DHANANJAY MAHAPATRA IN THE TIMES OF INDIA
It is too early to say whether Dominique Strauss-Kahn was framed by a woman employee of a hotel. It cost him his job as IMF chief and cast a shadow on his ambition to become French president. After prosecutors developed doubts over veracity of the victim’s charges, Kahn got unconditional bail. Will the relief save his image, reputation and political prospects? It is difficult to say but, generally, allegations of sexual assault or exploitation against the rich, powerful and famous are taken to be true.
But the most equipped investigation, able prosecution and hawk-eyed judicial scrutiny sometimes fail to unravel the facts. Actor Shiney Ahuja, who probably would be finding similarities of his case with that of Strauss-Kahn, will agree. The Supreme Court faced an identical dilemma just last year, relating to dowry harassment cases under Section 498A of Indian Penal Code. “It is common knowledge that unfortunately, matrimonial litigation is rapidly increasing in our country… this clearly demonstrates discontent and unrest in the family life of a large number of people of society,” it said.
On the one hand, the law was the social legislation giving women protection against harassment at the hands of the husband and his relatives, who demand more and more dowry. The court was concerned with the rapid rise in such cases. But on the other hand, it was aware that “a large number of such complaints are not bona fide and are filed with oblique motive”.
It admitted, “To find out the truth is a herculean task in a majority of these complaints. The tendency of implicating husband and all his immediate relations is also not uncommon. At times, even after the conclusion of criminal trial, it is difficult to ascertain the real truth.”
The SC wanted a way out of the vicious cycle of litigation that mostly ruins innocent husbands and in-laws, who are falsely roped in, but seldom affects the real perpetrators who exploit loopholes in the system to escape the law.
The court was worried by the overkill of Section 498A. It did not want a socially beneficial legal framework to be turned into a mechanism of legal terrorism. It requested the Law Commission to examine the issue and suggest changes that could help create an ambience where the perpetrators could be adequately punished and at the same time, leave some room for negotiations to arrive at an amicable settlement. The commission invited suggestions from all quarters, including NRIs. And the overwhelming response was in favour of thorough investigations into the complaint of the wife under Section 498A before police arrested the husband and in-laws.
The commission is in the process of finalizing its decision which appears to be in favour of providing for a settlement clause between the victim and in-laws, which could be a welcome breather. However, it is against making the offence under Section 498A bailable.
Before any change is made in the law that was enacted to protect women from dowry harassment, it needs to be debated whether a woman’s complaint under Section 498A be thoroughly probed before effecting arrest of the husband and her in-laws.
Right now, once a Section 498A complaint is lodged, the police arrests the person named by the wife. The SC had said, “The allegations of harassment of husband’s close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complaint are required to be scrutinized with great care and circumspection.”
The commission, before sending its recommendation to the government, must examine this aspect — what should be the protection to husbands and in-laws who have been framed in a complaint under Section 498A. But it must also not lose sight of the gruesome treatment meted out to women who fail to satisfy the greed of husbands and their in-laws.
- Consultation Paper-cum-Questionnaire regarding Section 498-A of Indian Penal Code (indialawyers.wordpress.com)
PRS LEGISLATIVE REVIEW
The Bill lays down the definition of sexual harassment and seeks to provide a mechanism for redressing complaints. It provides for the constitution of an ‘Internal Complaints Committee’ at the work place and a ‘Local Complaints Committee’ at the district and block levels. A District Officer (District Collector or Deputy Collector), shall be responsible for facilitating and monitoring the activities under the Act.
Highlights of the Bill
- The Bill defines sexual harassment at the work place and creates a mechanism for redressal of complaints. It also provides safeguards against false or malicious charges.
- Every employer is required to constitute an Internal Complaints Committee at each office or branch with 10 or more employees. The District Officer is required to constitute a Local Complaints Committee at each district, and if required at the block level.
- The Complaints Committees have the powers of civil courts for gathering evidence.
- The Complaints Committees are required to provide for conciliation before initiating an inquiry, if requested by the complainant.
- Penalties have been prescribed for employers. Non-compliance with the provisions of the Act shall be punishable with a fine of up to Rs 50,000. Repeated violations may lead to higher penalties and cancellation of licence or registration to conduct business.
Key Issues and Analysis
- There could be feasibility issues in establishing an Internal Complaints Committee at every branch or office with 10 or more employees.
- The Internal Complaints Committee has been given the powers of a civil court. However, it does not require members with a legal background nor are there any provisions for legal training.
- The Bill provides for action against the complainant in case of a false or malicious complaint. This could deter victims from filing complaints.
- Two different bodies are called ‘Local Complaints Committee’. The Bill does not clearly demarcate the jurisdiction, composition and functions of these Committees.
- Cases of sexual harassment of domestic workers have been specifically excluded from the purview of the Bill.
- Unlike sexual harassment legislation in many other countries, this Bill does not provide protection to men.
PART A: HIGHLIGHTS OF THE BILL
India has signed and ratified the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW). However, India does not have a specific law to address the issue of sexual harassment of women at the place of work. Currently, the Indian Penal Code (IPC) covers criminal acts that outrage or insult the ‘modesty’ of women. It does not cover situations which could create a hostile or difficult environment for women at the work place.
In 1997 as part of the Vishaka judgment, the Supreme Court drew upon the CEDAW and laid down specific guidelines on the prevention of sexual harassment of women at the work place.1 The Vishaka guidelines defined sexual harassment and codified preventive measures and redressal mechanisms to be undertaken by employers.
