I.BRIEF BACKGROUND AND CONSTRUCT

Amidst the global COVID-19 epidemic, whereby the Ministry of Home Affairs ("MHA") has issued orders[2] prescribing lockdown measures in all parts of the country, there have been several concerns about the applicability, implementation and for that matter, the adjudication of sexual harassment cases.

At present, the sexual harassment at workplace is primarily governed by The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 ("POSH Act") which is a women specific legislation enacted to protect only women from sexual harassment at workplace. The POSH Act adopts a myopic view, in as much as, it does not provide protection from, or address thereto, sexual harassment at workplace which may be faced by genders, other than females in India.

This article traces India's response to gender neutral laws; attempts to characterise sexual harassment at workplace as a violation of human and constitutional rights; assesses and criticises the idea of gender specificity in sexual harassment laws in India that reinforce a binary notion of gender and results in gross under inclusion.

The present article asserts that the existing sexual harassment laws at workplace in India ought to provide adequate and sufficient protection to males and non-binary genders as well.

II.CONTEXTUAL BACKDROP OF THE POSH ACT

Reportedly, in December 2012, the Women and Child Development minister, Krishna Tirath had announced that the government will conduct a study on

"what kind of (sexual) harassment of males is prevalent at workplaces" [3]

while addressing questions on the inclusion of males in the Sexual Harassment of Women at Workplace Bill, 2010.[4]

The Bill, however, read in the light of its Statement of Objects and Reasons, was clearly tabled with the legislative intent of enacting a legislation to provide for a safe working environment only for women. The Statement of Objects and Reasons, provided in the 239^th Parliamentary Standing Committee Report ("SCR") [5] states as under:

"Sexual harassment at a workplace is considered violation of women's right to
equality, life and liberty. It creates an insecure and hostile work environment,
which discourages women's participation in work, thereby adversely affecting
their social and economic empowerment and the goal of inclusive growth.

…It is, thus, proposed to enact a comprehensive legislation to provide for safe,
secure and enabling environment to every woman, irrespective of her age or
employment status (other than domestic worker working at home), free from all
forms of sexual harassment by fixing the responsibility on the employer as well
as the District Magistrate or Additional District Magistrate or the Collector or
Deputy Collector of every District in the State as a District Officer and laying
down a statutory redressal mechanism"[6]

(Emphasis Supplied)

Addressing the Issue of Gender Neutrality

While addressing the concerns pertaining to the POSH Act to include the cause of men within its fold; some of the major concerns which were expressed on the gender specific nature of the Bill were:

"-It is incorrect to presume that only women can be victims of sexual harassment.
Percentage of women workforce is gradually increasing and not all are at
subordinate levels

-The Ministry has no data to claim that sexual harassment is faced only by
women and that harassment of men cannot be put on the same footing character wise or incidence wise.

- Sexual harassment laws in most countries like Denmark, UK, Italy, Ireland,
Finland, France, Germany, Portugal, Spain, Netherlands etc. are gender-neutral."[7]

The SCR, however, justifies such non-inclusion by stating that it is the women who face disproportionately large brunt of this scourge and hence, a gender-specific legislation on sexual harassment at workplace needs to be considered an affirmative action under Article 15 of the Constitution of India 1950 ("Constitution"). The SCR further states that survey/studies need to be conducted and alternatively, an employer may be mandated to report cases/instances of male sexual harassment also in their report.

The reasoning provided by the SCR for identifying only women as victims of sexual harassment at workplace is unsound and implausible on broadly two grounds. Firstly, the discussion on the issue of Gender Neutrality in SCR is premised on an incorrect presumption that the very notion of gender neutrality only concerns and confines itself to the binary (male and female) genders, and not the non-binary genders (including transgenders).

Secondly, while it may be correct that the women have been disproportionately disadvantaged and faced sexual harassment, and therefore, an affirmative action under article 15 of the Constitution may be called for; the same cannot be a ground to deny protection to men and other non-binary genders from sexual harassment at workplace.

