Wednesday, February 9, 2011
Home Ministry says CrPC Amendments( 41A) have been notified and enforced which implies that arrests under 498a are illegal from here on.
Monday, February 7, 2011
Indian Sexual Harassment Act is essentially an attempt legalize “shakedowns*” of Men in offices under the guise of women protection
* Shakedown :- Extortion of money by blackmail . Used mostly in conjunction with the way the mafia runs its business
Reading, the text of this bill, reminds us, of the quotes of a Great French political economist, Frederic Bastiat, who stated.
“When plunder becomes a way of life for a group of
men women living together in society, they create for themselves in the course of time a legal system that authorizes it and a moral code that glorifies it “
SC’s Vishakha Guidelines has been morphed into an open “Extortion” law
Before we even delve into the current draft of the bill we would like to point out that the Supreme Court of India in Vishakha Vs State of Rajasthan (AIR 1997 SC 3011 ) while framing guidelines clearly stated that “These guidelines will not prejudice any rights available under the Protection of Human Rights Act, 1993”.
However the sheer volume of the violation of the Human rights that the current draft of the law has is truly hard to believe. Credible research data and even common sense has been thrown to the wind and it seems the only motive of this law is to create a legal process of extracting money, in one way or the other.
Is Sexual Harassment of men also not a Violation of Fundamental rights?
This bill is another straight jacketed law that has been created right from the start with the sole agenda of extending protection only to women irrespective of the fact that this offence is completely gender neutral. Although many press and news articles and media have criticized this bill, the WCD ministry has bulldozed this act through the cabinet. This important Bill ignores the fundamental fact that Sexual Harassment unlike rape is not a crime of passion, but it is crime of power and in many instances the harasser can be of the same gender as the victim. We also fail to understand, why the present draft of the bill, completely misses out the important aspect, that Sexual Harassment of Men results in equal violation of the fundamental rights of equality under articles 14 and 15 of the Constitution of India and his right to life and to live with dignity under article 21 of the Constitution and right to practice any profession which includes a right to a safe environment free from sexual harassment. The bill essentially has a highly flawed straight jacket formula that only a woman can be a victim in any case and no man may be ever called a victim or complains of sexual harassment under this legislation just because of fact that he is a man.
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 the essence of the 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 of sexual harassment. However this is what has been done in the Sexual Harassment at workplace bill.
Violation of the Universal Declaration of Human rights
The Universal Declaration of Human Rights states that “all are equal before the law, and are entitled without any discrimination to equal protection of the law”. Article 14 of the Indian Constitution declares that “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”. Unfortunately the present draft of the bill violates both the Universal Declaration of Human Rights and Article 14 of the Indian Constitution.
Exposing the Flaws (hidden agenda) and recommendations
1. The law is gender biased although the offence affects men equally as women
Credible research shows that in India more men than women suffer Sexual Harassment at work
Surveys recently conducted by the Economic times, and Synovate across 6 Indian cities exposed the fact that men face more sexual harassment than women and must also be given protection. As part of this very credible and extensive research 527 people queried in the survey across seven cities in the country - Bangalore, Chennai, Delhi, Hyderabad, Kolkata, Mumbai and Pune. Below are excerpts from the report to expose how often Males are sexually harassed. The report is attached as Annexure 1.
a) Bangalore: - Half of who agreed that they have been sexually harassed at their workplace said they have been harassed by their female colleagues. Only 32% said that they were harassed by Male colleagues.
b) Hyderabad: - 29% of said they have been sexually harassed by their female bosses while 48% accused their male bosses.
c) Delhi: - Numbers are even, with 43% pointing a finger at their female colleagues and an equal number accusing their male colleagues of sexual harassment.
d) 38% of the respondents agreed that in today’s workplaces, even men are as vulnerable to sexual harassment as women. In Hyderabad and Mumbai, 55% of the respondents agreed to this point.
e) Many of the corporate and PSUs, ET spoke to, agree to this new trend and point out that many male employees do not come out in the open and file complaints because they feel they will not be believed, considering India’s social beliefs. They usually seek a transfer to get out of the situation or find a new job.
The Sexual Harassment at workplace policies prevalent in most of the nations today are gender neutral however India takes a drastically different approach. 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, United Kingdom have policies for Sexual Harassment, that are gender neutral. The US and most countries in ASEAN region also have Gender Neutral laws. Even neighboring Pakistan has Gender Neutral Sexual Harassment policies. The gender neutral definition of sexual harassment from US equal employment opportunities commission (EEOC) is attached as Annexure 2.
Recommendation :- Make the law gender Neutral since men too can become equal victims of this crime and empowering women cannot be achieved with disempowering and abusing men and that seems to be the motive of this law.
2. Constitution of Committees and Compensation paid to Committees
Section 7(1) (a) states :- “A Chairperson to be nominated from amongst the eminent women in the field of social work and committed to the cause of women”
Section 7(2) and Section 7(4) of the draft bill speaks about the tenure and remuneration for the Committee members.
