At a time when Mamta Sharma, chairperson of the National Commission for Women (NCW), is facing flak for saying that “sexy” is a compliment and not sexual harassment, the Madras High Court has ruled that calling a woman a bitch falls within the ambit of sexual harassment. The high court ruling is based on the Vishakha guidelines framed by the Supreme Court of India in 1997.
When the influential men who gang raped Banwari Devi, a social worker in Rajasthan, were acquitted by the trial court, several women’s groups and non-governmental organisations (NGOs) filed a petition in the apex court demanding justice and urging action against sexual harassment at the workplace (Vishakha and Others vs State of Rajasthan). The Supreme Court had then defined sexual harassment as any unwelcome gesture, behaviour, words or advances that are sexual in nature.
The contradictory statements of the NWC and the high court have added to the debate that a fresh look needs to be taken at certain rules and directives related to sexual harassment.
For instance, Calcutta’s Rehan Imam Waris, owner of Voiceworx Events and Workshops, reacts quite strongly to the Madras High Court judgement. “The slang ‘bitch’ is a sexist comment. Certainly it’s an abuse, when you hurl it at a colleague,” he says. “But sexual harassment? I can only laugh.”
Waris is not the only one. A.W. Abdulkany commented on the Internet, “The term bitch refers to a female dog; it appears to be a cultural term used to refer to the human female in a most degrading, humiliating and disgraceful manner. In some parts of the world a man is referred to as ‘son of a bitch’ to humiliate him. What action can one take if a woman calls a man a ‘son of a bitch’?”
Simrana Fatima, 25, asks, “Will a woman calling a woman colleague a ‘bitch’ amount to sexual harassment too?”
Despite the young from big cities expressing discontent, most lawyers think the ruling is justified. “It’s nice to see a judge who can communicate the spirit of the law with such practical and realistic ease,” says Naina Kapur, the lead instructing counsel in the Vishakha case. “Justice Chandru of the Madras High Court effortlessly saw through the common ruses associated with those who still choose to defend unwelcome sexual behaviour, considering “bitch” somehow acceptable. Behaviour, which the rest of us, men and women, wouldn’t tolerate in our professional capacities,” she added. Delhi-based lawyer Colin Gonsalves echoes Kapur. “The very fact that people use this word so casually reveals the mindset and the fact that women are harassed frequently and in most cases it goes unnoticed.”
So does that mean the ruling isn’t as draconian as many people are making it out to be? Or is the legal fraternity going overboard to protect women’s interests? Novelist Shobhaa De says, “Perhaps the ruling is a little too old world for today’s far more relaxed and liberal times, but I strongly object to the ‘bitch’ put-down which is nasty and offensive. Let’s not provide alibis. A woman always knows when it is thrown at her in an abusive, hostile way. As for going overboard while protecting women’s rights, in reality we don’t go far enough. And that is the problem.”
And it’s not just De who differs from the common perception that most laws favour women.
“I think we should go overboard while framing laws that safeguard women’s interests because of the cultural, social, economic and political bias inbuilt in society. Drastic steps are needed to correct it,” says Supreme Court counsel Ragvesh Singh.
Many who do not agree with the judgement are not making an issue of it, keeping the greater interest in mind. “In a lot of industries this lingo is quite acceptable but that’s in the context of socially evolved cities such as Mumbai, Bangalore and Calcutta. But what about tier two and three cities? Male colleagues might actually call a woman a bitch to wilfully insult her. So in the larger interests of women, I agree with the high court ruling,” sums up Ritam Chakrabarty, brand communication professional at a media network.
As for many calling the ruling draconian, Saif Mahmood, Supreme Court advocate, says, “Well, I wouldn’t term it draconian. But yes, like other laws and rulings this too will be misused by some troublemakers.”
“There cannot be a single straightjacket definition of sexual harassment and, therefore, the issue of taking a ‘relook’ doesn’t arise. Sexual harassment has been and is a very relative term, varying from person to person, society to society and time to time. What one may consider objectionable may be a compliment for the other. Having said that, there have to be some minimal fundamentals that must be universally followed,” says Mahmood.
According to the guidelines framed by the apex court, physical contact, advances, demand or request for sexual favours; sexually coloured remarks; showing pornography; any other unwelcome physical, verbal or non-verbal conduct of sexual nature amounts to sexual harassment.
So what happens when a woman slaps a case of sexual harassment against her colleague? As per the guidelines, any conduct which amounts to a specific offence under the Indian Penal Code or under any other law, the concerned employer shall initiate appropriate action in accordance with the law by making a complaint with the appropriate authority. In particular, it should ensure that victims or witnesses are not victimised or discriminated. The victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer.
Incidentally, the Protection of Women against Sexual Harassment at Workplace Bill was tabled in the Lok Sabha in December 2010 and referred to the Parliamentary Standing Committee on Human Resources Development. The committee submitted its report on November 30, 2011, but the Bill is yet to be passed.
Though there is no law governing sexual harassment in the workplace, if the Madras High Court ruling is anything to go by, it is best to watch what you say in office.