Jessamine Mathew

| @ | August 4,2019

[dropcap]I[/dropcap]NDIA is no stranger to horrific stories of sexual harassment at the workplace. From the colourful film industry to private offices to even the Supreme Court of India, multiple individuals have raised complaints of harassment that they have faced. With the#MeToomovement last year, women have come forward with their stories, creating unprecedented traction and scrutiny into how sexual harassment affects a person’s work and livelihood.

The movement towards preventing sexual harassment at the workplace began with an incident in a small town in Rajasthan 27 years ago. In 1992, a social worker was raped following her efforts to stop a child marriage as part of her work for the state government. The rapists were acquitted by a lower court. However, her case spurred a revolution which sought to address sexual harassment at or on account of a woman’s work. In response to the acquittal, a Public Interest Litigation petition was filed before the Supreme Court of India by various women’s rights groups, which resulted in the landmark judgment in Vishaka v. State of Rajasthan in 1997. This judgment set out what is popularly called the Vishaka guidelines, which mandated that employers across India must take certain steps to protect female employees from sexual harassment at the workplace. Although women could file police complaints under Section 354 of the Indian Penal Code, 1860, this judgment was the precursor and the starting point for the law against sexual harassment at the workplace.

 

The POSH Act is not gender-neutral

 

After decades of deliberation, the Indian Parliament passed the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act) – which applies to all public and private employers and employees. In addition to clearly defining sexual harassment, the law is revolutionary and unique as it decentralises the dispute resolution mechanism for survivors of sexual harassment. Instead of filing a criminal complaint (as was the only legal recourse earlier), the law mandates the setting up of localised committees (either by the employer or by the local government officials) which will hear complaints, conduct an inquiry, and recommend action to be taken against perpetrators (typically ranging from a written apology to termination of employment). Survivors of sexual harassment still have the option to criminally proceed against their attackers under the Indian Penal Code, 1872, but the presence of these specialised committees offers quick and effective relief (including restraining the perpetrator from contacting or supervising the survivor), unlike a criminal case which could drag on for years.

However, one crucial aspect of the POSH Act is that it is not intended to be gender-neutral. As the title suggests, it creates the redressal framework only for “aggrieved women”. Unless the employer formulates a gender-neutral policy, only female employees are entitled to relief. In part, this can be attributed to India’s reliance on the principles set out in the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which focuses on women’s rights issues. Further, given that the genesis of the law was in the sexual assault of a woman worker, the predominant mindset has been to build a framework that encourages women to participate in the workforce without fear of their safety being affected.

The possibility of a gender-neutral law was brought up during the legislative process. However, this discussion was limited to various men’s rights groups seeking equality of treatment and was captured as a “male vs female” discourse. Addressing the issue, the Parliamentary Standing Committee in 2011 recommended that the law remain gender-specific as “women have been at a disadvantaged position and have been discriminated, abused and harassed.” The Committee fell back on the ideology that women are specifically disempowered to work due to rampant sexual harassment and hence, recommended a gender-specific law. The overall objective was to increase female workforce participation and ensure that a robust mechanism exists to protect women’s employment rights.

However, India’s legal and societal landscape has undergone much change which begs the question as to whether the approach needs to be revisited. Just a few months after the POSH Act was passed, in May 2014, the Supreme Court of India recognised and affirmed the fundamental rights of transgender individuals. Among other aspects, the court highlighted various instances where transgender individuals face harassment, including sexual harassment. The judgment was progressive, inclusive, and was a long-awaited first step in legally recognising the identities and rights of trans persons.

India is no stranger to the transgender community. However, persons who identified as transgender were often ostracised, ridiculed, demeaned, and harassed in public and private. They were denied their basic human rights by governmental (eg police) and non-governmental parties alike, which also affected their right to work. Even some laws such as the Telangana Eunuchs Act, 1919, actively criminalised the existence of transgender individuals. There have been petitions to strike down this law as unconstitutional.

