This article has been written by Gaurav Prakash, an advocate.
In October 2018, Indian social media and mainstream print media and electronic media were buzzing with cases of sexual harassment in the media and entertainment industry. It started with actress Tanushree Dutta accusing co-actor Nana Patekar of sexually harassing her. Soon from the entertainment industry, it reached the corridors of print and media industry, and even some big politicians were also exposed during this campaign. Me too movement was gender-neutral, though most of the accused were men there were some incidents when fingers were raised on women too. It was the first time when sexual offenders were losing their dignity and were facing public humiliation.
Both men and women were supporting these victims who were coming forward to narrate these horrible stories. It is because of this campaign for the first-time companies took note to comply with the POSH Act (Prevention of Sexual Harassment Act, 2013). Now, this Act made it mandatory for companies with more than 10 employees to set up an Internal Complaint Committee to deal with sexual harassment cases. The government also set up an online management system- Sexual Harassment Electronic Box known as She-box for registration of sexual assaults. Prevention of Sexual Harassment Act, 2013 was enacted after passing of the landmark Vishaka vs State of Rajasthan Case by the apex court of our country. Let us find out how gender-neutral these laws are.
Vishaka vs State of Rajasthan
This case is based on the struggle of Bhanwari Devi. Bhanwari devi was one of the social workers who was involved in spreading awareness about hygiene and was running a campaign against child marriage. In one of the incidents she was helping a young child who was forced by her parents to marry her against her wishes. She tried to intervene and saved the child from this evil, she started a rally and campaign against this. She was successful in saving her child from this evil but could not save herself and some influential men of her village caught hold of her and she was raped by them. She filed a case against them but no one took her seriously. The Rajasthan High court acquitted all the accused in this case. This was the tipping for all the social workers around the country and soon demonstration started around the country. They challenged the decision of Rajasthan High court in the Supreme Court and this led to the enactment of Prevention of Sexual Harassment in Workplace Act, 2013.
In any kind of organization i.e. government, private or public enterprises such kind of conduct creates an apprehension in the minds of the employees that if they don’t perform the work given to them, they will be one the victims of sexual harassment and thereby it creates fear in their minds. On the other hand, it is also the employer who might threaten the employee regarding their transfer, promotion, etc. and it has been seen in the corporates that the employer does ask for some kind of favour to give the job, transfer or promotion or for that matter to increase their salary. All this amounts to Sexual Harassment because it is done against the will of the person and the employees who need the above things do agree to the terms of the employer.
In other words, it can be said that it is discriminatory when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work including recruiting or promotion or when it creates a hostile work environment. Adverse consequences might be visited if the victim does not consent to the conduct in question or raises any objection thereto.
Male sexual harassment in the workplace
Traditionally women in India were expected to stay at home and perform household chores. The men were considered as breadwinners after that gradually women started going out of the four corners of their home and achieving both academic and professional success. Many top companies are managed by the women of our country and it is a proud moment for our country. In our legal fraternity many women are becoming the partners of big law firms, teaching law students in one of the top-notch law colleges of our country and apart from that they are presiding over the Apex court of our country. For the development of any country both economically and socially, people from every region, religion, gender, and race must be given an equal opportunity and platform to pursue their career. But with the change in the social system of our country there should also be a change in the laws of our country. Many times, it is seen that a law which is made for the protection of a particular gender, the same law is manipulated and misused by the very same gender. Now if we take a look at POSH Act, 2013 it is not at all gender-neutral. Let us look at the definition of an employee under this Act.
Section 2(f) defines the term employee as an employee includes every female who is working or attaches directly or indirectly with the workplace for the purpose to earn remuneration for the temporary period or permanent with or without the knowledge of the principal contractor. Sexual harassment can occur in a variety of circumstances. Often, but not always, the harasser is in a position of power or authority over the victim (due to differences in age, or social, political, educational, or employment relationships). There have been incidents when tables were turned and it was the men who were at the receiving end. Following incident is one such incident.
In this incident Krishna (his name changed) had the same problem but his complaint was not taken seriously. He started working at a new workplace. Soon after that a female colleague started passing lewd comments at him. After that those lewd comments were followed by accidental physical touches which made the whole situation very uncomfortable for Krishna. This harassment reached its pinnacle when at an office party the offending lady proceeded to nearly disrobe him. This was the limit; Krishna took that matter in his hand and went straight to the HR with his horrifying tale the very next day.