A draft Bill was circulated by the Ministry of Women and Child Development for public feedback in 2007. The current Bill establishes a framework to be followed by all employers to address the issue of sexual harassment.
The Bill lays down the definition of sexual harassment and seeks to provide a mechanism for redressing complaints. It provides for the constitution of an ‘Internal Complaints Committee’ at the work place and a ‘Local Complaints Committee’ at the district and block levels. A District Officer (District Collector or Deputy Collector), shall be responsible for facilitating and monitoring the activities under the Act.
Prohibition of Sexual Harassment at the Work Place
- Sexual harassment is defined to include unwelcome sexually determined behaviour such as physical contact, request for sexual favours, sexually coloured remarks, screening of pornography, or any other conduct of sexual nature.
- The Bill prohibits sexual harassment at the work place which may include promise of preferential treatment, threat of detrimental treatment, hostile work environment, or humiliating conduct constituting health and safety problems.
- The Bill defines a work place to include all organizations, and any place visited by an employee during the course of work. It covers every woman at the work place (whether employed or not) except a domestic worker working at home. It defines employer as the person responsible for the management, supervision and control of the work place.
Duties of the employer
- The Bill assigns certain duties to each employer. These include (a) providing a safe working environment; (b) constituting an Internal Complaints Committee and conspicuously displaying the order constituting the Committee; (c) undertaking workshops and training programmes at regular intervals for sensitizing employees; (d) providing assistance during an inquiry; and (e) initiating action against the perpetrator.
Structure for redressal of complaints
- Every employer is required to constitute an ‘Internal Complaints Committee’ at all offices and branches with staff strength of 10 or more employees. Members of the committee shall include a senior woman employee, two or more employees and one member from an NGO committed to the cause of women. A member of this Committee may not engage in any paid employment outside the duties of the office.
- A ‘Local Complaints Committee’ is required to be constituted in every district. An additional ‘Local Complaints Committee’ shall also be constituted at the block level to address complaints in situations where the complainant does not have recourse to an Internal Complaints Committee or where the complaint is against the employer himself.
- The ‘Local Complaints Committee’, to be constituted by the District Officer, shall include an eminent woman as the Chairperson, a woman working in the area, two members from an NGO committed to the cause of women, and a Protection Officer appointed under the Protection of Women from Domestic Violence Act, 2005.
- At least 50 percent of the nominated members in any Internal or Local Committee must be women.
Procedure for filing complaints and initiating inquiry
- An aggrieved woman may complain to the Internal Committee. In the absence of such a committee, she may file a complaint with the Local Committee. All complaints must be in writing. The complainant may also pursue other remedies, including filing a criminal complaint.
- The Committee shall provide for conciliation if requested by the complainant. Otherwise, the Committee shall initiate an inquiry.
Penalties and appeal
- If the allegation is proved, the Committee shall recommend penalties for sexual harassment as per service rules applicable or the Rules under the Act. In addition, it may provide for monetary compensation to the complainant.
- If the allegation is proved to be false or malicious, the Committee may recommend action against the complainant. However, action may not be taken against a complainant merely on the inability to substantiate a complaint or provide adequate proof.
- Appeals against the recommendations of either Committee shall lie with the courts.
- Penalties have also been prescribed for employers who fail to comply with the provisions of the Act. Non-compliance shall be punishable with a fine of up to Rs 50,000. Repeated violations may lead to higher penalties and cancellation of licence or registration required for carrying on the business.
PART B: KEY ISSUES AND ANALYSIS
Feasibility issues in the composition of the Internal Complaints Committee
Constitution of an internal committee at each administrative unit
The Bill requires that every office or branch with 10 or more employees constitute an Internal Complaints Committee. This requirement differs from the one proposed in the draft Bill circulated by the National Commission for Women (NCW) in 2010.2 The NCW draft Bill prescribed that if units of the work place are located at different places, an Internal Committee shall be constituted ‘as far as practicable’ at all administrative units or offices. A similar requirement was laid down in the 2007 draft Bill circulated by the Ministry of Women and Child Development.3
NGO representation in Internal Committees
Each Internal Committee requires membership from an NGO or association committed to the cause of women. This implies that every unit in the country with 10 or more employees needs to have one such person in the Committee. As per the Economic Census 2005, there are at least six lakh establishments that employ 10 or more persons.4 There is no public data on the number of NGO personnel ‘committed to the cause of women’. There could be difficulties in implementation if sufficient number of such NGO personnel is not available.
Bar on engagement in additional paid employment
No member of the Internal Committee is allowed to engage in any paid employment outside the duties of her office. This implies that even the external person in the Committee (who is with an NGO) may not hold any other part-time employment. It is not clear why this condition has been prescribed.
Powers of a civil court
The Internal Complaints Committee has been given powers of a civil court for summoning, discovery and production of documents etc. The composition of the Internal Committee does not require any member to have a legal background. Moreover, the Bill does not specify any requirement of legal training to the Committee for fulfilling these duties. This provision differs from that of the Local Complaints Committee, in which at least one member has to ‘preferably’ have a background in law or legal knowledge.
Ambiguous guidelines for the constitution of the Local Complaints Committee
Two different bodies are called ‘Local Complaints Committee.’ The Bill provides that every District Officer shall constitute a Local Complaints Committee in the district. It also prescribes that an additional Local Complaints Committee shall be constituted at the block level to address complaints in certain cases.
The jurisdiction and functions of these committees have not been delineated. It is also unclear whether the block level committees are permanent committees or temporary ad hoc committees constituted for dealing with specific cases.
