The Sexual Harassment Workplace Bill (SHWB)

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FASCIST GENDER LAW MAKING IN INDIA
Posted by R on 21 June, 20102 CommentsThis item was filled under INDIA
FASCIST GENDER LAW MAKING IN INDIA

The Sexual Harassment Workplace Bill (SHWB) is a textbook example of
how public opinion was trampled by some people with vested interest

The SHWB is recent bill where overwhelming public opinion was ignored
by the WCD Ministry.

The Sexual Harassment Bill was the outcome of an Apex court Judgment
in 1997 which was in response to a Writ Petition WP No 666-70 of 1992.
It is pertinent to note that laws and opinions of courts change very
quickly with time and it is almost 20 years since the WP was
originally filed. The condition, motivation and numbers of women in
the workforce have swelled massively since 1992 and women now get an
equal opportunity in almost all areas of employment either through
merit or reservation.

What is Public Opinion about Sexual Harassment in 2007

The Sexual harassment act if drafted in the year 1992 might have
received major support from the Indian Public to make it a women’s
only law and not offer any protection to LGBT i.e. Lesbians/Gays/
Bisexual/Transgender and men from sexual harassment. However public
opinion changes with time and our society has undergone massive
changes since 1992 when the WP was filed. Public opinion in 2007
states the Sexual Harassment at Workplace Law must be Gender Neutral.
RTI’s provided a clear insight into the government’s law making
process and it has been discovered through RTI’s that during the
drafting of the Sexual Harassment at workplace Bill there were
innumerable representations from the public seeking to make the bill
Gender Neutral. Also there was not a single comment / recommendation
received from the public asking for the bill not be made gender
neutral. This clearly shows that as of 2007 and the subsequent years
the Indian public opinion has shifted and now the Indian citizens want
this law to be a gender neutral law. Even Law Commission in its 172nd
Report wanted Laws to be made Gender Neutral.

Why has Homosexual and LGBT harassment been completely ignored ?

Homosexual sexual harassment has been documented worldwide and occurs
on a large scale in all societies but is never talked about too much.
India too has a large number of homosexual couples who lived in the
shadows earlier, but now with the Honorable Delhi HC decriminalizing
homosexuality there will be a huge increase in male-male and female-
female relations in offices too. Sexual harassment at workplace can
also happen between two individuals of the same sexual orientation and
this bill does not address this in any way. This bill does not have
any provisions to protect homosexual men or women from harassment from
their same sex partners.

How the WCD Ministry trampled upon overwhelming public Opinion in the
SHWB

The below links points us to a PDF that shows the relevant areas of
the RTI response received from the WCD, highlighting the file notings
during the drafting process of the SHWB. The first column titled “Gist
of comment/suggestion” lists the representations received from the
Indian public. The second column titled “Number of comments” shows the
number of such representations received and the third and final column
titled “Response” lists the reply that the WCD ministry has for
accepting or rejecting these representations.

From the first and second column it is clear that the WCD ministry had
received numerous representations from concerned Indian citizens to
make the SHWB law gender neutral but did not heed to any one of them.
The ministry instead chose to trample all the representations by the
below outrageously sexist, and statements degrading men’s modesty.

Below are the outrageous reasons for the WCD Ministry for not making
the bill Gender Neutral
“The overwhelming nature of sexual harassment is sexual harassment of
women on account of their female sex. Harassment of men cannot be put
on the same footing character wise or incidence wise. Protection of
men is also not the mandate of Ministry of WCD”.

The analysis of the statements of the WCD exposes the extremely poor
and downright dubious quality of law drafting in India. Let us look at
the grossly uneducated statements of the WCD one by one.

1)“The overwhelming nature of sexual harassment is sexual harassment
of women on account of their female sex”
This is an unscientific “assumption” that the WCD makes. Laws are not
based on assumptions but on hard facts. The WCD Ministry or the
Supreme Court does not have any data to back this argument. Credible
research all over the world concludes that men too are increasingly
falling victims to sexual assault crimes every year. India does not
have a procedure of even tracking sexual harassment crimes committed
against men. However in the western world which has tracking systems,
sexual harassment complaints from men who have harassed by women and
other men are rising every year.

US , UK and the European Union have Gender Neutral Sexual harassment
laws

The US Equal Employment Opportunity Commission’s (EEOC) data in the
below link shows that the percentage of complaints from Men increased
from 11.6% in FY 1997 to 16% in FY 2009 showing that men are
increasingly being victimized. The total number of sexual harassment
cases in 2009 has now increased to 12,700 per year. The percentage of
men sexually harassed and their numbers (12700) is simply far too high
to be ignored.

http://www.eeoc.gov/eeoc/statistics/enforcement/sexual_harassment.cfm

A 2006 government study in the United Kingdom revealed that 2 out of 5
sexual harassment victims in the UK are male, with 8% percent of all
sexual harassment complaints to the Equal Opportunities Commission
(Britain’s EEOC), coming from men. The UK’s “Equal Opportunities
Commission’s Code of Practice on Sex Discrimination” clearly spells
out that protection from sexual harassment protection is available for
both men and women. The European Commission’s code of practice on the
Protection of the Dignity of Women and Men at Work is used to protect
both men and women from sexual harassment at employment.

