EXPLORING THE HAVE-NOTS OF A SAFE AND PROTECTED WORK ENVIRONMENT IN INDIA

Adwitia Maity | October 24, 2024 | Published Online

The moment one discusses sexual harassment in workplaces, the human mind, due to its prejudices, tends to paint an image where a stereotypical male superior indulges in sexually explicit conduct with a female, relatively less powerful subordinate within the office space. Our imagination hardly ever wanders off beyond conventional or stereotypical images of sexual aggression in workplaces. Do we ever imagine an LGBTQ+ individual being subjected to sexual violence at their workplaces as the first vivid image of sexual harassment in workplaces? Do we imagine a male individual being harassed in their workplace? What about workplaces that are not limited to an office space? What about the workplace safety of unorganised labourers, gig workers and freelancers?While there is no denying that a significant share of instances of workplace sexual harassment fit out the subconscious perception of the same since the aim of the Prevention of Sexual Harassment Act¹(“POSH Act”) is to provide safety to women workers, the fact that it’s somewhat myopic in its definition of which women would fit their definition of working women becomes questionable in the light of incidents such as the violent rape and murder of a female trainee doctor in Kolkata, India.

DECODING THE LIMITATIONS OF EXISTING LEGISLATIONS

Two primary legislations dealing with sexual harassment in the workplace in India are the POSH Act and the BNS 2024.

POSH ACT

The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013, also referred to as the Prevention of Sexual Harassment Act (“POSH Act”), serves as the principal legislation addressing workplace sexual harassment of women. The POSH Act owes its genesis to the widely acclaimed case of Vishakha v. State of Rajasthan², where the Supreme Court of India mandated that all organizations set up an internal complaints committee, which would specifically address the grievances of sexual harassment in the workplace. The POSH Act, in defining terms like ‘aggrieved woman’³ and laying down that no woman shall be subjected to sexual harassment in the workplace⁴, limits its scope of functioning to women employed within formal sectors, thus snubbing several other possibilities of intersection of aggrieved individuals who might be sexually harassed in the course of their employment, but without any legal recourse to resort to.

Bhartiya Nyaya Sanhita (BNS)

While the POSH Act remains unaffected by the overhauling of criminal legislation in the country recently, especially for offences that have not got anything to do with women working in formal sectors, resorting to the BNS⁵ is imperative while addressing the same. Similar to its predecessor (Indian Penal Code/IPC)⁶, the BNS too discusses various forms of sexual assaults, such as rape directed exclusively at women, eve-teasing, and outraging of modesty. While this is a good thing in and of itself considering how a significant share of sexual harassment happens against female victims, it is disheartening that the BNS has completely done away with Section 377⁷, the sole provision in IPC that used to deal with sexual assault on men primarily. There happens to be a popular misconception regarding the striking down of s. 377, where the public seems to have been convinced that the whole of the section has been struck down; in reality, the part that had been struck down after the Naaz Foundation and Navtej Johar judgments was regarding the criminalization of consensual sexual interaction between two adult individuals of a similar sex. The part where non-consensual same-sex intercourse was deemed criminal still existed and protected the members of the community until BNS happened. While it was still inadequate in addressing forms of non-penetrative sexual assault on non-females, a gay man who survived rape might, at the very least, could make a complaint under Section 377 of the IPC since Section 375⁸ of the law only accept rape perpetrated by a man on a woman.

‘NON-CONVENTIONAL’ STAKEHOLDERS OF A SAFE WORKPLACE

The informal, marginalised working women

If we closely look at the origin of the POSH Act following the Vishaka Guidelines⁹, the case in which all of this happened was an instance of sexual assault against a Dalit woman in a state where caste and gender-based violence have long been prevalent. Bhanwari Devi, a sathin (volunteer worker) for the government of Rajasthan, had advocated and worked to end child marriage, dowries, and the killing of female infants. The upper caste Gurjars chose to boycott her and her family out of anger over this. Five upper-caste men gang-raped her in September 1992 after attacking her husband and threatening her children.

It resulted in the feminist organization Vishaka filing a public interest lawsuit with the Supreme Court, requesting that workplace sexual harassment of women be prohibited. According to the petitioner, occurrences such as the rape of Bhawanri violate Articles 14, 19, and 21 of the Indian Constitution¹⁰. The court acknowledged this point of contention and concluded that providing a “safe” working environment is necessary for respect, equality, and the freedom to practise one’s trade.

The court subsequently mandated that companies provide a safe working environment and gave comprehensive recommendations on how to prevent sexual harassment of women at work. These recommendations ultimately served as the foundation for the 2013 POSH Act. 