Availability of Protection Officers
The Bill prescribes that a Protection Officer (PO), appointed under the Domestic Violence Act, 2005, shall be a member of the Local Complaints Committee. These Local Committees shall be established at the district level and may also be set up at the block level.
There is wide variation across states in the number of POs appointed per district.5 For instance, Maharashtra has appointed an average of 98 POs per district. Bihar, on the other hand, has appointed one PO for every two districts. This could lead to unavailability of POs in some areas for appointment to the Local Complaints Committees.
Scope for misuse of some provisions
Punishment for false or malicious complaints
The Bill provides that in case a committee arrives at a conclusion that the allegation was false or malicious, it may recommend that action be taken against the woman who made the complaint. The clause also provides that mere inability to substantiate a complaint or provide adequate proof need not attract action against the complainant.
Though there may be merit in providing safeguards against malicious complaints, this clause penalises even false complaints (which may not be malicious). This could deter women from filing complaints. Recent Bills such as the Public Interest Disclosure Bill, 2010 (commonly known as the Whistleblower’s Bill), penalise only those complaints that are mala fidely and knowingly false.6 The National Advisory Council (NAC) has recommended that the entire clause be removed as it might deter victims from seeking protection of the proposed legislation.7
Exclusion of domestic workers
The definition of ‘employee’ specifically excludes ‘domestic workers working at home’. The draft Bill circulated by the Ministry in 20073 and that circulated by the NCW in 2010,2 both included this category of employees in the definition.
The NAC recommendedthat the Bill should be applicable to domestic workers as these employees, ‘especially live-in workers, are prone to sexual harassment and abuse, without access to any complaint mechanism or remedial measures.’7 However, the government stated that ‘it may be difficult to enforce the provisions of the Bill within the privacy of homes and it may be more practical for them to take recourse to provisions under criminal law.’8
Sexual harassment is a form of illegal employment discrimination in many developed countries including the US, UK and the European Union countries.9 In these domains, the definition of sexual harassment includes employer-employee relationship as well as a hostile work environment. This is similar to the current Bill. However, those laws differ in one important aspect, in that they are gender neutral. This Bill provides protection only to women, and not to men.
. Vishaka and others V. State of Rajasthan and others [1997 (6) SCC 241]
. Revised Draft Bill, ‘The Prohibition of Sexual Harassment of Women at Workplace Bill, 2010’, National Commission for Women, http://ncw.nic.in/PDFFiles/sexualharassmentatworkplacebill2005_Revised.pdf
. Draft Bill, ‘The Protection of Women against Sexual Harassment at Workplace Bill, 2007’, Ministry of Women and Child Development, http://wcd.nic.in/protshbill2007.htm
. 5th Economic Census (2005), Ministry of Statistics and Programme Implementation, http://www.mospi.gov.in/index_6june08.htm
. ‘Agenda No. 7 Review of implementation of Protection of Women from Domestic Violence Act, 2005’, Ministry of Women and Child Development, June 16, 2010, http://wcd.nic.in/agenda16062010/agenda_16062010_item7.pdf
. Clause 16 of The Public Interest Disclosure and Protection to Persons Making the Disclosures Bill, 2010
. Press release, National Advisory Council, January 10, 2011, http://nac.nic.in/press_releases/10_january_2011.pdf
. Rajya Sabha unstarred Question 3706, answered on December 13, 2010
. The Civil Rights Act of 1964, United States; Sex Discrimination Act (1975) and Employment Rights Act (1996), United Kingdom; Sexual Harassment in the Workplace in EU Member States, Government of Ireland, 2004
Tonusree Basu Rohit Kumar
DISCLAIMER: This document is being furnished to you for your information. You may choose to reproduce or redistribute this report for non-commercial purposes in part or in full to any other person with due acknowledgement of PRS Legislative Research (“PRS”). The opinions expressed herein are entirely those of the author(s). PRS makes every effort to use reliable and comprehensive information, but PRS does not represent that the contents of the report are accurate or complete. PRS is an independent, not-for-profit group. This document has been prepared without regard to the objectives or opinions of those who may receive it.
- The Sexual Harassment Bill, going forward (indialawyers.wordpress.com)
Related news articles
Notwithstanding many legal reforms, societal responses to domestic violence still largely exclude legal intervention. Women’s access to these laws is very rare as male batterers are not arrested, prosecuted, or sentenced as severely as other violent offenders which are confirmed by studies.
Vineet Kapoor in The Tribune
VIOLENCE in the private sphere of the family and the victimisation of women in the intimate relationships has acquired legitimacy and urgent attention in the legal discourse. Starting from its recognition as a crime in the last 40 years, the issue is now actively advocated by women’s rights group as an important concern of their human rights.
This recognition identifies violence in the private sphere not merely as a crime, but locates the context of this crime into the systemic process of structural subordination of women in a gendered social order where violence reconfirms and reproduces those gender hierarchies through fear, which produce this violence in the first instance.
That is why the criminal justice response is not similar to other crimes happening in the public sphere. There is a gap between the normative and legal framework on the one hand and the accessibility of justice and law enforcement on the other. Though progressive and social justice based laws have been enacted for the emancipation of the subordinated people and groups, the laws related to domestic violence remain victim to gaps.
The central context of the problem of domestic violence and women’s access to justice is that despite a proliferation of laws, domestic violence is still perceived as less condemnable than other forms of abuse. Locating violence against women as denial of human rights raises fundamental concerns for the women’s access to justice and how the legal order of any country addresses this issue.