The POSH Act, however, despite there being SCR recommendations to have an enabling provision to look at cases of sexual harassment against men; excluded men and non-binary genders from its purview.[8]

III.India's response to Gender Neutrality

A. Tracing significant Developments

The issue of gender neutrality in rape law was first raised in the case of Sudesh Jhaku v. KC Jhaku,[9] Justice Jaspal Singh articulated his preference for the offence of rape to be redefined in gender neutral terms; by quoting from the article- 'Sexism in the Society and the Law'[10]:

"Men who are sexually assaulted shall have the same protection as female victims, and women who sexually assault men or other women should be liable for conviction as conventional rapists. Considering rape as a sexual assault rather than as a special crime against women might do much to place rape law in a healthier perspective and to reduce the mythical elements that have tended to make rape laws a means of reinforcing the status of women as sexual possessions"

(Emphasis Supplied)

Subsequently, the Criminal Law (Amendment) Bill, 2012[11] proposed a gender-neutral definition of rape, based on the recommendations of the 172^nd Law Commission Report.[12]

After the Nirbhaya gangrape incident, the Justice Verma Committee ("JVC") was constituted to look into possible amendments of the criminal law to provide quicker trial and enhanced punishments for criminals committing sexual assault of extreme nature against women.[13]

The JVC stated while the Sexual Harassment Bill purports to be in effectuation of the Supreme Court's dictum in Vishakha v. State of Rajasthan[14], the spirit of the judgment in Vishakha is not adequately reflected.[15] Although the JVC found the definition of sexual harassment under the Sexual Harassment of Women at Workplace Bill, 2012, as contained under Section 2(n), which only delineates sexual harassment against women to the exclusion of men and non-binary genders, to be satisfactory, the JVC recommended the offence of rape be made gender-neutral.

In May 2016, the University Grants Commission notified a set of regulations (Hereinafter referred to as the "UGC Sexual Harassment Regulations") which obligates the higher educational institutions to act decisively against all gender-based violence.[16]

"Regulation 3(1)(d) of the Regulation states:

3. Responsibilities of Higher Educational Institutions – (1) Every HEI shall

…(d) act decisively against all gender based violence perpetrated against employees and students of all sexes recognising that primarily women employees and students and some male students and students of the third gender are vulnerable to many forms of sexual harassment and humiliation and exploitation"

(Emphasis Supplied)

In contradistinction to the POSH Act which enables only an "aggrieved woman" to file a complaint of sexual harassment, under the UGC Sexual Harassment Regulations, any "aggrieved person" may make a complaint of sexual harassment.[17] Therefore, the UGC Sexual Harassment Regulations enable students of all genders, including males and transgenders, to file complaints of sexual harassment.

In 2018, two Petitions were filed in the Supreme Court asserting that the laws in relation to sexual harassment ought to be neutralised irrespective of gender, challenging the constitutionality of Section 354, 354A, 354B, 354C, 354D and 375 of the Indian Penal Code, 1860. However, the same were not entertained.[18]

The Delhi High Court dismissed a petition, after issuing notice in the same, whereby it was prayed that Sections 375, 376, 376D, 354A, 354C, 354D violated basic human rights and denied the people gender neutral laws, thus making them ultra vires Article 20(1), 14 and 21 of the Constitution. The Court however, reasoned that the Union of India had already considered the Law Commission report and a decision had been taken to not amend the sections and thus, there was no reason to entertain the petition.[19]

B. Lack of Statistics of Male Harassment and the Gender based Stereotypes

As per the study conducted by the Centre for Civil Society in 2013, out of the 96 countries studied, 63 were found to have rape or sexual assault laws written in gender neutral language and 6 had partly gender-neutral laws.[20]

The Delhi-based Centre for Civil Society found that approximately 18% of Indian adult men surveyed reported being coerced or forced to have sex. Of those, 16% claimed a female perpetrator and 2% claimed a male perpetrator.[21]

A gender specific definition of sexual harassment based on the male or female paradigm not only associates the victim and perpetrator with a specific gender, but also the various stereotypes associates with it. There are several theories of gender which further the idea that gender and sex are fixed notions that are inherently linked: men are or should be masculine and women are or should be feminine.[22]

Accordingly, gender neutrality may allow us to abrogate sex stereotypes, and move beyond an understanding of men as the natural aggressors and women as the perennial victims.[23]

Secondly, the mere non-availability of the statistical information does not lead to a conclusion that such instances do not occur.[24] The absence of any official statistics may be attributable to the hegemonic masculinity coupled with the fact that the POSH Act is not gender neutral.