Through this judgment and the subsequent guidelines, the court might’ve recognized that sexual harassment of women in the workplace was deemed to be resisted. Still, the nature and language of the legislation limited it to upper-caste middle-class women working in formal sectors. This led to complete disregard of the fact that marginalization in the form of caste and other factors may serve as a catalyst for sexual violence against women. The strange and dual brutality against working-class Dalit women is absorbed into the generalisation of “women in general.”

In India, the informal sector employs the majority of workers. Surveys conducted as recently as in 2020–2021 show that women make up more than half (56.7%) of the non-agricultural informal sector¹¹. The majority of them are the only providers of income for their families, hailing from underprivileged origins and marginalised areas. Since they frequently lack literacy and knowledge of the law, it is challenging for them to speak out against harassment. They are further discouraged from reporting such assaults by their fear of losing their livelihood and the shame attached to the problem.

The gender non-conformists

Because of its cis-normative presumptions, there is a gap in the current sexual harassment legislative framework regarding the inclusion of queer identities. Instead of considering intersectionality, the legislation adopts a detrimental “single-axis” methodology. Empirical studies, however, demonstrate that sexual harassment impacts the LGBTQ+ community and transcends the gender binary. Even if the courts have given some encouraging replies, interpreting sexual harassment cases purely based on stereotypes may leave gaps and present issues.

For example, in recent times, the Supreme Court of India denied a petition on November 7, 2023, that attempted to change the Gender Sensitisation and Sexual Harassment of Women at the Supreme Court of India (Prevention, Prohibition and Redressal) Regulations 2013 (the 2013 Regulations) to include LGBTQIA+ people¹². The Court declined to substitute “aggrieved person” for the term “aggrieved woman,” stating that doing so would undermine the entire intent and goal of the 2013 Regulations, depriving them of their force. It further noted that the 2013 Regulations were droughted by Article 15(3) of the Indian Constitution, which grants the State the authority to create particular provisions for women and to grant them the fundamental right to equality and equal protection under the law.On the surface, the term “aggrieved woman” suggests that it encompasses all people who identify as women, not only cisgender women. But the ruling not only wholly ignores the inclusiveness that is ingrained in the 2013 Regulations’ language, but it also prevents transgender people who identify as women from filing a lawsuit against sexual harassment under the same laws that are meant to defend women.

LGBTQIA+ people may become reluctant to disclose incidents of sexual harassment at work as a result of the judgment. Even with the gender-neutral and inclusive PoSH policies, one major drawback is the absence of legal support. Therefore, the current laws about sexual harassment must be changed to protect those who neither fit into the traditional conceptions of victims and responses nor into the gender binary.

The males

While the impact of men faced with sexual harassment in their workplaces negatively affecting their participation in the workforce is a relatively less frequent phenomenon, their facing sexual harassment is not as rare as it may seem. More so, because much of what would account for sexual harassment of women in workplaces is not even considered as acts of sexual violence for men, legally. This, in turn, also leads to underreporting of sexual harassment suffered by male employees, even within the formal workspace, let alone that of the informal sector.

Male Sexual Harassment in the Workplace, a comprehensive poll carried out by Times Jobs in 2019,¹³ provided insight into the high number of male victims of this type of harassment. The nationwide study of 1,100 male employees produced some exciting results. Interestingly, it was discovered that 60% of those responsible for male harassment at work were female. Moreover, it was shown that twenty percent of these offenders held senior managerial positions, and fifty-three percent of these offenders held middle management positions. The survey’s key finding was that thirty percent of males fear their friends will make fun of them if they discuss workplace harassment. A quarter of men feared disclosing these instances would hinder their ability to progress in their careers. 

The Indian National Bar Association led the country’s largest poll on workplace sexual harassment^.14 Between April and October of 2016, 6047 male and female volunteers and 45 male and female victims participated in the survey. Men made up about 22% of the victims that were recorded. In a 2007 survey, the Indian government discovered that 42.7% of children and 57.3% of boys reported experiencing severe sexual abuse, such as rape or sodomy. In a recent study, the Centre for Civil Society, located in Delhi, found that about 18% of adult male Indian respondents said they had been pushed or blackmailed into getting married. Of them, 16% identified a female offender, and 2% identified a male offender.¹⁵

SUGGESTIONS FOR PROSPECTIVE AMENDMENTS

Gender as a construct is no longer about black and white. There have been several changes to the concepts, which are evolving daily as we progress. Thus, in suggesting prospective amendments, one could only make approximate suggestions and not absolute ones. An excellent place to start would be the “UGC Sexual Harassment Regulations,” implemented by the University Grants Commission in May 2016,¹⁶ which mandates that higher education institutions take vigorous measures to combat all forms of gender-based violence. Regulation 3(1)(d) of the Regulation states: “Higher educational institutions must take strong action against all forms of gender-based violence targeting employees and students of all genders, acknowledging the vulnerability of primarily women employees and students, as well as some male students and students of the third gender, to various types of sexual harassment, humiliation, and exploitation”. The POSH Act could draw inspiration from how all genders have been addressed here to redefine victims for legislation.