The context of subordinated social existence of most women, when seen through a human rights angle, depends on how best a domestic legal order responds to these expectations (Dairam: 2004). Despite a proliferation of laws in this direction, there is a lack of proper law enforcement in case of domestic violence reflected by an international phenomenon cutting across different countries.
This phenomenon confirms to a gendered social order of subordination in which women exist and struggle against their victimisation. The high stakes the Indian Constitution attaches to the question of equality, by enshrining it as a fundamental right, whose mandate covers the issue of non-discrimination on grounds of sex, gives much credence to human rights readings of legal discourse and women’s rights in India.
The women’s emancipation and rights realisation on the ground, however, forms a different context. The brutalised and subordinated existence of a large proportion of women within their social environment gives formidable challenge to visions of equality and human rights which inform most of the ‘progressive’ laws designed to promote social justice and social change.
The evaluation of women’s access to justice gains primacy when we find that the progress in law has not often matched with the progress in providing justice to women.
Some scholars working on women’s human rights maintain that certain sections of society may encourage a culture of violence due to the socially constructed view of women as flawed and wayward creatures who require chastisement for their own and social good. The encouragement may stem from a dominant focus on male self-identity, using violence against women to define and differentiate men from the inferior ‘other’.
It was until late 1960s that the problem was seriously scrutinised and the public concern started mounting against it internationally. The issue of domestic violence came under the sharp focus of second wave feminism from 1970s onwards when the feminists attacked the patriarchal legitimacy of violence and talked of women’s rights to security within the family and their claims to equality and liberty within the private sphere.
They argued that “personal is political” and that the inner world of family should be open to public scrutiny so that the inequalities and power relations within the family could be made visible.
Since the popular conception of violence at home did not merit much consideration as a punishable offence, the feminist movement, aimed at attaining substantive equality for women, regarded the domestic violence as one of the chief disabilities for the promotion of women’s rights and their claims to equality. Women’s rights movement struggled hard to campaign for the inclusion of various manifestations of domestic violence as a crime within the criminal justice system to get law on the side of the women in their struggle for justice. The feminist movement exerted influence in extending the reach of criminal law within the insulated world of private sphere manifested by family and the home.
By 1980s and 1990s, many countries legislated for inclusion of domestic violence within the criminal law while most countries still did not legislate and were slow to respond. Most countries which did not legislate against domestic violence as a distinct crime continue to treat it under its criminal assault laws.
There was growing realisation since late 1980s that domestic violence needs special attention and is closely associated with women’s rights. Due to the growing influence and impact made by the women’s movement between 1970s and 1990s, the issue of domestic violence attained a primacy in at least the formal stance taken in public policy and criminal justice system of many countries.
The local women’s movement in many countries, inspired and energised by the international women’s human rights movement greatly contributed in exerting pressure on their respective governments to change their policy stance especially in the criminal justice system to comply with the ongoing international standard setting.
The international developments in this direction gave strength to the demands from the women’s rights groups in India. The recognition of domestic violence as a crime in India was brought about in the early 1980s after a sustained campaign by feminist groups and women activists all over the country. There was a huge demand for tackling the criminalisation of dowry death and domestic violence which lead to the enactment of Section 498A in the IPC in 1983, Section 304B in 1986 and corresponding provisions in the Indian Evidence Act, 1872.
The criminalisation of domestic violence in the form of Sections 498A and 304B (dowry death) were considered significant developments in law in correcting historical, legal, and moral disparities in the legal protections afforded to abused women. It sought for the first time to bring the issue of domestic or family violence out of the protected private realm of the family and into the public domain in India.
Despite these legal reforms, societal responses to domestic violence still largely exclude legal intervention. Women’s access to these laws is very rare as male batterers are not arrested, prosecuted, or sentenced as severely as other violent offenders which are confirmed by studies done by several organisations and NGOs.
There are problems in access to justice and implementation of these laws. The police often exercises discretion in avoiding arrest while responding to domestic violence incidents and emphasises on mediation and conciliation.
Public prosecutors fail to actively pursue cases of domestic violence under Section 498A, as often women turn hostile during the prosecution and agree to drop the charges. Sentences tend to be less serious for those convicted of domestic violence.
The result of these processes has been a higher dismissal rate for domestic violence cases at the prosecution stage, compared to other violence cases, and less serious sentences. The passing of the specialised legislation in October 2006, called The Protection of Women from Domestic Violence Act, is a significant development in this direction as it provides the much-needed civil law remedies to help victims of domestic violence.
These criminal laws and the civil law provisions now make an impressive set of laws designed to deal with the domestic violence and to provide justice to the victims of domestic violence. Despite this, the question that arises is how far these laws are being used by the victimised women.
The delivery of these laws within a gendered social order raises a number of concerns regarding the human rights of victimised women who exist in a position of structural subordination, which leads to formidable barriers in access to justice.
As a background to discuss women’s access to justice in case of domestic violence, it is useful to first discuss the domestic violence as an issue of women’s human rights. Violence against women is also an issue of the women’s human rights as the systematic perpetration of violence on women is a result of the subordinated position of women in society which in itself raises questions on the right to equality based on grounds of sex.
Since violence against women mostly occurs in the private sphere of the family, the human rights of women as an individual need to be considered while dealing with policy issues attached to domestic violence. The human rights tenets give credence to the responsibility of the state. Therefore, the role of the state in providing for need-based policy provisions for access to justice for women need to be urgently addressed.
As for policy, the government will have to consider that the women’s lack of access to justice in cases of domestic violence remains victim to the structural issues of women’s subordination which gets reflected in the delivery of justice and its distance from the victim, throwing challenges at law, justice and governance in the country. How this law reaches women and how and in what context it is delivered would determine whether women have access to justice as equal citizens.