Section 7(1) (c) states: - “at least one shall be a woman, to be nominated from amongst such non-governmental organisations or associations committed to the cause of women, which may be prescribed”
Section 7(1) (d), states: - “Provided that at least one-half of the total Members so nominated shall be women”
The Supreme Court’s Vishakha Guidelines on Sexual Harassment on which this law is supposed to be have been framed and structured, 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 the law drafters have given a very feministic twist to this whole idea of involvement of ideological social workers from external NGO’s in Sexual harassment committees. Instead of appointing people who have demonstrated a track record of high integrity and sound judicial approach the bill rather intends to appoint people who shall be “committed to the cause of women”. The use the phrase ‘committed to the cause of women’ in fact finds mention in several places in the draft bill and its connotation only suggests that this will lead to not only inherent bias and prejudice against men in general but also will result in frequent overlooking the merits of the case in order to provide some sort of reward to the woman.
Since a healthy presence of sexual harassment cases within a department would only justify the need for such paid committees to exist, these NGOs who will be driven to justify their existence, grab plum remuneration and a piece of the settlement arising from cases will most certainly encourage women who are not necessarily harassed, but have other grievances with the organization, to file false sexual harassment complaints.
1. People in the committee must be “Committed to the Cause of Justice” and not be paid any compensation.
2. Interested parties must provide this service free to the society and there must be no burden to make payments to these people to pass decisions sexual harassment cases. Retired judges and retired senior female and male employees of the same organization can be requested to sit part time on these committees after retirement.
3. Compensation if a must be kept limited to Rs 500 per case and must be paid on a case by case basis so that there be among employees to sit on a committee to get lucrative compensation.
4. Any stipulation with respect to number of women in the Committee is unnecessary and makes a prejudiced assumption that only women are capable of arbitrating complaints.
3. Provide clarification on Power of the Committees
Clause 11(2) states: - “..the Internal Committee or the Local Committee, as the case may be, shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 when trying a suit in respect of the following matters, namely:—
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of documents; and
(c) any other matter which may be prescribed.”
A group of women from NGO’s with no legal mandate and calling themselves “committed to the cause of women” cannot be vested with the same powers as are vested in a civil court under the Code of Civil Procedure. The complainant must also be mandated to present their evidence under oath just like anyone else, so that if proved lying she can be tried in a civil court just like an ordinary perjury case.
Also the authorities of the committee must be clearly defined and section “any other matter which may be prescribed.” must be summarily deleted since this can lead of a wide ambit of power in the hands of the committee which might have no bearing to sexual harassment. This clause might lead to committee assuming a position of judges within the organization and deliberating on all issues whatsoever.
4. Bargaining “Punishment” with “Settlement” (Settlement in India means BIG MONEY!!)
Section 10 (1) states – "The Internal Committee or, as the case may be, the Local Committee, may, before initiating inquiry under section 11 and at the request of the aggrieved woman take steps to settle the matter between her and the respondent through conciliation".
The option of Settlement is once again a clear violation of Vishaka guidelines. By legally providing a mechanism to bargain punishment with settlement, the act becomes a tool for “legal extortion”. This will also initiate a rate race among NGO’s to have themselves represented 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. From our vast experience in dealing with 498a and DV cases, A “Settlement” in the Indian legal system points towards only one thing. Payment of Money! The whole idea of settlement is incorporated with the sole intention that government very well knows that most cases will be false and will not stand the rigors of a full fledged investigation.
Recommendation :- Provision of any sort of monetary “settlement” is the biggest attraction for misuse of any law and must be summarily removed. The accused must be either punished or the complaint must be deemed as false and action taken against the complainant.
5. Make the organization accountable for compensation and not the individual
Clause 13(3)(i) states :- “ …to take action for sexual harassment as a misconduct in accordance with the provisions of the service rules applicable to the respondent or where no such service rules have been made, in such manner as may be prescribed;
Section 13(3)(ii), states – “to deduct, notwithstanding anything in the service rules applicable to the respondent, from the salary or wages of the respondent such sum of compensation to be paid to the aggrieved woman or to legal heirs, as it may determine, in accordance with the provisions of section 15:”
The option of the burdening the respondent for paying the compensation coupled with little evidence and scope for “monetary settlement” will make this law a weapon of choice for disgruntled women seeking vengeance on men. In the western countries even where there is Gender Neutral Sexual harassment laws it is the organization that actually compensates the complainant and therefore the investigation on the complaint is done with much more scrutiny since it is organizations income and assets are at risk. However with this requirement removed there will a huge number of false victims under this law who will be forced to pay from their own pocket
Recommendation: - If the allegations are proved, it must be the responsibility of the organization to make the required compensation to the complainant. The organization would then be free to make a decision on the action it wants to take against the respondent based on service rules.
