Victim Of The Victims The Forgotten Gender

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This Article has been prepared by Knowledgentia Consultants regarding Sexual harassment of Women at workplace. Visit:


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VICTIM OF THE VICTIMS: THE FORGOTTEN GENDER Aparna Jain Harinder Narvan and Prashant Singh  SEXUAL HARASSMENT OF WOMEN AT WORKPLACE PREVENTION PROHIBITION AND REDRESSAL ACT 2013 was the result of an endeavor to strengthen the rights of women which would lead to their emancipation from the victimization due to the deep rooted orthodox views of the Indian society which considers them as the inferior sex. But from a diverse outlook it appears that this act has actually reinforced the views of the Indian society instead of curbing them or changing them per se. This statute is based on the premise that women are the weaker sex and this essentially fuels the pre- conceived notions even further instead of redressing them. But before going further let us understand what would be deemed as Sexual Harassment. Any behavior with a sexual inference that is abusive injurious and unwelcome would come within the ambit of the definition of Sexual Harassment. In India there was no statutory definition of sexual harassment till 1997. The Hon’ble Supreme Court took initiative to define it in a formal legal manner in a Public Interest Litigation case titled as Visakha v. State of Rajasthan 1 . This affirmative action on part of SC was lauded by the society but there is another side to the conundrum which needs to be heard and evaluated on its merits. There is no denial of the factum that in the recent years there has been a considerable surge in crimes against women. Therefore the efforts of the courts and legislation can be said to be plausible to a certain extent. But the present piece of legislation rather seems to be a knee jerk reaction rather than a well thought approach to address the issue as a whole. Now this may seem rather harsh to the advocates of women rights but it is the truth. The term ‘Sexual Harassment’ has been by default made synonymous with ‘Sexual Harassment of Women’. The sexual or mental harassment of men remains a hush affair in our country. It is considered to be a taboo to raise any voice for this cause as the collective psyche of the country suggests that males are strong and any claims which are in the nature of harassment goes against this pivotal ideology. A glance at the legal framework of our country makes it clear that this issue is completely neglected with regards to male folks in the society. This void in the legal framework renders men prone to harassment. And there is always a possibility of abuse and misuse of power maliciously because of the manner in which the act has been constituted. However there is one provision in this act which tries to diminish the possibility of misuse or abuse and has been vehemently opposed by woman groups and was criticized by the Verma Committee Report as a “red tag” provision. SECTION 14 of this statute provides for punishment for filing false or malicious complaints leading false evidence or producing false documents. The opposition of the same provision by woman groups is just incomprehensible. The opposition needs to realize that law works on the principle of checks and balances therefore when a woman has a certain right there needs to be a provision which checks its misuse and acts as a deterrent against any sort of abuse of the power. The provision is the only safeguard for men whose reputation is tarnished by allegations under this Act. Thus law should be strict for enforcement against fallacious complaints. The other problem which remains is the refusal on part of the Indian society to acknowledge the problem. The hardest thing to explain is the glaringly evident which everyone has decided not to see and the issue of Sexual Harassment of men or misuse of sexual harassment laws remains one of those. The society as a whole tends to turn a blind eye towards this issue. While trying to gain an understanding of the act at hand it is an imperative to analyze the laws prior to this statute which were women centric essentially. The most crucial example remains Sec. 497 of the Indian Penal Code 1860. Section 497 talks about the offence of the adultery. The main feature of this  For Knowledgentia Consultants E - 71 L.G.F. Greater Kailash - I New Delhi - 110048 1 1997 6 SCC 241 AIR 1997 SC 3011