THE LAW: ITS SCOPE & DIMENSIONs
- The Protection of Women from Domestic Violence Act, 2005, which came into force from October 26, 2006, is the first significant attempt to recognise domestic abuse as a punishable offence.
- Its provisions have been extended to those in live-in relationships, and to provide for emergency relief for the victims, in addition to legal recourse.
- Of all forms of criminal behaviour, domestic violence is among the most prevalent and among the least reported. One reason for this anomaly is that till 2005, remedies available to a victim of domestic violence in the civil courts (divorce) and criminal courts (vide Section 498A of the Indian Penal Code) were limited.
- Earlier, there was no emergency relief available to the victim; the remedies that were available were linked to matrimonial proceedings; and the court proceedings were always protracted, during which period the victim was invariably at the mercy of the abuser. Relationships outside marriage were not recognised.
- Women and children are the primary beneficiaries of this Act. Section 2(a) of the Act will help any woman who is or has been in a domestic relationship with the ‘respondent’ in the case.
- Children are also covered under the Act; they too can file a case against a parent or parents who are tormenting or torturing them, physically, mentally, or economically. Any person can file a complaint on behalf of a child.
- The law recognises live-in relationships. Thus, if a woman is living with a man who abuses her, she can take recourse to the provisions of this law even though she is not married to him. It also protects women in fraudulent or bigamous marriages, or in marriages deemed invalid in Law
The writer, a senior IPS officer of Madhya Pradesh cadre, specialises on human rights. He is the Assistant Inspector-General of Police (Training),Bhopal
RAKESH BHATNAGAR IN THE DNA
Is it an offence to cohabit with a woman after inducing a belief of marriage in her? Is it an offence to back out of such a relationship? Supreme Court (SC) judges Markandey Katju and Gyan Sudha Mishra are divided and want a larger bench to decide the matter. Chief Justice of India (CJI) SH Kapadia will soon take a call on setting up such a bench to put at rest the controversy over an ‘illegal’ act and ‘indecent’ behaviour. Katju and Mishra differences have emerged over an appeal filed by Ram Chandra Bhagat, who was convicted by a trial court and the Jharkhand high court for committing an offence under IPC section 493 (cohabitation by a man after deceitfully inducing a belief of lawful marriage in a woman). The section also says every man who by deceit cohabits with a woman who is not his wife on the assurance that they are a legally married couple is liable to be punished with imprisonment up to 10 years.
Mishra found no ambiguity in this provision. She agreed with Katju on the limited issue that law and morality might stand on different footings. But in her perception they are “inextricably linked”. Mishra also said a legal decision could not be based purely on morality.Katju, however, said often an act may be regarded immoral by society, but it may not be illegal. He offered a different interpretation of section 493 IPC that it is meant for couples legally married under Hindu Marriage Act.Revenue officer Bhagat lived like a couple with Sunita Kumari for years and they had two children. Sunita accompanied him wherever he was posted. He had filed an affidavit with the authorities that they were a married couple. The voters list too shows this. However, he kicked her out of home in 1990. She lodged a criminal complaint and the courts convicted Bhagat, saying he had committed fraud and cheated Sunita.
Bhagat has not behaved like a “gentleman”. He lived with Sunita for nine years and had two children with her and “hence as a decent person he should have married her, which he did not do”, they said.
Katju, however, said Bhagat didn’t commit an illegal act and that there was a difference between law and morality.“If we say something is illegal, we must point to some specific section of IPC or some other statute which has been violated,” he said, adding, “Merely saying that the person has done something improper will not necessarily make the act illegal.”
- Not all live-in affairs are ‘relationship in the nature of marriage’, says Supreme Court (indialawyers.wordpress.com)
- Not all live-in affairs are ‘relationship in the nature of marriage’, says Supreme Court (thehindu.com)
- Live-in relations: ASG flays SC for using ‘keep’ (ibnlive.in.com)
- Rights of women in live-in relations under court lens (indialawyers.wordpress.com)
The Union Cabinet today approved the introduction of the Protection of Women against Sexual Harassment at Workplace Bill, 2010 in the Parliament to ensure a safe environment for women at work places, both in public and private sectors whether organised or unorganized. The measure will help in achieving gender empowerment and equality.
The proposed Bill, if enacted, will ensure that women are protected against sexual harassment at all the work places, be it in public or private. This will contribute to realisation of their right to gender equality, life and liberty and equality in working conditions everywhere. The sense of security at the workplace will improve women’s participation in work, resulting in their economic empowerment and inclusive growth.
Salient features of the Bill are as follows:
The Bill proposes a definition of sexual harassment, which is as laid down by the Hon’ble Supreme Court in Vishaka v. State of Rajasthan (1997). Additionally it recognises the promise or threat to a woman’s employment prospects or creation of hostile work environment as ‘sexual harassment’ at workplace and expressly seeks to prohibit such acts.
The Bill provides protection not only to women who are employed but also to any woman who enters the workplace as a client, customer, apprentice, and daily wageworker or in ad-hoc capacity. Students, research scholars in colleges/university and patients in hospitals have also been covered. Further, the Bill seeks to cover workplaces in the unorganised sectors.