6. Punishment for misuse is not “Mandatory”, but “Discretionary”
Section 14(1) States: - “Provided further that the malicious intent or falsehood on part of the complainant shall be established after an inquiry in accordance with the procedure prescribed, before any action is recommended”
Section 14(1), also states : “…may recommend to the employer or the District Officer, as the case may be, to take action against the woman or the person who has made the complaint”.
We would also like to humbly remind the Hon’ble Committee Members that on 7th August, 2009, when some Feminist NGO’s lobbied for deletion of the Misuse Clause from the draft bill all the Women Member of Parliament unanimously agreed that a Misuse Clause is very much needed to prevent misuse of this loosely worded bill. Unfortunately, after the above consensus was reached, with the Women MPs, the very misuse clause has been drastically changed to, make the bill, ironically, even more prone to misuse.
By making punishment for misuse discretionary (…May Recommend) 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 commonly observed in the use of section 498a and Domestic Violence Act. If the statistics from the Indian Government related to section 498a and Domestic Violence legislation is anything to go by, it is clear that Indian Gender laws are phenomenally misused in India to achieve ulterior motives. However In section 12(1), the Sexual Harassment at Workplace Bill states that if a complaint is found to be false, the committee “may recommend to the employer or the District Officer to take action against the woman or the person who has made the complaint”. Or in other words, the punishment for making a false Sexual Harassment in not mandatory but discretionary and would depend on the recommendation of members of such NGO’s whose sole selection to the committee was dependent on their level of being “committed to the cause of women”.
Recommendation: - A falsely accused person must be allowed to seek justice in a normal court of law. Punishment for misuse must me made mandatory and not discretionary. Clear rules and procedures must be defines for false cases. No settlements must be allowed on this area.
7. This law is a MONEY MAKING BONANZA to complainants, women lawyers and Women’s NGOs at the tax payer’s expense.
Clause 19(h) states that the Employer shall “initiate action, under the Indian Penal Code or any other law for the time being in force, against the perpetrator after the conclusion of the inquiry, or without waiting for the inquiry, where the perpetrator is not an employee in the workplace at which the incident of sexual harassment took place.
At the onset it clearly appears that the law appears to have to do little to eradicate sexual harassment at work and has more to do with providing a steady source of income to women complainants, lawyers and women’s organizations at the expense of the tax payer money. It is laughable that in clause 19(h) highlighted above, this bill states that when the person is not an employee then laws under IPC can be used to initiate action but when the person is an employee then sexual harassment laws can be used. Also how can the employer be authorized to initiate action against a person before establishing guilt? Guilt can only be established after the enquiry is complete.
The reasons why IPC laws have not been considered are as below.
The new law is trying to fulfill the following objectives
1) IPC laws can punish the victim but cannot pay money to the complainant which this law is trying to remove. Money is the essence of this law.
2) IPC laws do not have provision for channeling tax payer money to women’s NGO’s and lawyers.
3) In the present bill there is no punishment for the perpetrator, whereas the victim gets monetary compensation, for alleged Sexual Harassment, with an elaborate totally unnecessary requirement of paid committee members from various women’s NGOs, whose sole qualification would be “committed to the cause of women”, Not only will these committee members be a drain on tax payer money but this will create parallel industry among them to get appointed to committees to protect their revenue stream.
4) IPC laws are evidence driven while this law is totally silent of the requirement of solid evidence to first prove guilt of the perpetrator. Also very special measures like a ban on RTI on enquiry proceedings would ensure that the murky trading of complaint enquiry and sub sequent settlements are done under the secrecy and this would open the bill to rampant misuse.
5) IPC laws are fought by Govt appointed Public prosecutors, however in this case the complainant and the defendant would have to appoint lawyers of their own and that would lead to excellent income generation of lawyers.
The existing laws in the IPC are extremely robust and provide relief based on evidence and not on paid women’s organizations deciding on the future course. This law is essentially a duplication of an existing law created with the premise of opening a channel to tax payer money to NGOs and lawyers.
8. Safeguarding misusers and cases of misuse by gagging the RTI act
Section 16 prohibits the publication or making known, the contents of complaint and enquiry proceedings when the case is false. However there is no restriction on disclosing information on true cases.
The above shows how much thought has gone into protecting misusers by the drafting committee. In a democratic nation, transparency is the key to success of governance. To ensure the same the government of India 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. Alarmed at the burgeoning reality of the misuse of section 498a and DV act this draft for the Sexual Harassment at Workplace Bill has a unique approach to keeping the false cases under wraps. Special provisions have been made in this bill so the RTI Act cannot be used to unearth cases of false allegations and misuse of this legislation. Only cases which are genuine shall be opened to the media and information seekers. This is another very ingenious attempt to strangle the news of misuse itself since now the pubic will be exposed only to news of successful cases and stories of false cases will be legally prevented from leaking. This will also give complete deniability since now the Indian government will be able to say that since there is no news of misuse at all in this law and consequently it is a very successful piece of legislation.
When, either the complainant or the respondent wishes to approach any court of law for justice, they should have a right to the details and proceedings of the enquiry.