The confused HR Manager could not believe him. In his entire career, he had come across a case where a man was the victim and a woman was the accused. Krishna was resolute this time to file an official complaint against his female colleague. HR was not interested in filing any complaint against her. Though Krishna taught his predator a sweet lesson by slapping on her wrist, and from that onwards his female colleague kept a distance from him. The harasser and the victim can be anyone and of any gender, such as a client, a co-worker, a teacher or professor, a student, a friend, or a stranger. The victim does not have to be the person directly harassed but can be anyone who finds the behavior offensive and is affected by it. Adverse effects on the target are common.
The main reason for the cold shoulder from HR is that the average Indian mentality is that it is always the men who can be the predators or the women are always on the receiving end. Well this is not the case anymore. Sexual harassment is more about the authority, it is more about oppressing the one who is working for you or under you and upon whom one have a certain authority or power. Sexual harassment is nothing to do with gender. We do not want to identify the problem and without identifying the problem we will never be able to solve the problem.
Power corrupts you irrespective of your gender
One thing that we all will agree is that society changes with time and with society our acts and laws should also change. What was right in the 1970s may not be right today. Our Hon’ble Supreme Court has given some of the most path breaking judgments in recent past, right from the decriminalization of Section 377 IPC, declaring triple talaq as unconstitutional or to the decriminalization of adultery. These all were the needs of modern India. If we look at the incidence of sexual harassment cases it is more about the position of power and less about gender. Our country followed the pattern of patriarchy. Men held the position of respect and power both in the house as well as out of the house. That is why in all cases women were victims and men were the predators. Now things are changing, there are cases when a female junior can be harassed by a female senior, there can be circumstances when a male junior can be harassed by a female boss, a male junior can be harassed by a male boss.
The whole country was shocked when Saif Ali Khan narrated the incident of his initial years in the Hindi movie industry. During the shoot of his first movie he was paid weekly by a female producer and her female producer asked her to kiss her every time she gave him the fees. Eventually, he left that project, and that movie was never made with him but this is a clear case of abuse of power by a person who is in power and no matter how cute or erotic its sounds it is a classic case of sexual harassment at a workplace. Another case of shocking sexual harassment was exposed when a young comedian named Kaneez Surkha narrated her incident of sexual harassment in the hand of female comedian and that too in front of an audience of 100.
It happened when Aditi Mittal, another female comedian kissed her on her lips shamelessly on stage at a comedy show. She was kissed without her consent and choice and that happened in front of a good 100 people, in the company of educated and liberal people. If a male comedian would have done that he would have stamped as a pervert or a certified sexual offender. Miss Surkha narrated the whole incident on Twitter. After this case, Aditi Mittal apologized for her behaviour but she claimed her act of forceful kiss was not sexual but more humorous. It is not always the men who are the predators; sometimes even women cross the limit of dignity.
This is one of the most important factors that should be taken up seriously both by the employer and the government. The employees irrespective of their gender should be made aware of the rights that are available to them relating to Sexual Harassment. There are a few cases when female employees have misused the POSH Act to settle their scores with male colleagues. In the metropolitan cities, the female employees working in good companies and working at a high level are very well aware of their rights but those females who are working at the low level and in small towns hardly know about their rights which they can exercise for any kind of sexual harassment thereby getting relief from the court as well as their dignity lost due to this harassment.
Sexual Harassment at the workplace, it’s not only the duty of the employer to make sure that their employees are provided with the proper working conditions, rules, and regulations, etc. it’s also the duty of the employees to make sure that where ever they are working it is a place which is gender-neutral when it comes to sexual harassment cases. They also must make sure that they inform the management of the head of the organization if any kind of unwelcomed behavior is being noticed by them so that the organization can take the right step at the right time.
The Sexual Harassment at Workplace Bill, 2010 focuses on women’s right to protection against sexual harassment at the workplace. The passing of this Bill will empower the women to action against the wrongdoer more powerfully and strongly, but what about the male employees. Why are they held out of this protection? If we are moving towards a time where men and women both are treated equally then why not protect both men and women with the same rights? If a man can be prosecuted by law then why cannot a woman be prosecuted for the same offence under the same Act? Article 14 of our Constitution talks about the right to equality. After all, the sexual offence can happen to any soul irrespective of age, sex, and even sexual orientation. As an advocate, I believe in equality and I wish and hope and pray sooner or later men will be engulfed in the ‘Sexual Harassment at Workplace Bill’.
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