The Bill provides for an effective complaints and redressal mechanism. Under the proposed Bill, every employer is required to constitute an Internal Complaints Committee. Since a large number of the establishments (41.2 million out of 41.83 million as per Economic Census, 2005) in our country have less than 10 workers for whom it may not be feasible to set up an Internal Complaints Committee (ICC), the Bill provides for setting up of Local Complaints Committee (LCC) to be constituted by the designated District Officer at the district or sub-district levels, depending upon the need. This twin mechanism would ensure that women in any workplace, irrespective of its size or nature, have access to a redressal mechanism. The LCCs will enquire into the complaints of sexual harassment and recommend action to the employer or District Officer.
Employers who fail to comply with the provisions of the proposed Bill will be punishable with a fine which may extend to ` 50,000.
Since there is a possibility that during the pendency of the enquiry the woman may be subject to threat and aggression, she has been given the option to seek interim relief in the form of transfer either of her own or the respondent or seek leave from work.
The Complaint Committees are required to complete the enquiry within 90 days and a period of 60 days has been given to the employer/District Officer for implementation of the recommendations of the Committee.
The Bill provides for safeguards in case of false or malicious complaint of sexual harassment. However, mere inability to substantiate the complaint or provide adequate proof would not make the complainant liable for punishment.
Implementation of the Bill will be the responsibility of the Central Government in case of its own undertakings/establishments and of the State Governments in respect of every workplace established, owned, controlled or wholly or substantially financed by it as well as of private sector establishments falling within their territory. Besides, the State and Central Governments will oversee implementation as the proposed Bill casts a duty on the Employers to include a Report on the number of cases filed and disposed of in their Annual Report. Organizations, which do not prepare Annual Reports, would forward this information to the District Officer.
Through this implementation mechanism, every employer has the primary duty to implement the provisions of law within his/her establishment while the State and Central Governments have been made responsible for overseeing and ensuring overall implementation of the law. The Governments will also be responsible for maintaining data on the implementation of the Law. In this manner, the proposed Bill will create an elaborate system of reporting and checks and balances, which will result in effective implementation of the Law.
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- eBossWatch National Sexual Harassment Registry Will Deter Workplace Abuse (prweb.com)
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- The Sexual Harassment Dice (neatorama.com)
- ABC Exec Resigned Because of Sexual Harassment Probe [Television] (gawker.com)
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When it comes to women’s issues and the law, the courts continue to send contradictory signals…
As much as police officers, doctors also need to be taught a rape survivor’s rights.
Two courts. Two judgments. Two attitudes. In the contrast lies the story of what Indian women continue to face when they turn to the law.
On October 21, the Supreme Court, in the context of a case before it, held that a woman in a “live-in relationship” could not claim maintenance in the event of abandonment by the man as such a relationship could not pass as a “relationship in the nature of marriage” as described under the law for arrangements outside formal marriage. The Court held that if the woman was a “keep” of the man, who looked after her financially but “uses mainly for sexual purpose and/or as a servant”, then such a woman was exempted from claiming any benefits of maintenance under the Protection of Women Against Domestic Violence Act 2005 on grounds of abandonment. The ruling led to a justifiable outburst by India’s first woman Additional Solicitor General Indira Jaisingh, who also happens to be one of the main movers of the Domestic Violence Act. Ms. Jaisingh ticked off the judges for using a term like “keep” which she held was derogatory to women and was “male chauvinistic”.
Ms. Jaisingh’s statements in court made it to the front pages of most newspapers. But one wonders how many will pause and think about why she felt she had to raise her voice at the use of such a term in the judgment. It was, as she herself emphasised, because the ruling of the Supreme Court sets a tone and a precedent for future judgments that affect women. One of its judgments in what is called the Vishakha case is even today used as the standard for judging all matters relating to sexual harassment in the absence of a specific law. By using a term like “keep”, you disregard and virtually excuse the responsibility of the man in an arrangement in which two people are involved and where one, the woman, is most likely the more vulnerable. Once this becomes the precedent, any man can go to court and challenge the right of a woman with whom he has a relationship outside marriage, and who demands compensation when abandoned, by claiming that she was merely his “keep”. Therefore, Ms. Jaisingh’s intervention needs to be appreciated, as also her courage for speaking out in the highest court of the land where some others might have felt intimidated.Apart from the Vishakha judgment, the Supreme Court has also passed several orders that make it clear that in a rape case, the woman’s character will not be part of the proceedings during the trial and that it is immaterial to the case. This is also an important precedent in the context of women’s rights. Yet, as is evident from another judgment, in another court in Delhi, the practice continues.
Pronouncing judgment in a rape case on October 23, Additional Sessions Judge Kamini Lau drew attention to an outdated and barbaric practice that continues to be used in rape cases while collecting forensic evidence. Rather than help the survivor, this particular test, called the “finger test” or the Per Vagina (PV) test, traumatises the survivor and gives the defence in such cases a stick with which to intimidate and demoralise her in court.When a woman reports rape, she has to go to the police who then send her to a government hospital for a medical examination. The report by the doctor who conducts this test is supposed to be part of the medico-legal evidence that the prosecution presents in a rape case. Yet, although such a test has long been discarded elsewhere, in India doctors are trained to test whether the rape survivor is “habituated to sexual intercourse” by inserting two fingers inside her vagina. Why is this of any relevance to a case where the facts of rape and sexual assault are being determined? Does this mean married women cannot be raped? Does it mean an unmarried woman who has had sex cannot be raped? What does this absurd test actually establish when the woman’s character, or sexual habits, are of no consequence in the matter before the court?
It is heartening to read of at least one judge who was incensed enough to speak out against this test. Judge Lau said, “The test is violative of the fundamental right to privacy of the victim.” She went on to say, “State action cannot be a threat to the constitutional right of an individual. What has shocked my conscience is that this test is being carried out in a routine manner on victims of sexual offences (even minors) by doctors.”
