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No sex please

By Gayatri Sharma

Sexual innuendo, unwelcome passes, sexually-coloured remarks and jokes are the target of sexual harassment policies in India. The implicit assumption is that sex is a bad thing that should be kept private as far as possible. Such an approach could in fact be producing a negative impact on the right to free expression by increasing restrictions on sexual expression

Outlook magazine recently reported a case of sexual harassment where Fantry Mei Jaswal, an officer of the central services, struggled to have her complaint against her former boss, Kailash Sethi, taken seriously.  The sexual harassment consisted of Sethi coming into her office from time to time for coffee and a chat, once entering the room in his shorts just after playing golf. On one occasion, she asked Sethi, “Is there anything else I can bring, sir?” regarding a brief, and he responded with, “Get your make-up kit along”. Jaswal felt “humiliated” after this incident, which led to the filing of a complaint of sexual harassment. 

Sexual innuendo, unwelcome passes, sexually-coloured remarks and jokes are the target of sexual harassment policies in India; the general attitude appears to be to adopt a ‘zero tolerance’ approach towards such behaviour. As a result, public expressions of sex or sexuality are being penalised. The implicit assumption is that sex is a bad thing that should be kept private as far as possible. The exception is when sexual wrongs occur, in which case it should be a matter of public concern.

Such an approach is producing a negative impact on the right to free expression, by increasing restrictions on sexual expression. The result is that the legal regulations harm more than they help, and produce a paradox where laws ostensibly enacted to benefit women are having an adverse impact on them.

Sexual harassment policies that are all-consuming are, in fact, resulting in what Janet Halley calls “sexuality harassment”.
 
In India there is so far no national legislation dealing with sexual harassment; thus the content of sexual harassment has been judicially constructed. The Supreme Court of India has, in various decisions, laid out what sexual harassment is. In Vishakha -- a landmark judgment delivered in August 1997 --the Supreme Court stated that every instance of sexual harassment is a violation of fundamental rights.  In a subsequent Supreme Court judgment (Apparel Export Promotion Council v Chopra), the definition of sexual harassment was expanded andit was held that: ‘any action or gesture which, whether directly or by implication, aims or has the tendency to outrage the modesty of a female employee, must fall under the general concept of the definition of sexual harassment’ (my emphasis).

Conservative notions of modesty and decency have become entangled with the definition of sexual harassment. Shame, humiliation and embarrassment are emotions expected from a woman who has been sexually harassed. More seriously, all women are expected to feel the same sense of outrage with regard to sexually-coloured behaviour.
  
Recently, in July 2005, the Supreme Court upheld the conviction of former DGP of Punjab, K P S Gill, for outraging the modesty of a woman IAS officer, Rupan Deol Bajaj. While the conviction is laudable, the observations made by the apex court, particularly with regard to a woman’s modesty, are not. Inthis case, the complainant was verbally assaulted at a dinner party and when she tried to leave, she was slapped by Gill on her posterior in front of all the other guests.  The matter reached the Supreme Court, where it was held that “…the ultimate test for ascertaining whether modesty has been outraged is if the action of the offender such as could be perceived as one which is capable of shocking the sense of decency of a woman…the alleged act of the respondent in slapping the appellant on her posterior amounted to ‘outraging of her modesty’ for it was not only an affront to the normal sense of feminine decency but also an affront to the dignity of the lady’ (my emphasis).

There is no denying that the conduct of K P S Gill in the circumstances was outrageous --an unwelcome sexual demand was made, resulting in a hostile environment. But the problem with the judgment is that it imposes attributes of feminine decency on all women. For example, there are some women who may pat friends or colleagues on the posterior and not consider it sexual harassment -- just a display of affection. A sexually-charged office/workplace is not detrimental to women’s interests -- it only becomes so if the sexual atmosphere discriminates. When sexual harassment gets disassociated from discrimination it becomes hostile to freedom of sexual expression and, in fact, detrimental to the feminist agenda. For example, Jane Gallop, a feminist professor, was accused by two students of sexual harassment. This was possible because, as she puts it: “…I sexualise the atmosphere in which I work. When sexual harassment is defined as the introduction of sex into professional relations, it becomes quite possible to be both a feminist and a sexual harasser.”

Dress codes for women in universities, company guidelines where consensual relationships need to be reported to the manager or director or where consensual relationships between co-workers are simply not allowed, or restrictions at women’s hostels on timings and male visitors simply control anything related to sex, and not sexual harassment.  In private companies, the fear of becoming entangled in sexual harassment cases where vast sums of money are involved leads to stringent company codes. Employers are duty bound to provide a safe environment, and if they fail to do so may end up having to face a suit for criminal liability. Therefore extreme steps are taken to keep the workplace sexually sanitised.

The issue of sexual harassment is particularly volatile in Delhi. In the case of Delhi University, sexual harassment is defined as follows:

‘Sexual harassment’ includes any unwelcome sexually determined behaviour, whether directly or by implication, and includes physical contact and advances, a demand or request for sexual favours, sexually-coloured remarks, showing pornography or any other unwelcome physical, verbal or non-verbal conduct of a sexual nature. 

Broadly put, any act that has a sexual overtone and causes discomfort (that is, if the behaviour is ‘unwelcome’) amounts to sexual harassment. This definition is similar to the definition provided by the Supreme Court in the Vishakha case.It is problematic because firstly, the term ‘unwelcome’ is ambiguous, and, secondly, the examples included make the definition way too bloated. The definition is capable of penalising students for behaviour that is not severe but merely offensive (for example, a sexist joke).

