The Indian media has overwhelmingly acknowledged the fact that the Indian version of the Sexual Harassment at workplace Bill is flawed and needed to be amended immediately .
The Government is now on the back foot and is using the tried and tested tactic of stating that let the bill come into place and then we will look into it . However this tactic was also adopted during the creation of the heavily misused Domestic Voilence Act 2005 . Once the act came into being a parallel industry starts around it and then it is next to impossible to change the law . The Indian people have demanded that this time the draft of the Sexual harassment act be discarded that a new draft be made considering making it gender neutral .
The Demand for Gender Neutrality is nothing new . In fact way back in 2007 over 400 women's organizations under WomensPowerConnect (WPC) themselves asked for the bill to be made gender neutral as the below news article elaborates.
Sexual harassment at workplace Bill will spawn a new extortion industry
This press conference is being conducted by a coalition of NGO’s under the umbrella of the Save Indian Family Foundation (SIFF) . All NGO’s are non-funded , non-profit NGOs fighting for , Gender Equality , Judicial accountability and balanced laws by creating awareness towards the creation of balanced gender neutral laws so that they are both constitutional and provide justice to all individuals irrespective of gender and sexual orientation. This press conference has been scheduled to highlight the undemocratic law making process of India and expose the fascist nature of the same. Sexual Harassment at Workplace Bill (SHWB) is in its current form is unacceptable for a sane and just society because
1. It out rightly violates the essence of article 15 of Indian constitution which prohibits discrimination against any citizen on the grounds of religion and sex
2. SHWB initiates contempt of court by violating the guidelines of the land mark SC judgment of Vishakha which was passed in 1997
3.There is a clear intention to influence decision making by mandating appointment of people, “committed to the cause of women” .Such compulsions categorically rule out Sexual harassment of Men without any basis.
4. It legally mandates the suppression of false cases with an intention to give a façade of proper use by restricting the use of RTI act on the law.
5. It legally mandates that punishment for misuse be made “discretionary” and not “mandatory “so that misusers are safeguarded
6. Allows the bargaining of “punishment” for “settlement” with a clear intention to extort money from the trapped individuals
7.The Drafting committee arrogantly ignored overwhelming public opinions asking for the bill to made gender neutral and thereby exposed the fascist law making attitude with which gender laws are drafted in India.
Controversial realities of the Sexual harassment at workplace Bill
1. Constitutional Violation
A subsection of an article in a constitution (Article 15(3)) cannot be used to overrule the main article in the constitution (Article 15). Article 15(3) of the constitution merely provides for special provisions for women and children, it does not permit the framing of special laws which will violate essence of Main Article 15. Had that been the case the constitution of India will become self contradictory. Article 15(3) of the constitution although does allow the government to make special provisions for women, but the same article cannot be used to overlook the fact that women too can be perpetrators of the crime and absolve women from getting prosecuted for committing the same offence.
2. Clear Violation of Vishakha Guidelines
The SHWB is based on Vishakha guidelines of the Honorable Supreme Court. The guidelines mentioned in the judgement nowhere mentions that a prequalification to be a member of the Sexual harassment Committee is that the person “shall be committed to the cause of women”. However, by involving NGO’s “committed to the cause of women” the government of India has blatantly violated the honourable Supreme Court guidelines. Such deliberate language will only intensify the existing bias against males which is inherent in the 15 odd anti male laws currently existing.
3.Economically disastrous recommendation
By making it mandatory to pay remuneration to the committee members irrespective of instances of sexual harassment reported creates unnecessary financial burden on companies. In times of global recession such financial burden will only lead to further economic losses to Indian companies. It will lead to an increase poverty , crime and corruption.
4. Justice delivery mechanism will become a fish market
NGO’s and their appointees will have to be paid after getting appointed to the committee even if there are no instances or cases of Sexual Harassment at all. The involvement of the payment model will lead to NGO’s selling justice for a price and NGO’s competing with each other get appointed into committees to get financial payouts.
5. Punishment for misuse is not “Mandatory”, but “Discretionary”
By making punishment for misuse discretionary the bill opens the scope for negotiation between the parties to either avoid punishment or settle the matter. This provision will also lead to motivation for filing more and more false cases to settle personal scores - A trend very commonly observed in the misuse of section 498a and Domestic Violence Act of 2005.
6. News of False cases/Misuse will be legally suppressed
In a democratic nation transparency is the key to success of governance. To ensure the same the government of India has benevolently gifted the RTI act to the citizens of India, but the same government is including provisions in this bill to prevent the use of RTI act to unearth false cases filed under the act. This is nothing but double standards on part of the government.
4. Bargaining “Punishment” with “settlement “ of cases
By legally providing a mechanism to bargain punishment with settlement the act itself becomes a tool for “legal extortion”. This will also initiate a rate race among NGO’s to have themselvesrepresented in various companies in order to grab a pie of settlement .Such trends will undermine the real essence of the act and a parallel extortion industry will start spawning .