The judge recommended that police officers be sensitised to this issue. But as much as police officers, doctors also need to be taught a survivor’s rights and informed that such a test is simply not allowed. According to a recent report by Human Rights Watch titled, “Dignity on Trial: India’s Need for Sound Standards for Conducting and Interpreting Forensic Examinations of Rape Survivors”, the “finger test” remains standard practice in many parts of India including Mumbai and Delhi. In fact, in Mumbai, three leading government hospitals, where hundreds of rape survivors are examined each year, still use this test. The HRW report also reveals that outdated medical textbooks recommending this test are still being used. As a result, each succeeding generation of doctors continue to follow the practice without thinking twice about its relevance or the trauma they are causing the rape survivor.
Worse still, because the practice continues, many survivors lose their cases in court because they get demoralised, confused or intimidated when sections from the medical report relating to this test are used by the defence to undermine their testimony. Yet, the survivor’s testimony is supposed to be enough in a rape case and the forensic evidence is only secondary. This is especially so because survivors often wait before they go to the police and as a result valuable evidence is lost. As a result, several court rulings have emphasised that delay in filing a complaint should not be held against the survivor. Judge Kamini Lau has drawn attention to an extremely important aspect of the procedures followed in rape cases. Unless something like this is addressed urgently, convictions in rape cases, already abysmally low, will never improve. And women who are sexually assaulted will continue to hesitate before turning to the law.
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- Doctors Finger Indian Rape Survivors to Judge Sexual History (womensrights.change.org)
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- Convicted sex offender sentenced to life for 2 rapes (seattletimes.nwsource.com)
- It’s time we recognised the needs of women seeking asylum (liberalconspiracy.org)
The Supreme Court has slammed the Government for clubbing housewives with prostitutes, beggars and prisoners in the Census and describing them as economically non-productive workers. The court described as “totally insensitive” and “callous” the approach of the statutory authorities in equating women, who are homemakers, with such segments, saying it was indicative of a strong gender bias against women. The court asked the Parliament to revisit the Motor Vehicle Act to ensure that whenever a housewife dies, suitable compensation is awarded to the family members, to avoid gender bias.
In separate but concurrent judgements, the Bench also suggested amendments to the Matrimonial Laws to give the women their due status in the society. “This bias is shockingly prevalent in the work of Census. In the Census of 2001 it appears that those who are doing household duties like cooking, cleaning of utensils, looking after children, fetching water, collecting firewood have been categorized as non-workers and equated with beggars, prostitutes and prisoners who, according to the Census, are not engaged in economically productive work. “As a result of such categorization about 36 crores (367 million) women in India have been classified in the Census of India, 2001 as non-workers and placed in the category of beggars, prostitutes and prisoners,” the apex court observed.
A Bench of Justices G.S. Singhvi and A.K. Ganguly upheld the appeal of an aggrieved husband Arun Kumar Aggarwal challenging the meagre compensation awarded by the Motor Accidents Tribunal and the Allahabad High Court, for the death of his wife Renu in a road accident. Though under the Motor Vehicles Act’s structured formula, the family was entitled to a compensation of Rs. 6 lakh, the Tribunal reduced the compensation to just Rs. 2.5 lakh on the ground that Renu was only a housewife and hence the “loss of dependency” did not deserve such a high amount. The Tribunal passed the order despite the plea of the husband that his wife was engaged in part-time painting and earning Rs 50,000 per month and the family had suffered immense loss of emotional support, love and affection of the deceased.
The High Court concurred with the Tribunal’s findings, upon which the husband appealed in the apex court. Disagreeing with the two courts’ view, the Bench said, “the gratuitous services rendered by wife with true love and affection to the children and her husband and managing the household affairs cannot be equated with the services rendered by others.“A wife/mother does not work by the clock. She is in constant attendance of the family throughout the day and night unless she is employed and is required to attend the employer’s work for particular hours. She takes care of all the requirements of husband and children including cooking of food, washing of clothes, etc. She teaches small children and provides invaluable guidance to them for their future life,” the apex court said.
V VENKATESAN IN THE FRONTLINE
The Delhi High Court grants women in the armed forces the right to permanent commission, so far denied on flimsy grounds.
On March 12, hot on the heels of the vote in the Rajya Sabha on the Women’s Reservation Bill, Justice Sanjay Kishan Kaul of the Delhi High Court delivered a landmark judgment upholding the right of women in the armed forces to gender equality. Although the proximity of the two events was a coincidence, the underlying principles cited by Justice Kaul appear to be relevant even in the discourse on the Women’s Reservation Bill, which aims to take representation a step closer to gender equality. These were rights to substantive equality, and against discrimination on the basis of sex, guaranteed by the Constitution. Paradoxically, while the United Progressive Alliance (UPA) government at the Centre is the proponent of the Bill in Parliament, in the Delhi High Court, it sought to resist the aspirations of women in the armed forces for gender equality, ignoring international trends that favour such equality. The official website of the Indian Army says that the Indian Army also has women officers. The use of the word “also” here may suggest the Army’s commitment to gender equality, but in reality it is a qualified commitment. “You can take up the challenge of Short Service Commission and prove to the world when it comes to courage and leadership, you’re second to none,” the Army tells women on its website. In practice, however, professionally successful women in the Indian Army and the Indian Air Force (IAF) always found themselves passed over when it came to promotion to permanent commission.