Since the 2014 judgment, transgender persons have been steadily occupying positions in public and private organisations. Reports narrate the appointment of transwomen as a judge in West Bengal, a clerk in the Karnataka government secretariat, and as a part of the Chennai police. Some private companies are also now implementing initiatives to increase diversity in the organisations, with a focus on LGBTQ+ employment.

However, despite these efforts and developments, trans persons still find it difficult to find formal employment due to rampant discrimination, prejudice, and harassment. This is evidenced in how rare it is to find trans persons in conventional employment spaces. Although there is much focus on diversity and inclusion in the workplace, the discussion often does not venture forth into discussions regarding creating employment opportunities for individuals on all ends of the gender and sexuality spectrum.

 

Looking beyond the male-female metric

 

Glaring in its absence are also first-person accounts and narratives regarding the harassment that trans persons face not only as employees in formal workplaces, but also in even applying or looking for work in the organised sector. One possible explanation is that since there is no discussion regarding inclusion beyond the “male vs female” metric, there is limited space for trans persons to make their voices heard or even occupy a place in the formal economy.

Further, our laws (as they stand today) aim to redistribute social capital and equalise the status of men and women – a topic that has especially gained traction in the last few years. However, laws have the power to be visionary, to present a solution to a problem nobody is talking much about – and it is this power that can bring about a social change. For instance, India had passed the POSH Act years before the #MeToomovement went viral on social media.

 

Transgender persons must be protected

 

Therefore, in light of these legal and social developments, it is vital for India’s constitutional and human rights law to take active and visible steps to protect minority communities. Trans persons should be explicitly included in the human rights agenda of the country and it is only fair and equitable for them to be afforded the same protection. In 2016, Transgender Persons (Protection of Rights) Bill was tabled in Parliament and subsequently passed by one House of Parliament. This proposed law seeks to outlaw discrimination against trans persons and offer protection against various forms of abuse, including sexual abuse.

However, parallel amendments must be introduced in the POSH Act as well if we are to truly embrace the idea of a harassment-free workplace where individuals are free to work and earn a livelihood. It is only when a community is afforded equal protection, procedurally and substantively, that they will be empowered to effectively participate in public. The right to livelihood is enshrined in India’s constitutional ethos as a fundamental right and to that end, the state and society must endeavour to remove any harmful practice that stands in the way of any individual’s basic human right – irrespective of their gender.

The approach to extend protection that was traditionally afforded to women to trans persons is slowly gaining traction as well. In December 2018, a Delhi High Court judgment ruled that the criminal provisions on sexual harassment (which are typically applicable for male-on-female harassment) could be used by transgender individuals to file complaints as well. This step towards equality of treatment under India’s penal law should be translated into the civil statute as well.

 

Need to address severe barriers faced by transgender persons

 

There are many procedural issues that trans persons face when they are a part of the formal workforce, which translate into severe barriers for them to be fully present in India’s public voice. These range from facing roadblocks in official documentation which requires their gender to be listed to not having access to bathrooms that they can safely use. To add to these infrastructural difficulties, they also often have to contend with discrimination from their peers and superiors as well. The psychological and social effect that these barriers have on an individual cannot be understated.  It is the role of the government and of society to jointly work towards preventing and addressing discrimination.

In September 2018, the Supreme Court delivered another hallmark judgment, decriminalising consensual sexual acts between adults, including homosexual sex. The judgment was hailed as a victory for those from all quarters of the LGBT community and as a step towards enforcing the right to equality. The court highlighted the severe and damaging discrimination faced by members of this community and called for a change in outlook towards those whose identities are threatened by the majority. However, on the ground, there is a long way to go before we can say that

While the judiciary has paved the way for equality, it is equally important for this to be translated into legislation and finally into societal change. The right to work and earn a livelihood is crucial to an individual’s and indeed, a society’s sustenance, and it is unjust if this right is taken away from them due to unfair, harassing treatment.

Jessamine Mathew is a lawyer based in Bangalore. She works extensively on issues related to the prevention of sexual harassment at the workplace.

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