Yet Another Paper Tiger?

Newsletter Jan - Apr 2002

2001 having been declared the Women’s Empowerment Year, official bodies were eager to be seen doing something for women. Passing new laws for women was one such attempt. The Bill on Sexual Harassment at the Workplace drafted by the National Commission for Women came up for intense criticism among women’s groups all over the country. Many groups felt that the experience of the Vishakha Guidelines and the functioning of committees needs to be reviewed before legislating on the issue. Moreover, whether it should be a civil or criminal legislation was another fundamental question raised.

The arbitrary process of holding discussions with select groups, exclusion of many organisations which have been actively working on the issue of sexual harassment at the workplace, and the uncanny haste to pass a badly drafted piece of legislation led many women’s groups to strongly protest the passing of the Bill in its current form.

Reproduced below is the letter to the Chairperson of the NCW summarising the concerns of women’s groups sent in November 2001.

Dear Ms Parthasarthi,

This is with reference to the proposed bill on Sexual Harassment at the Workplace circulated by you. We sum up for you several reservations expressed by women’s groups.

As you are aware many women’s groups have expressed grave reservations over the passing of such a bill in the absence of extensive consultations. We would like to point out that these reservations come in the wake of our experiences over the last few years while attempting to operationalise the Supreme Court guidelines on Sexual Harassment at the workplace. These insights have to be taken into account before a law is formulated. Failing that, we believe a law dealing with sexual harassment can have serious and negative implications for working conditions for women all over the country. Therefore, more widespread consultations need to be held with women’s groups in various parts of the country rather than rushing through with a bill about which we have a strong critique.

While legislating to deal with sexual harassment of women at work places, we feel that it would be relevant to consider which article of the Constitution it is that is being operationalised. The NCW bill does not state any objective for the bill. You may have noticed that the Supreme Court judgement has a long part which serves this purpose. The SC bases itself not only on Articles 14 and 21 (equality and right to life), but also Article 19(1)g, emphasising the meaning of equal rights for women in work, the fundamental right of women also to ‘practice any profession or to carry on any occupation, trade or business’. Sexual harassment at the work place is seen (in the SC judgement) as a violation of that fundamental right. The SC also very clearly refers to the constitutional guarantee of gender equality and applies it to the work place in the judgement. We fear that the ‘legislative vacuum’ mentioned by the SC will not be adequately filled if legislation is undertaken hastily without paying attention to the fundamental rights of women workers and the fundamental right of all women to work without being sexually or otherwise harassed. Summarised below are some of our concerns.

» The bill must be preceded by preambular objectives which states the position on sexual harassment at the workplace and the purpose this special law seeks to serve, in order to guide interpretations and application of the law and provides crucial space to endorse CEDAW obligations/ women’s human rights and the government’s commitment to fulfilling it through such a bill.

» The preventive aspect is not highlighted in the Bill, as it was in the Vishakha judgement. This is the most important aspect of the issue, since all workplaces must take responsibility for generating awareness about sexual harassment and making the workplace safe for women.

» The definition of sexual harassment in the present draft is problematic and is unacceptable. For example, the term ‘avoidable’ in the definition should be replaced with ‘unwanted’.

» Definition of workplace needs to be thoroughly thought through in order to include all categories of working women.

» As it stands the provisions of the draft bill address the organised sector. However, the majority of women in the workforce belongs to the informal or unorganised sector. Unless a framework for addressing sexual harassment in the informal sector is incorporated the bill will fail to address the realities of a large bulk of women.

» In addition to the substantive aspects, certain procedural matters also have to be taken into consideration, specifically keeping in view the practical experiences of women’s groups; for instance the absence of eyewitnesses or delay in filing the complaint should not be the ground for disbelieving the complaint.

» A checklist of minimum non-negotiable of a legislation on sexual harassment of women at the workplace has to be drawn out. Workplace and sexual harassment have to be defined very carefully.

» There is a lot of confusion between the civil and criminal procedure in the bill in its present form. The full scope of civil law on the issue has to be explored further. The nature and impact of the criminal penalties need further discussion for clarity on which of the two options meet our objectives best. The bill needs to explore civil law to mandate the participation of employers, organisations, trade unions in not only combating sexual harassment at the workplace but also to participate in generating awareness on the issue and building a culture of non-tolerance of sexual harassment.

» The complaints committees and their functioning need to be clarified in order to be effective. For instance, there should be a definite time frame for the complaints committees to give their reports. Also procedures of the complaints committee should be clearly spelt out. The powers, authorities, appointments and the process of appeal & areas of jurisdiction of the special officers and district level officers needs to be clearly stated.

» There has to be a mechanism of appeal.

» In the current bill the primary onus is upon the employer to take corrective measures, but what happens when the employer himself is the accused?

» The bill needs to provide a statutory framework for claiming material and non-material damages for cases of sexual harassment. Some provision must be made to protect the women’s income because job security is one big reason why many women prefer to keep silent. Instead, the focus of this bill is on taking action against the perpetrator and the workplace only, which is very limited.

In short, much more needs to be done before a bill is passed. The issues raised above need serious consideration, as we fear that a law that does not carefully look into all the aspects of sexual harassment at the workplace can also backfire.

As groups who have worked on this issue for the past few years and who have been involved at various levels of implementation of the Supreme Court guidelines, we strongly feel the need for wider and in-depth discussions on this issue before any bill is formulated.

Thanking you and awaiting an early response.

Alternative Law Forum, Bangalore; Bailancho Saad, Goa; CORE, Manipur; Forum Against Oppression of Women, Mumbai; Forum Against Sexual Harassment, Delhi University; Gujarat Forum for Women Studies and Action Groups, Gujarat; Human Rights Law Network, Delhi; Hengasara Hakkina Sangha (Women’s Rights Collective), Bangalore; Jagori, Delhi; Kerala Streevedi, Kerala; Lawyers Collective (Women’s Rights Initiative), Delhi; Maitree, Calcutta; Nirantar, Delhi; Partners in Law and Development, Delhi; Saheli Women’s Resource Centre, Delhi; Sama, Delhi; Sakhi Women’s Resource Centre, Kerala; Sahiyar (Stree Sanghatana), Baroda; Sanhita, Calcutta; Swayam, Calcutta; Women’s Centre, Mumbai.