Given the above data the statement of the WCD ministry does not have
any credibility and is at best be termed as a poor and unscientific
assumption made to create a Gender Biased law.

2)“Harassment of men cannot be put on the same footing character wise
or incidence wise”
The WCD ministry must be called upon to explain the meaning of this
sentence and on what basis they concluded that the harassment of men
is on a lesser footing than women. Does the WCD consider men any less
of human beings than women? Is the stigma and suffering of a man any
less than women if sexually harassed at workplace?
This analogy of the WCD Ministry is totally against the Universal
Declaration of Human rights adopted by the United Nations. The WCD
Ministry has no right or mandate to degrade the modesty of men and
claim that the modesty of women is far more valuable than the modesty
of men and hence idea to protect men can as well be ignored. The time
has come when men and women must be afforded equal protection from all
crimes in home, office or otherwise. No one can expect special
pamperment based on their gender especially when data overwhelmingly
shows that men too are increasingly being victimized by the same crime
that women are protected against. This highly biased and sexist
statement in itself is evidence enough that the law making process in
the sexual harassment act was nothing more but a farce and that
ministry has a biased one sided agenda which does not rely on any
research on sexual harassment against men, nor does it take into
account the sexual harassment laws that have been formulated by other
countries.

The Government cannot blatantly ignore one gender and deny offering
protection to one gender based on such uneducated and sexist
assumptions which are clearly without any merits whatsoever. Hence
this sexist assumption of the WCD ministry with which it has rejected
the overwhelming majority of public opinion to make the law gender
neutral is against the democratic law making process and cannot be
accepted.

3) “Protection of men is also not the mandate of Ministry of WCD”

The above remark is an outrageously “stupid” comment and exposes the
utterly poor quality of law making in India. The WCD ministry has
clearly trying to incite a gender war by these statements. It is
common sense that any law must be drafted by a ministry or a committee
which has the mandate to protects all the sects, genders, religions or
parties who can or might get affected by the law. Will the Hon’ble
Prime Minister allow the drafting of a law concerning Hindus and
Muslims by a Ministry that openly claims that it does not have the
mandate to protect the Muslims? It is obvious that this law will be
end being heavily biased against the Muslims. This is exactly what has
happened here if we replace the term Hindus with Females and the term
Muslim with males. Then on the same lines the Petroleum ministry or
coal ministry must be given the open license to pollute the atmosphere
and cause oil spills since they do not have the mandate of protection
of the environment. The ministry for commerce will issue wholesale
licenses for hunting Indian tigers to extinction because the
protection of tigers an endangered species is not their mandate! The
current law making process is somewhat similar to those during the
Nazi period, when Nazis , who had no mandate to protect the Jews,
drafted laws for the Jews and then called it a socialist law making to
the people of the world.
Every law and action has a cause and an effect. By creating laws and
not bothering about aftereffects of the same the WCD has demonstrated
a fascist law making attitude.

Relieve WCD and NCW from law drafting responsibilities immediately

It is a very true statement as the mandate of the WCD does not entail
protection of men, but using this as shield to create laws only for
females while males and homosexuals suffer from the same crimes is
beyond my understanding. So I respectfully ask which ministry has the
mandate to protect men and the LGBTs. In western societies the law
makers while making laws normally make gender neutral laws taking into
account detailed research and statistics to first determine if the
problem affects both sexes and then they formulate laws that protect
both sexes. Laws on Sexual Harassment, Domestic violence and Sexual
Assault are some of the laws that are gender neutral in the west.
However in India the situation is starkly different. The main reasons
why most new laws are horribly biased and anti male and anti
homosexuals simply because the ministry that is making the laws has no
mandate to protect men and makes laws with clumsy wording and blatant
ignoring of principles of natural justice and universal declaration of
human rights. Also there is no watch dog to review these laws and make
sure that the issues of the genders other than the female are also
appropriately represented. On top of it there are some people in the
WCD ministry. These people with vested interest make laws which are
both beneficial to their ideology and interests and also make money
for their lawyers. The WCD ministry has made it very clear that it
does not want to take the responsibility the welfare of men who
constitute 50% of the country’s population.

In order to preserve the democracy in India, after learning of the
mandate of the WCD from their own mouth organizations like WCD and NCW
cannot be allowed to formulate gender laws any more since they will
obviously be severely biased. Laws created by these agencies are
unnecessarily inciting a gender war in the country and only leading to
wide scale family destruction and mutual hatred between genders.

I strongly demand that the WCD ministry and the NCW must not be
allowed to formulate or have any say in formulation of laws effective
immediately and all law making responsibilities must be immediately
handed over to the Ministry of Health & Family Welfare which will have
the mandate of protection of males, females, homosexuals and all
citizens irrespective of gender and sexual orientation.

By : Arnab Gunguly.