Furthermore, women in all fields of employment are not adequately covered by the POSH Act due to its narrow scope. Legislation demonstrates horizontal inequality. Ninety-five percent of Indian women work in the informal sector, making gender the primary predictor of labour force participation. In the unorganised sector, women work in various jobs, including construction workers, domestic helpers, street vendors, and agricultural labourers. Considering the sizeable percentage of female employees in the unorganized sector, a more thorough examination of the issue of effective workplace sexual harassment law enforcement is necessary.¹⁷

A law that addresses workplace sexual harassment for “every female member of the national workforce” is imperative, according to the 2013 Justice J.S. Verma Committee Report. The need of including the unorganised sector and making sure it was not exempt from regulation was emphasised in the study. This horizontal imbalance reinforces the need to modify the POSH Act.

About Author

Ms Adwitia Maity is currently a teaching faculty at the O P Jindal Global Law School. She has secured an LLM Degree in Criminal Law and Criminal Justice from the Edinburgh Law School, The University of Edinburgh, UK. She also served her term as the Editor-in-Chief of the “Contemporary Challenges: The Global Crime, Justice and Security Journal”, Volume 3. In an ideal society, she aspires to become a Minerva Mcgonagall or a cat, or both. 

End Notes

1. Government of India. “THE SEXUAL HARASSMENT OF WOMEN AT WORKPLACE (PREVENTION, PROHIBITION AND REDRESSAL) ACT, 2013.” THE SEXUAL HARASSMENT OF WOMEN AT WORKPLACE (PREVENTION, PROHIBITION AND REDRESSAL) ACT, 2013, 2013, lddashboard.legislative.gov.in/sites/default/files/A2013-14.pdf.
2. Vishaka & Ors. vs. State of Rajasthan MANU/SC/0786/1997
3. Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 § 2(a)[3]
   
4. Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 § 3[4].
   
5. Parliament. “THE BHARATIYA NYAYA SANHITA, 2023.” THE BHARATIYA NYAYA SANHITA, 2023, www.mha.gov.in/sites/default/files/250883_english_01042024.pdf.
   
6. Government of India. THE INDIAN PENAL CODE, 1860. 1860.
7. Indian Penal Code, 1860 § 377
8. Indian Penal Code, 1860 § 375
9. Vishaka & Ors. vs. State of Rajasthan MANU/SC/0786/1997
   
10. Indian Constitution. Article. 14, 19, 21
11.  G, None Preeti Agrawat Deshani Swati Haridas, Raghavendra. “SEXUAL HARASSMENT AT WORKPLACE: A STUDY ON THE POLICIES AND PREVENTIVE MEASURES.” Russian Law Journal, vol. 11, no. 2s, Mar. 2023, https://doi.org/10.52783/rlj.v11i2s.586.
12. “Supreme Court Refuses Plea To Make Sexual Harassment policy Gender Neutral.” Lexology, 22 Nov. 2023, www.lexology.com/library/detail.aspx?g=041c276f-001d-4662-8a7b-0e5f3214b329.
    
13. G, None Preeti Agrawat Deshani Swati Haridas, Raghavendra. “SEXUAL HARASSMENT AT WORKPLACE: A STUDY ON THE POLICIES AND PREVENTIVE MEASURES.” Russian Law Journal, vol. 11, no. 2s, Mar. 2023, https://doi.org/10.52783/rlj.v11i2s.586.
    
14. Bajoria, Jayshree. “‘No #MeToo for Women Like Us.’” Human Rights Watch, 28 Mar. 2023, www.hrw.org/report/2020/10/14/no-metoo-women-us/poor-enforcement-indias-sexual-harassment-law.
    
15. Editor_4. “Should Sexual Offences be Gender Neutral | SCC Times.” SCC Times, 27 May 2021, www.scconline.com/blog/post/2021/05/27/should-sexual-offences-be-gender-neutral.
    
16. UGC 2024 Advisory of Sexual Harassment
    
17. MacKinnon CA and Emerson TI, Sexual Harassment of Working Women: A Case of Sex Discrimination (Yale University Press 1979).

This article is part of Indian Researcher’s October 2024 Issue ‘Gendered Experience: Workplace, Safety, and Women in contemporary India.’