Towards a gender-neutral law of sexual harassment

Towards a gender-neutral law of sexual harassment

Sexual harassment includes a range of actions from verbal transgressions to sexual abuse or assault. The use of explicit or implicit sexual overtones, including the unwelcome or inappropriate promise of rewards in exchange for sexual favours, is also sexual harassment. Such harassment can occur in many different social settings – workplace, home, school, place of worship. Harassers or victims may be of any gender.
Sexual violence can happen to anyone, no matter what their age is. We usually think of harassment or rape cases as related to females only, which is the reason that legislations are made only for female victims. The modern legal understanding of sexual harassment was first developed in the 1970s, although related concepts have existed in many cultures. Legal activist Catharine MacKinnon is sometimes credited with formulating the laws related to sexual harassment in the United States. Her 1979 book was titled ‘Sexual Harassment of Working Women’ but she did not coin the term. An early use of the term was in a 1973 report on discrimination called “Saturn’s Rings” by Mary Rowe, PhD. At the time, Rowe was the Chancellor for Women and Work at the Massachusetts Institute of Technology (MIT). Due to her efforts at MIT, the university was one of the first large organisations in the US to develop specific policies and procedures aimed at stopping sexual harassment.
At Cornell University, instructor Lin Farley discovered that women in a discussion group repeatedly spoke of being fired or quitting a job because they were harassed and intimidated by men. She coined the term “sexual harassment” to describe the problem, and described it at length in 1975 testimony before the New York City Human Rights Commission. Finally, sexual harassment first became codified in US law as the result of a series of sexual harassment cases in the 1970s and 1980s.
Sexual harassment under Indian laws
According to (Section 354A IPC), Sexual harassment is the:
• Unwelcome touching or other physical contact
• Asking or demanding sex or any other sexual activity
• Making remarks which are of a sexual nature
• Showing pornographic material which may include videos, magazines, books etc.
There is a separate law on sexual harassment at workplaces – the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act and Rules 2013. There are provisions in the main criminal law (the Indian Penal Code or IPC) which are different from the special law on sexual harassment:
• The IPC is not limited to sexual harassment at the workplace but punishes such harassment done anywhere.
• The IPC makes it possible to file a criminal complaint if you have been sexually harassed, while the special law gives you the option of seeking civil remedies and damages from your office administration.
The punishment for the first three kinds of sexual harassment is three years in jail while that for the fourth type (making sexually coloured remarks) is one year.
Elucidating sexual harassment in theory is complex owing to the fact that there are differences in opinions, ideas, knowledge, and social attitudes. An individual’s interpretation of sexual harassment is framed by various kinds of societal factors, like religion, education and past experiences with sexual harassment. It is also very awkward to investigate the malleability of how an individual commits sexual harassment. Specific genres of sexual harassment, such as sexual harassment at workplace, rape at workplace, personal questions of sexual nature, vulgarities and other offensive language, any unwelcome sexual advance, etc, can be elements in a public definition of sexual harassment. The prime thing to be noted is that in sexual harassment, victim and perpetrator can be of any gender and the place of harassment can be anywhere. Also, with the advent of the internet, sexual harassment online has become pervasive.
According to the PEW statistics 2014, 25% of women and 13% of men between the ages of 18 and 24 have experienced sexual harassment online. One cannot ignore the sexual harassment of men. In India, under Article 14 of the Indian Constitution, there is a “right to equality”. If legislation does not take into account issues related to men and only stresses upon issues related to women, then this right is in violation. There must be ‘equal access to justice’ for both men and women.
Here is a testimony: “I was jailed under Sec 498A, 323 and 504 of I.P.C. as my wife, Vineeta, had recorded a false case for demanding Rs 14 lakhs as dowry after 2 years of marriage against me and my family. My father had never demanded such amount. I never even thought about demanding such a huge amount. I, too, have sisters. Due to this case, my whole family was destroyed. We are suffering from financial scarcity. Our house has also been sold. Now I don’t want to remain alive and want to commit suicide. My in-laws will be liable for my death.” This was the letter written by Pushkar Singh, resident of Jankipuram Sector C, Lucknow, just before committing suicide. After writing this letter Pushkar committed suicide on 6 Feb, 2007, by hanging. This incident shows how a man was deprived of his fundamental right of life and liberty, as provided to all human beings, by the Constitution of India.
On the right to life, the Supreme Court said in the Maneka Gandhi v. Union of India case, that, “Right to life is not limited to just physical existence; rather, it is right to life with full dignity.”
In Ram Saran Varshney and others v. State of Uttar Pradesh, an F.I.R. was lodged by a woman against her husband, his parents, and his three sisters under Sections 3 and 4 of the Dowry Prohibition Act, 1961, and Sections 498A and 506 of I.P.C. The Supreme Court bench, comprising Justice Jagdish Singh Khehar and Justice NV Ramana, on Feb 2, 2016, after hearing all the facts, evidence and arguments, stated that, “Since all the three sisters of the husband of the respondent lady are married, and living independently in different places, they had no concern with the relationship of the respondent lady and her husband and in-laws. Furthermore, our attention was also invited to the fact that no clear allegations have been levelled by the respondent lady against any of the three sisters of the husband. Even during the course of hearing, the respondent lady did not contest the aforesaid factual position. Her only submission, during the course of hearing, was that her three sisters-in-law had visited her matrimonial house on the occasion of ‘Grah Parvesh’ and the ‘Naming Ceremony’ of her daughter. We are of the view that the visit of the three sisters-in-law on the above two occasions were for celebration, and cannot be treated as occasions where they harassed her. In any case, in the absence of any material on the record of this case relating to harassment on the above two occasions, we are satisfied that the proceeding initiated against the three sisters was not justified. The same deserves to be quashed.”
In State of Karnataka v. Dattaraj & others, the bench, comprising Justice Jagdish Singh Khehar and Justice SA Bobde, stated that, “The alleged dowry demand of a sewing machine is inconsequential with respect to the provisions under which the accused husband and his parents were charged, when one of the prosecution witnesses stated in her cross examination that the petitioner lady knew tailoring and the sewing machine was given to her for tailoring clothes. This was really a gift to the petitioner lady, and therefore, cannot be considered as part of the demand made by the accused husband for himself or for his family members. There was no further attribution against the respondent husband and his parents. It is therefore not possible for us to accept that the prosecution was successful in establishing either harassment or violence towards the petitioner lady. It is difficult for us to conclude the culpability of respondent husband and his parents.”
Similar are many cases of rape or its attempt lodged against men where either long legal proceedings or long jail term or suicide are often the fate of innocent men. The liberal view of the law towards the woman makes her morale strong. Now, whenever she has a dispute with any man, she threatens to implicate the man in a case of rape or attempt to rape or dowry or harassment, and the law does not stand against her, rather gives her more liberty in one or another way. Is this the law that an innocent person is to be punished only because the person is a man?
In my opinion when we read S.375 of the IPC which starts as, “A man is said to commit a rape”, that’s where the fault begins. It should have been a ‘person’ instead of a ‘man’. The legislature needs to reconsider this section so that it becomes gender-neutral.
Men should be given access to justice in the ‘Sexual Harassment at Workplace’ laws. Also, some specific sections should be inserted in the Indian Penal Code to protect harassment of males. There is only one section related to sodomy in the Indian Penal Code. Also, the need of the hour is to change the mindset of people who believe that a man is not made to cry and only a woman cries. Men, too, have dignity, emotions, self-confidence and respect to protect. Sexual harassment attacks the soul and it is immaterial whether the soul is of a male or of a female.

—The writer is a student of Law at Central University of Kashmir. rahilaminmir@gmail.com

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