5. Unconstitutional and undemocratic process followed during the drafting of the bill
RTI responses has exposed that during the drafting of the Sexual Harassment at workplace bill the WCD ministry had received numerous representations from concerned Indian citizens to make the SHWB law gender neutral but did not heed to any one of them. If public opinion of making the law gender neutral is to be finally totally trampled with, then why carry the farce of calling suggestions, in the name of democratic law making, from the citizenry and then discard it ?
The ministry chose to trample all the representations by the below outrageously sexist statements degrading the modesty of men as compared to women. The WCD ministry stated the below.
“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”.
1) “The overwhelming nature of sexual harassment is sexual harassment of women on account of their female sex”
This is a totally unscientific “assumption” that the WCD makes. The WCD Ministry or the Supreme Court does not have any data to back this argument because the government of India has not spent either a rupee or conducted a single credible study on men’s issues in this area. On the contrary, credible research all over the world concludes that men too are increasingly falling victims to sexual assault crimes every year. The US, the UK , whole of European Union and most of the countries have gender neutral sexual harassment laws. Drafting laws based on hallucinated assumptions can lead to disastrous social consequences and cannot be allowed.
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? The comments of WCD are openly violating Article 15 of the Constitution, which prohibits against any discrimination on grounds of sex and cannot be held with any credibility.
3) “Protection of men is also not the mandate of Ministry of WCD”
The WCD ministry is absolutely right in its above observation. Having said that as they officially accept they do not represent more than 50% of the population and hence they have no moral or social right whatsoever to draft a law affecting the whole population of India. It is as good as saying that the honorable the Prime minister will allow the drafting of the law concerning Hindus and Muslims by a ministry that openly claims that it does not have the mandate to protect the Muslims. Will it not lead to religious war? Then how such stances of the WCD cannot incite gender war?
The coalition of multinational NGO’s supporting this press conference strongly opposes the Bill in the present form and demands that the current draft made by the WCD be discarded and a fresh draft is created taking into consideration the following points.
a) The Sexual Harassment at Workplace Bill must be reviewed and amended immediately to make it Gender Neutral.
b) Heavy punishment must be given those who are responsible for ignoring the overwhelming public response and openly discriminating men and violating article 15 of the Constitution of India which prohibits discrimination against any citizen on grounds of religion and sex as well as wrongly interpreting Article 15(3) of the Constitution, by EXEMPTING women from punishment for committing the SAME crime, as Men, of Sexual Harassment.
c) The mandatory inclusion of National Human Rights Commission (NHRC) as a watchdog group in every gender law making committee so that men are not deliberately discriminated against and Article 15 of the Constitution is not violated again and Article 15 (3) is not wrongly interpreted and that the people’s opinion are not brutally trampled as has been done in the Sexual Harassment at Workplace Bill.
d) The mandatory inclusion of corporate bodies like FICCI and CII and a corporate committee comprising an equal number of male and female members from the industry so that interests of both genders are kept in mind while drafting laws to truly achieve a equal opportunity workplace.
e) Involving external NGO’s based on legal knowledge and their background of delivering justice on merits and not merely being women’s rights champions.
f) Allowing the reporting of all cases true or false in the media so that the magnitude of use or misuse can be measured.
g) Provision of any sort of settlement must be removed. The accused must be either punished or the complaint must be deemed as false and action taken against the complainant. The spawning of the extortion industry must be stopped at the root.
h) Since the laws that are drafted by the Women and Child development will only lead to gender imbalances and advancing social destruction, the Women and Child Development ministry must be removed from the law making process with immediate effect.
All the western countries have Gender Neutral Sexual Harassment at workplace laws
1) All employers are committed to maintaining a workplace where EACH employee's privacy and personal dignity are respected and protected from offensive / threatening behavior, irrespective of gender.
2) It is incorrect to presume that only women are prone to sexual harassment. With growing urbanisation, mindless westernization, and an increasing number of employee workforce positioned globally the issue of sexual harassment at workplace has acquired new dimensions. Men are as prone to being sexually harassed as women are.
3) The Sexual Harassment at workplace policies prevalent in most of the nations today take cognizance of the facts mentioned above and are gender neutral. According to a report on Sexual harassment at workplace by United Nations Economic Commission of Europe - Austria, Belgium, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Hungary, Ireland, Italy, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, The Slovak Republic, Slovenia, Spain, Sweden and the United Kingdom have policies for Sexual Harassment that are gender neutral.
Link :- A Report on Sexual Harassment in the Workplace in EU Member States by United Nations Economic Commission of Europe (UNECE), which mentions the relevant Sexual Harassment policies at EU member nations. It is interesting to note that EU nations have a gender neutral Sexual Harassment policy.