In a rather interesting reasoning rendered by the Court of Appeals of New York in People v. Liberta, it was stated:

"while forcible sexual assaults by females upon males are undoubtedly less common than those by males upon females this numerical disparity cannot by itself make while forcible sexual assaults by females upon males are undoubtedly less common than those by males upon females this numerical disparity cannot by itself make it permissible for the state to punish only men who commit, for example, robbery."[25]

(Emphasis Supplied)

C. Transgender Rights

Transgender ("TG") is generally described as an umbrella term for persons whose gender identity, gender expression or behaviour does not conform to their biological sex. TG may also take in persons who do not identify with their sex assigned at birth, which include hijras/eunuchs who describe themselves as "third gender" and they do not identify as either male or female. Among hijras, there are emasculated (castrated, nirvana) men, non-emasculated men (not castrated/akva/akka) and inter-sexed persons (hermaphrodites). TG also includes persons who intend to undergo Sex Re-Assignment Surgery ("SRS") or have undergone SRS to align their biological sex with their gender identity in order to become male or female. They are generally called transsexual persons. Further, there are persons who like to cross-dress in clothing of opposite gender, i.e. transvestites. Resultantly, the term "transgender", in contemporary usage, has become an umbrella term that is used to describe a wide range of identities and experiences, including but not limited to pre-operative, post-operative and non-operative transsexual people, who strongly identify with the gender opposite to their biological sex; male and female. [26]

The Supreme Court in NLSA[27], upholding the rights of transgender/third gender persons, laid down the dictum that Articles 14, 15,16,19 and 21 do not exclude hijras/transgenders from their ambit. It was also stated that the Indian law on the whole recognises the paradigm of binary genders of male and female, based on a person's sex assigned by birth. Binary notion of gender also reflects in the law relating to marriage, adoption, divorce, inheritance, succession, and other welfare legislations. Non-recognition of the identity of hijras/transgenders in the various legislations denies them equal protection of law and they face widespread discrimination.[28]

It was therefore, concluded that:

"discrimination on the basis of sexual orientation or gender identity includes any discrimination, exclusion, restriction or preference, which has the effect of nullifying or transposing equality by the law or the equal protection of laws guaranteed under our Constitution, and hence we are inclined to give various directions to safeguard the constitutional rights of the members of the TG community."

(Emphasis Supplied)

The Apex Court, in fact, deliberated upon the right of legal recognition of the third gender identity, asserting that gender identity is integral to the dignity of an individual and is at the core of "personal autonomy" and "self-determination". Hijras/eunuchs, therefore, would have to be considered as the third gender, over and above binary genders under the Constitution and the laws.[29]

Amidst much persistence by the Transgender community the Transgender Persons (Protection of Rights) Act, 2019 (Hereinafter referred to as the "TG Act") was enacted on 05.12.2019.

Recently, the Ministry of Social Justice and Empowerment had published the draft Transgender Persons (Protection of Rights) Rules, 2020 (Hereinafter referred to "Draft Rules").[30]

Protection accorded under the TG Act and measures to be undertaken by the government

As per the TG Act, the "'transgender person' means a person whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-woman (whether or not such person has undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such other therapy), person with intersex variations, genderqueer and person having such socio-cultural identities as kinner, hijra, aravani and jogta".[31]

A person recognised as a transgender shall have a right to self-perceived gender identity.[32] The District Magistrate shall issue to the applicant who may make an application in this regard, a certificate of identity as a transgender person.[33] Such a certificate shall be entered in all official documents, confer rights to the concerned person and be a proof of recognition of the person's identity as a transgender person.[34]

It may be interesting to note in this regard that the European Commission broadly defines the genders into two kinds: Binary and Non-Binary. The Non-Binary gender is defined as an umbrella term for gender identities that fall outside the gender binary of male or female. This includes individuals whose gender identity is neither exclusively male nor female, a combination of male and female or between or beyond genders. Similar to the usage of trans, people under the non-binary umbrella may describe themselves using one or more of a wide variety of terms.[35] Austria, Germany and Malta have recently introduced a third gender option.[36]

The TG Act prohibits discrimination against a transgender person on the ground of:

"(a) the denial, or discontinuation of, or unfair treatment in, educational
establishments and services thereof;

(b) the unfair treatment in, or in relation to, employment or occupation;

(c) the denial of, or termination from, employment or occupation"[37]

The TG Act also mandates that no establishment shall discriminate against any transgender person in any matter relating to the employment including, but not limited to, recruitment, promotion and other related issues; as also that every establishment shall ensure compliance with the provisions of the TG Act and provide facilities to the Transgender persons.[38]

Even the Draft Rules vide Rule 10 state as under:

"(3) appropriate government shall review Acts, rules, regulations, codes, bye-laws and such statutes to obviate discrimination of any kind to the Transgender persons and to promote their well-being and dignity

(4) The appropriate government shall also take adequate steps to prohibit discrimination in any government or private organisation or establishment.

(6) The appropriate government shall also take adequate steps to prohibit discrimination in any Government or private organisation or establishment."

