals must be offered equal protection under the sexual harassment at workplace act and thus the bill must be amended to make sure that adequate language in incorporated to achieve the same.
