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She said, she said

delhi Updated: Nov 14, 2010 01:18 IST
Namita Kohli
Namita Kohli
Hindustan Times
Namita Kohli

It's been 13 years in the making and has been revised at least seven times. Lawyers and women's rights activists have lobbied for it for even longer. But now that the Protection of Women against Sexual Harassment at the Workplace Bill 2010 is on the brink of becoming a law, it's fuelling a hot debate even among its most ardent supporters.

Make no mistake — it's widely welcomed as a legislative move. But the sharp criticism is on the approach to it. The split is whether the larger question of gender equality should have been addressed first. It's a "chicken-and-egg" situation, some are arguing.

In the months to come, this debate will get even feistier. As the Bill waits on the queue of legislations to be tabled in Parliament, other policies relating to gender empowerment are being drawn up too.

The rush may seem sudden at the moment, but it's cued in from 2004, when the first UPA government's Common Minimum Programme — the charter of promises by the Congress-led coalition — pledged "legislation to address gender discrimination". The Equal Opportunity Commission that's being set up by the central government will look at women as one of the "deprived groups". Hectic discussions are on over other central and state-level gender policies too.

Mary E John, director at the Centre for Women's Development Studies, gives us an idea of what's to come: "Certain states are already talking about job reservations for women. Also, what we are lacking at this point is a strong anti-discrimination law — not just for women. We also need to talk wages and work conditions, especially in the informal sector."

Split wide open
The Sexual Harassment at the Workplace Bill itself has come under scrutiny for several reasons. The first contention is over the definition of harassment. Several activists argue that the phrase used in the Bill — "unwelcome sexual conduct" — is too vague. Ratna Kapur, director at the Centre for Feminist Legal Research, says it may even restrict "healthy sexual relationships".

Others point out that domestic help — a large segment of workers in urbanising India — has been left out of the Bill's ambit, as they were from the Domestic Violence Act 2005, too.

Opposition is fiercer over the Bill's provision that can penalise a woman if her complaints are found "false". Lawyer Vrinda Grover says, "This single provision will nullify all the good that this Bill can do. If this provision stays, who will come forward to register a complaint? Sexual harassment is a nuanced offence and there's power dynamics at work."

There are other worries as well. Oishik Sircar, assistant professor at the Jindal Law School in Sonepat, says, "What happens if the accused is the head of the company? Is he still the one who sets up the inquiry committee to deal with the case?"

Change and its charges
The most effective change needs to be societal, in mindsets. Mumbai-based lawyer Flavia Agnes, whose organisation Majlis helped with the Bill's drafting, says, "This act may not change much on the ground… the change will be gradual. Only when women gain confidence, they will venture to lodge a complaint against their boss or a supervisor."

Laws tackling discrimination in general and sexual harassment in particular have proved controversial more often than not. For, as Sircar points out, laws for women are often a "double-edged sword, promising both emancipation and subjugation".

And they fuel debate between two distinct groups of feminists. On one side are the so-called "power feminists", who see women as sexual beings who have a right to protection from violence and, at the same time, have the right to talk about pleasure. On the other side are "victim feminists", who look at women as victims, in need of protection. So it's expected that even those who favour the law would be bitterly divided.

There are other worrying divides too.
Indira Jaising, additional solicitor-general and project director at Lawyers' Collective Women's Rights Initiative, foresees a problem with the law's implementation in the public sector. There the complainant would not only be against an inquiry committee but also a disciplinary committee, which will decide if the accused needs to be sacked or not.

Madhu Kishwar, senior fellow at the Centre for the Study of Developing Societies and editor of the magazine Manushi, says such "draconian laws" need institutions that can deliver. "We need to fix the legal system first. When a man is in a powerful position he can buy off witnesses and the legal battle is always long-drawn. Look at family courts, where the state has failed to deliver. There's no substitute for a woman taking charge of her own life. "

What to expect
Several countries, including developing ones such as South Africa, have laws to address sexual discrimination. Here, we are debating the details of an anti-discrimination law for recognised 'deprived groups'.

A senior lawyer who didn't wish to be named says, "We are lobbying hard for such a law. The problem with the Equal Opportunity Commission is that women will be just one of several such groups. A better way of dealing with it is calling it sex discrimination and focusing on gender."

It's far from certain what courses the debates will decide for women's issues in the country. What's sure is that, before those decisions, there will be even more difficult questions to address.

Inputs by Phorum Pandya.

How some other countries tackle discrimination

European Union

European Union (EU) norms on gender equality are perhaps the best in the world as they adopt a holistic approach. All EU member states are obliged to promote gender equality. Since the 1990s, the policy of gender mainstreaming is being enforced so as to include gender equality in all activities in the "mainstream".

EU mandates member states to enforce equal pay for women and men for the same work and work of equal value; equal treatment in vocational training, promotion, working conditions and social security.

It protects workers in cases of pregnancy and maternity; paternity in member states recognising such rights; specific rights for parental leave for fathers and mothers.

Protection is also ensured against direct and indirect discrimination based on sex, including marital or family status, as well as protection against harassment based on sex and sexual harassment. Victims of discrimination can go to court and are protected by measures against retaliation.
— Satya Prakash

Pakistan

Unlike India's, Pakistan's Protection Against Harassment of Women at Workplace Act 2010 appears to be broader in scope.

The definition makes it clear that the Pakistani law is not limited to sexual harassments alone and it covers certain other types of harassments as well.

Applicable to regular and contractual employees in government and private sector alike, the Pakistani law mandates every organisation to set up an inquiry committee (that must include a woman) with the power to recommend minor or major penalties — the maximum being dismissal and fine to compensate the victim.

There is a provision for ombudsmen at the federal and provincial levels. An employee aggrieved by the decision of the ombudsman can appeal to the President or governor.

The law puts the responsibility to implement the legislation on the employer. It also lays down a code of conduct for all companies to adopt.
— Satya Prakash

United States

The US was ranked 31st in the 2009 Global Gender Gap Report published by the World Economic Forum. This places the country far below most European countries. It has never ratified the Convention on the Elimination of All Forms of Discrimination against Women adopted in 1979 by the UN General Assembly. The pay gap between men and women — at 21.6 per cent — is considerable for the world’s largest economy.

Also, it needs to be noted that such laws are treated as a state — rather than a federal subject — in the US. So it's not possible to read or compare it as one.

That said, there have been some welcome changes in recent times. In 1998, the US Supreme Court made employers more liable for sexual harassment of their employees. Moreover, the Society for Human Resource Management reports that 62 per cent of American companies now offer sexual harassment prevention training programmes, and 97 per cent have a written sexual harassment policy.
— Harish V Nair

Dissenting voices