(Emphasis Supplied)

Whoever harms or injures or endangers the life, health or well-being, whether mental or physical, of a transgender person or tends to do acts including causing physical abuse, sexual abuse, verbal & emotional abuse and economic abuse, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years with fine.[39]

In view of the above, the existing POSH Act ought to be reviewed/ amended to extend protection to transgenders.

D. Characterising Sexual Harassment: Inclusion of LGBQA+

The Sexual harassment laws in India, although prohibit sexual harassment against the female gender, fail to expressly acknowledge cases of sexual harassment appertaining to the Gay, Bisexual, Queer, Asexual and such other allied individuals who may not identify themselves as heterosexuals.

It is interesting to note that the Supreme Court has observed in Hiral P. Harsora v. Kusum Narottamdas Harsora[40], that while the objective sought to be achieved by the statute is to protect women in various spheres of life, the term "Respondent" has been defined under Section 2(m) of the POSH Act to include all genders. Therefore, the perpetrator of the sexual harassment may be male or female under the POSH Act and resultantly, the POSH Act may also be seen to redress the cases of sexual harassment by a woman against woman and to that extent, it may be said to address the issue of sexual harassment of the individuals who identify as lesbians.

The Supreme Court, while partially striking down Section 377 of the Indian Penal Code, 1860 ("IPC") as being violative of Article 14 of the Constitution, expressly recognised the rights of individuals identifying themselves as Lesbians, Gay, Bisexuals, Transgenders, Queer, Intersex, Asexual and allied individuals, other than heterosexuals. While opining on the right of such individuals to engage in such consensual sexual activity, it also stated that such rights flow from the Constitution and therefore, Section 377 of the IPC should not be used as a tool for harassment of such individuals:

250. We must realize that different hues and colours together make the painting of humanity beautiful and this beauty is the essence of humanity. We need to respect the strength of our diversity so as to sustain our unity as a cohesive unit of free citizens by fostering tolerance and respect for each other's rights thereby progressing towards harmonious and peaceful co-existence in the supreme bond of humanity. Attitudes and mentality have to change to accept the distinct identity of individuals and respect them for who they are rather than compelling them to 'become' who they are not. All human beings possess the equal right to be themselves instead of transitioning or conditioning themselves as per the perceived dogmatic notions of a group of people. To change the societal bias and root out the weed, it is the foremost duty of each one of us to "stand up and speak up" against the slightest form of discrimination against transgenders that we come across. Let us move from darkness to light, from bigotry to tolerance and from the winter of mere survival to the spring of life -- as the herald of a New India -- to a more inclusive society.

251… It is their momentous "walk to freedom" and journey to a constitutional ethos of dignity, equality and liberty and this freedom can only be fulfilled in its truest sense when each of us realize that the LGBT community possess equal rights as any other citizen in the country under the magnificent charter of rights - our Constitution.

252. Thus analysed, Section 377 Indian Penal Code, so far as it penalizes any consensual sexual activity between two adults, be it homosexuals (man and a man), heterosexuals (man and a woman) and lesbians (woman and a woman), cannot be regarded as constitutional.

(Emphasis Supplied)

It is asserted that given that the adequate protections and safeguards of the individuals identifying themselves as Gay, Bisexual, Queer, Asexual and such other allied individuals, which emanate from the Constitution have been espoused by the Supreme Court; sexual harassment laws ought to prohibit and provide an appropriate mechanism for redressal, of sexual harassment, qua such persons.

IV.SUMMING UP THE ANALYSIS AND CONCLUDING REMARKS

Given the judicial precedents and constitutional safeguards provided, it is asserted that the rights of the genders, other than females, qua the prevention, prohibition and redressal against sexual harassment at workplace emanate from Articles 14, 15,16,19 and 21 of the Constitution.

Even while public awareness is slowly improving, India has to a large extent been unsuccessful in counteracting the cases of sexual harassment against the individuals who identify themselves as Gay, Bisexuals, Transgenders, Queer, Intersex, Asexual and allied individuals, other than heterosexuals, who continue to disproportionately face discrimination.

The enactment of the UGC Sexual Harassment Regulations seems to be a positive step in promoting gender neutral sexual harassment laws. In the light of the spirit and intent of the UGC Sexual Harassment Regulations, which recognise that employees and students of all sexes, including male students and students of third gender are vulnerable to many forms of sexual harassment and humiliation and exploitation; it is deemed expedient that the POSH Act ought to be suitably amended or alternatively appropriate legislations may be enacted, to provide for the prevention, prohibition and redressal against sexual harassment at workplace in a gender-neutral manner.

Be that as it may, in the interim the entities/organisations at their individual levels may implement gender neutral policies and code of conduct, to ensure diversity and inclusion and promote sensitisation.[41]