Those inducted on a short service commission have the option of joining the Army and serving as a commissioned officer for 10 years. At the end of this period they have two options: either elect for a permanent commission or opt out. Those not selected for permanent commission have the option of a four-year extension. They can resign at any time during this period. A short service commission, according to the Indian Army, empowers one with analytical thinking, planning skills, administrative and organisational abilities – qualities that will make the person an invaluable asset for any organisation that he or she joins after leaving the Army. A permanent commission means a career in the Army until one retires.
Justice Kaul notes in his judgment that there has been induction of women in only certain areas of the armed forces, and that too for short service commission. The government is stated to have carried out studies for the grant of permanent commission to women, but it has not so far considered the option favourably. In the case before the Delhi High Court, women officers who were granted short service commission in the IAF and Army and who sought permanent commission challenged the government’s refusal to consider them for permanent commission. These officers have had long stints with short service commission, extended from time to time to as much as 14 years. The consequence of not being granted permanent commission was that they were deprived of certain benefits and privileges such as pension, “ex-serviceman” status and medical facilities.
However, after the aggrieved women officers filed petitions in the High Court, the Central government, in 2008, decided to sanction the offer of permanent commission prospectively to women officers in the Judge Advocate General’s (JAG) Department at the Army Headquarters in New Delhi, the Army Education Corps (AEC) and the corresponding branches/cadre in Navy and Air Force, the Accounts Branch of the Air Force and Naval Constructor of the Navy, in addition to the current provisions of grant of permanent commission to male officers with short service commission.
The High Court considered this step as a progressive one, but decided to examine why women personnel who were still in service could not get the benefit of the change of policy. Also, the women officers who had approached the court by filing petitions but retired during the pendency of their petitions sought relief.
Indeed, the IAF had initially granted short service commission for women officers for a period of five years, but at the end of that tenure, it promised to offer permanent commission to the willing officers, subject to their suitability. The Air Force had promised in its advertisement for recruitment in 1991 that women officers who were unwilling to serve with permanent commission could be granted extension of the short service commission for six years on making a request for such an extension. Women officers with short service commission received training for a period of one year along with male permanent commission officers in the same classroom with the same tests, and both sets of officers passed out together. Insofar as the male short service commission officers are concerned, the training period was only for three months.
The simultaneous training of women short service commission officers and the male permanent commission officers was envisaged on the understanding that the women officers, if they were willing, were entitled to be absorbed with permanent commission subject to their fitness. Ten batches of male short service commission officers who had undergone training of only three months were granted permanent commission in the same period, whereas women short service commission officers continued to work in that capacity. The petitioners stated that they applied for permanent commission but received only an extension of the short service commission.
Change in policy
Meanwhile, on May 25, 2006, the government changed its policy with regard to the question whether short service commission officers, male or female, should be granted permanent commission. The IAF concluded that it was, therefore, not required to grant permanent commission to short service commission officers, male or female, under the revised policy. The petitioners contended that they had been recruited before this change of policy and that they were entitled to permanent commission as per the original policy. The Central government, on the contrary, maintained that absorption under permanent commission was as per service exigency and that it was a policy matter in which the court could not intervene.
The petitioners from the Army did not seek induction into combat, which is a policy matter. However, in certain fields where women officers had been inducted into short service commission and their performance had been found up to the mark, denying them permanent commission was unjustified, they pointed out. There is some difference in the training period of male and female officers with short service commission; it is nine months for the former and six months for the latter. However, the classes are common for both and the syllabus is the same, and both male and female officers perform exactly the same kind of duties.
The Central government advanced the plea of shorter training period for women officers with short service commission as grounds for not granting them permanent commission. The government also pleaded that if permanent commission was granted to women officers, they would be at risk of coming in contact with the enemy. The High Court rejected this plea since the women officers would not be inducted into combat roles.
The High Court found merit in the argument of the petitioners that their plea for permanent commission was based on the principle of legitimate expectation. The petitioners said that if the short service commission candidates were found fit and if their short service commission tenure was extended despite their request for permanent commission, they expected that such extension would be converted into permanent commission in accordance with the initial terms and conditions of appointment.
A legitimate expectation of a benefit, relief or remedy is not a legal right but ordinarily flows from a promise or established practice. It is grounded in the rule of law as requiring regularity, predictability and certainty in the government’s dealings with the public. The Central government argued that there could be no legitimate expectation since the women officers knew that their induction into the IAF was on an experimental basis for five years, to be reviewed thereafter. The court, however, pointed out that the women officers were both suitable and required. The High Court recognised the fact that recruitment of women in the armed forces had gone through a process of evolution largely dependent on the social norms of the country. In the United States, the strength of women officers in the military rose from 2 per cent in 1967 to 11 per cent in 1993. Almost 90 per cent of the posts have slowly become open to women officers except in the field of infantry, armour and special operations. The judgment noted that in India, there is reluctance on the part of the armed forces to induct women as permanent commission officers.
While noting that there are countries that have given opportunities to women even in combat areas, the court conceded that social and cultural ethos vary from country to country. Therefore, it is not for the court to decide in which areas of operation women should be employed in the armed forces, Justice Kaul said.
The court also rejected the government’s contention that since these women officers accepted the extension of short service commission, they were precluded from raising the issue of grant of Permanent Commission later. The court said that in matters involving gender discrimination, a liberal view on the aspect of delay has to be taken. The High Court thus directed that the women officers of the IAF with short service commission who had opted for permanent commission, and those of the Army, are entitled to permanent commission on a par with male officers with short service commission with all consequential benefits.
Justice Kaul expressed the hope that with increased participation of women in different walks of life, the Central government would be encouraged to allow greater participation of women in more areas of operation.