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offence is that the male offender alone has been made punishable. Adultery is an offence committed by a third person against a husband in respect of his wife. A question was raised in case of Abdul Ajij v. State of Bombay 1954 regarding the constitutionality of this offence as it seemed to be in violation of Right to equality. But the court categorically denied any violation and stated that Art. 15 3 allows the state to make laws in the interest of women and children. The other glaring example is that of 498 A Husband or Relatives of husband of a woman subjecting her to cruelty of Indian Penal Code1860. The fact that 498 A is cognizable and non- bailable offence has lent it a dubious place of pride among provisions that are used as weapons than shields by disgruntled wives. This has led to a systematic abuse of men because of the laws which are being made to protect the women. “Merely because the provision has been deemed constitutional does not gives license to unscrupulous persons to wreck personal vendetta or unleash harassment. By misuse of the provision a new legal terrorism can be unleashed. The provision is to be used as a shield and not as an assassin’s weapon. If cry of the wolf is made too often as a prank assistance and protection may not be available when actual wolf appears”. This was the statement which was given by the highest court of the country in case of Sushil Kumar v. Union of India 2 . Overtime 498 A of IPC and Section 125 A of Cr.P.C have turned into a weapon of extortion and has added to the miseries of many families. Just on the basis of complainant’s testimony entire cases are built and people have to go through the ignominy but if that case has been filed with wrong motives than the perpetrator/complainant should also be punished in a deterrent manner. The investigating agencies and the courts start with the presumption that the accused persons are guilty and that the complainant is speaking the truth. This is such a wide and generalized presumption adversely affecting the accused. It should be their effort to see that an innocent person is not made to suffer on account of unfounded baseless and malicious allegations. It is the duty of the judiciary or legislation to ensure that provisions are not being misused. Criminal Justice System should not be swayed by emotions or pressure. But before contemplating further on this issue a caveat needs to be inserted here. These laws are necessary to tackle with issues of serious graveness but the contention which is being made is not to find an alternative to these laws but to find alternatives within these laws so that the grave misuse is under check and men are included in the system as possible victims instead of always being assumed as perpetrators. Blanket reforms have been used to tackle issue of sexual harassment in our country. In a recent case in 2015 Loha vs The District Educational Officer it was observed Now-a-days filing cases under the Domestic Violence Act by female members has become a common one and a neutral and unprejudiced law is needed to protect the genuine victims of domestic violence irrespective of gender. It is no doubt true that the perpetrators of domestic violence need to be appropriately punished and dealt with but at the same time protection cannot be withheld from real victims for any reason whatsoever least of all their gender. One can be certain that there is something sinister about a law when it intimidates and instills fear in innocent people. When a person who has not committed any crime begins to fear punishment under the provisions of a law it will certainly create panic amidst male genders. The notable flaw in this law is that it lends itself to such easy misuse that women will find it hard to resist the temptation to teach a lesson to their male relatives and will file frivolous and false cases. A similar trend is already being observed in the case of anti-dowry law 498-A which is being misused to such an extent that the Supreme Court has termed it as legal Terrorism. In December 2012 a judicial committee was set up to study and take public suggestions for the best ways to amend laws to provide quicker investigation and prosecution of sex offenders. After considering about 80000 suggestions the committee submitted a report which indicated that failures on the part of the government and police were the root cause behind crimes against women. On 3 February 2013 the Criminal Law Amendment Ordinance 2013 was promulgated by President Pranab Mukherjee. It provided for amendment of the Indian Penal Code Indian Evidence Act and Code of Criminal Procedure 1973 on laws related to sexual offences. This was seen as a quantum leap by women activists to strengthen women rights. But there is another question which needs to be asked. Nevertheless it’s an uncomfortable and possibly a controversial question to put up and may end up offending a huge section of the society. The question being ‘Whether the steps which were taken were the result of an objective 2 JT 2005 6 SC 266

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analysis of the issue or it was an emotional response triggered by the pressure and situation surrounding the issue of a heinous crime’. Objectivity is of utmost importance in law. There is no place for emotions in law as the bedrock of law is reason which is diametrically opposed to anything which is emotional in nature. The scenario has changed a lot after that. But one of the most disturbing statistics suggest that the acquittal rate for domestic violence or sexual assault cases was around 46 in 2012 but it has gone up to 75 in 2013. This is a huge and grave injustice to men who have to suffer because of these draconian measures. Maybe the legal system or legislators decided to abandon their objective position and decided to rely on emotions but if that’s the case then most certainly this heart rending plea of men must have had a certain effect. The statutory provisions on domestic violence sexual assaults sexual harassment etc. are gender neutral across the world but that is not the case in India. There are commissions for women children and animals but there is no government organization for men. Furthermore gender biased sexual harassment laws lead to indifference on part of men. When man has been deemed as a potential perpetrator by the legal system this incites indifference instead of empathy on their part. It is also true that the cases of abuse of these laws are lesser and that the cases of sexual harassment are relatively less with respect to men. But that does not give the authority to the government to completely ignore the minority. The principle of greater good for greater number has been used to make these laws which are completely ridiculous in nature. So the way ahead if we want these laws to work and to address all the grave concerns for men as well would be to come up with a set of gender neutral laws. There should be strong misuse clauses under all the laws which give this right to women and the idea of jail term for false cases needs to be entertained as well so that the rights of a gender are not forgotten and ignored. The laws till now have been a farrago of distortions based on ill found assumptions and if there has to be any progressive action a change is a must. Thus in the today’s growing dynamism in a society where there is a manifold increase of work force for both male as well as female genders it is imperative that dignity self-respect and self-esteem of co- workers associates colleagues is duly respected. The harmonious environment in a workplace can be ensured only with mutual co-operation understanding and respect. Although this legislation is prima facie in contradistinction to the right enshrined under Article 15 of the Constitution which bars discrimination on the basis of gender steps should be taken by us i.e. society as a whole to ensure that this Act is not misused. Further in the coming years we should also promote the idea of making it a neutral act so as to give protection to both genders.

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