It is not easy to understand what exactly Delhi University’s intention was in drafting such an expansive definition. This definition is hardly likely to stop sexual interaction between students who want it and are confident of receiving approval when they express themselves in some sexual fashion. But the fear of being thought of as a sexual harasser may prevent certain other students or faculty members (in particular those who are thought to be unsophisticated or considered un-cool and are unsure of the reaction they will get) from interacting freely with women students. 

If a woman tries to prove the behaviour was unwelcome, she would also have to simultaneously prove herself to be chaste and absolutely unresponsive to any prior flirtatious or sexually determined behaviour.  Further, ‘sexually-coloured remarks’ cannot be avoided even though they are unwelcome. For example, a discussion in a feminist theory class on radical feminism will necessarily entail discussing issues of sexuality. Such discussions may make some students uncomfortable. But this does not mean that the aim of the university should be to protect young innocents from acquiring knowledge. That would, ironically, run counter to the purpose of a university.     

The debate about whether to sexually sterilise the workplace so as to make it safer for women is part of a larger debate between ‘power feminism’ and ‘victim feminism’. Victim feminism is stuck on representing all women as fragile victims of violence, which in turn invites a protectionist response from the state. The general idea is that women suffer violence, and it is the responsibility of the state to prevent it or to provide a remedy.  In the case of sexual harassment, the law is required to protect women; this increases the power of the state to regulate what should actually be a personal decision. Victim feminism reinforces the idea that all women suffer in the same manner.   

The ideology of victim feminism goes back to the initial example of the lady officer who felt humiliated when she was told to bring her make-up kit along to an official meeting. Even assuming that the complainant had reasonable grounds to feel humiliated, a demand for legal intervention in such a scenario would only lead to a ban on all conversations about sex or even remotely linked to sex between men and women. Legal intervention is justified under two conditions -- quid pro quo (when submission to unwelcome conduct is explicitly or implicitly made a condition or the basis for employment decisions) and, secondly, when a hostile environment, as determined by the reasonable perception of the complainant, is created. The law can then effectively emancipate women who face sexual harassment in the workplace.

Power feminism, on the other hand, explores the potential to increase women’s independent agency, and, with regard to sexual harassment, the law cannot be the main instrument in doing so. The law will only be able to regulate sexuality. This will deny women (and men) the right to self-representation of sexuality. Discussions related to sex and sexuality in India are primarily restricted to sexual violations such as rape, sexual harassment or health issues like AIDS and other STDs. Discussions on sexual rights -- for example, the right to deviate from socially acceptable sexual activity -- are not a pressing concern. A more effective, long-term solution is to provide the space to assert sexual rights and encourage healthy conversations about sexual issues.

(Gayatri Sharma is a lawyer and works as a researcher with the Centre for Feminist Legal Research (CFLR), New Delhi. Email: This email address is being protected from spambots. You need JavaScript enabled to view it.)

Endnotes

‘Babu Black Sheep’ Outlook, August 15, 2005
Halley, Janet ‘Sexuality Harassment’ in Left Legalism/Left Critique edited by Wendt Brown and Janet Halley, Duke University Press, USA, 2002
Vishakha and Others v State of Rajasthan and Others [AIR (1997) SC 3011], paragraph 3
Apparel Export Promotion Council v Chopra [AIR (1990) SC 625], paragraph 23
Rupan Deol Bajaj v Kanwar Pal Singh Gill [AIR (1996) SC 309]
As above at 15
See for example, Gallop, Jane in Feminist Accused of Sexual Harassment, Duke University Press 1997. As she writes:
      “When it is possible to conceive of sexual harassment without discrimination, then      sexual harassment becomes a crime of sexuality rather than of discrimination.      There is, in fact, a recent national trend toward findings of sexual harassment where      there is no discrimination.” (p 10)
Gallop, Jane in Feminist Accused of Sexual Harassment, Duke University Press 1997, p 11
University of Delhi, Ordinance XV (D) ‘Prohibition of and Punishment for Sexual Harassment’, section 2 (viii) available on http://www.du.ac.in/downloads/SexHarass-Ordn.pdf (last visited 2-8-2005)
See for example the Apparel Export Promotion Council (fn 4) case where the complainant’s pristine conduct and lack of knowledge about sex redeemed her credibility 
See Gallop, Jane in Feminist Accused of Sexual Harassment, Duke University Press 1997, p 71, who has remarked:
      “These days the feminist dialectic also appears in the guise of a pitched media      battle: ‘power feminism’ versus ‘victim feminism’.  Some vocal young feminists are      complaining that the feminist focus on phenomena like date rape and sexual      harassment is reinforcing the notion that women are victims. Rejecting a feminism      that they are stuck in an image of women’s fragility, a feminism that’s been dubbed      ‘victim feminism’ they propose that what women need is to recognise, enjoy and      enhance our power.”
See Kapur, Ratna ‘The Tragedy of Victimisation Rhetoric’ in Erotic Justice, Permanent Black, Delhi 2005, p 100:
     “…the victim subject and the focus on violence invites remedies and responses from      states that have little to do with promoting women’s rights.  Thus a related concern is      that the victim subject position has invited protectionist, and even conservative,      responses from states.”

InfoChange News & Features February 2006