Posts Tagged ‘gender biased laws’

Sexual Harassment Bill- design for abuse of law

July 25, 2009

Sexual Harassment at Work Place: Design for abuse of Laws

What is Sexual Harassment at Workplace:
In Visakha Judgment, the Supreme Court defines sexual harassment at workplace. The Vishaka judgement provides the basic definition of sexual harassment at the workplace. According to the Supreme Court, such behaviour “includes such unwelcome sexually determined behaviour (whether directly or by implication) as:
(a) physical contact and advances
(b) a demand or request for sexual favours
(c) sexually-coloured remarks
(d) showing pornography
(e) any other unwelcome physical, verbal or non-verbal conduct of sexual nature”
“Where any of these acts is committed in circumstances where under the victim of such conduct has a reasonable apprehension that in relation to the victim`s employment or work whether she is drawing salary, or honorarium or voluntary, whether in government, public or private enterprise such conduct can be humiliating and may constitute a health and safety problem. It is discriminatory for instance when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work including recruiting or promotion or when it creates a hostile work environment. Adverse consequences might be visited if the victim does not consent to the conduct in question or raises any objection thereto.”
Thus the “act simplicitor” like demand or request of sexual favour, sexually coloured remarks, or any other conduct of sexual nature is not a sexual harassment at work place. Such acts may be an immoral act or illegal act and punishable under various other laws, these are not sexual harassment at work place. Such acts becomes sexual harassment, only when due to womens employment it becomes difficult to object, for the women may have reasonable apprehension that such objection may interfere with her employment. It needs to emphasise here that the concept of “sexual harassment at workplace” has nothing to sexual act per se, it comes into operation only when such acts interfere with the right to employment by creating a hostile work environment.
A plain reading of Visakha Judgment shows that the ruling has been made based on right to equality, right to life and right to livelihood. Although the judgment has been delivered in case of a women petitioner, the court throughout judgment emphasized gender neutral nature of the right.
The Protection against Sexual Harassment of Women Bill, 2005 (hereinafter referred to draft bill) is a dangerous piece of legislation, which will create more problem than it solves. I oppose the bill on the following grounds:
Firstly it is a gender biased laws. The act of sexual harassment at workplace can happen both against men and against women employee. It can be argued that more women are victim of sexual harassment, however that fact cannot disentitle the smaller number of male victims from legal protection. Thus I demand that the proposed legislation be made gender neutral.
Secondly, it is to be noted that in Visakha Judgment, the court was examining petition of a women, and hence the definition given by the court is women centric. There are situation where males face specific type of sexual harassment. Thus while allotment of duties in an organisation, risky and tough work is given to males employee which is a blatant gender discrimination and sexual harassment at workplace. In granting leave etc., discrimination is made against men, which is another form of sexual harassment. Another subtle form of gender discrimination at work place is prevalent. Many a times it is felt that women employee gain advantage over men employee by extending sexual favours to seniors. This is a blatant form of sexual discrimination against men. Thus the definition must include male specific form of sexual harassment at workplace. In equal opportunity laws of US, sexual harassment has been defined Sexual Harassment as – This includes practices ranging from direct requests for sexual favors to workplace conditions that create a hostile environment for persons of either gender, including same sex harassment. This is a gender neutral definition, which takes into consideration various forms of subtle harassment of sexual nature at workplace.
Thirdly, it is seen from the definition of sexual harassment that the act has been defined as “unwelcome sexual conduct”. It is irrelevant as to whether such conduct is related to work or employment or not. Such wide and inclusive definition of offence will merely results in wild and false allegations which will hamper not only the accused individual and individual sense of justice, it will destroy the work environment in general and will result in closure of various businesses. When such false allegations will become more widespread, it will result in general distrust of women due to acts of some unscrupulous women and will affect women’s future employability. In this connection, I would like to point out that blatant misuse of dowry acts are resulting in same situation, where every complainant is being looked with a sense of suspicion.
Fourthly, the act can be a tool of extortion. The provision of dispute resolution prior to enquiry (Section 40) is creating a situation where it will become very easy for a women employee to make false allegations and then seek dispute resolution. As the person charged with allegations, even when innocent, is likely to loose his job, reputation etc., he will become a very soft target of extortion. An act which promotes such type of extortion needs to be opposed. It cannot be denied that a victim must be compensated, even monetarily if by the alleged act she has lost some material gains. But such power should be there at the hand of enquiry authority or disciplinary authority, who can award appropriate compensation if the situation so requires.
Fifthly, it is to be seen that the definition of the act solely depends upon a mental element, i.e. “unwelcome”. Thus if the sexual conduct is not unwelcome, it is not an offence. There is no definition of “unwelcome” or “communication of unwelcomeness” to the accused. It should be provided that when a reasonable person is expected to understand that the act is “unwelcome”. The alleged act should be made offence, only after communication of unwelcomeness by the victim. As welcomeness or unwelcomeness depends upon the mental state of the victim/accused, it is suggested that polygraph test may be applied in these allegations so that real perpetrators of crime can be punished and innocent persons are not harassed by false and motivated allegations.
Sixthly, it needs to be legislatively recognized that abuse of law exists and false allegations are leveled. Such false allegations are eating into the very faith of our judicial system. As the legislation does not make effort to discourage false allegations, every accused claim false charges and break the very faithfulness in legal procedure. Section 64 of the proposed Act is making same mistake. It gives immunity to false complainants. Further, it is giving real perpetrators of crime and excuse to level false allegation of false allegations. What should be provided that if the complaint is not found to be true, there must be inquiry into the genesis of the complaint itself and the complainant if found guilty, appropriate action should be taken against the complainant. I propose that the definition of sexual harassment must include “false charges of sexual harassment”.
In view of these, it is submitted that such changes in the proposed laws to be made to achieve the objective of safe and secure work environment. A work environment cannot be made secure for women by making it unsecure for men. Further, gender biasedness is such laws will result in division of society on the based of gender, a far more dangerous thing than division of society based on caste or religion.

Rajesh Kumar, Advocate


Oppose Women Reservation

June 7, 2009

For many decades, the political establishment of our country is ignoring men’s issues and under pressure from feminazis women, enacting laws which are blatantly Anti-men, designed to emasculate men, deprive men of their self-esteem, rights and property. The proposed women reservation bill is the latest measure, which should be opposed tooth and nail by men.
On face of it, such proposal is unreasonable. In Indian democracy women has always been adequately represented. We had women prime minister and still have women president. Indian legislature has approximately 10% women representative, which is highest in the world. This percentage is not there even in American or British parliament. This sinister design of women reservation was never applied in any of the developed nations. Then why this is being applied in India? What is the basis or rationale of this reservation in India? There is no answer.
The logic that only 10% women representative is there in parliament and so reservation is required is faulty. Not many women participate in politics. In any political party, at grassroots, hardly a few percentage points of the workers are women. When there are fewer grassroots women workers, obviously there will be few women members in legislature. What should have been demanded and granted is more places at grassroots level, which no women organization is demanding. This is typical women demand- let there be men grassroot worker in political parties, seats should be reserved for women in legislature. Men are beast of burden to do grassroot work, women will be members in parliament. Men are slaves. Men must understand this and oppose such design.
Whenever special provision has been made for women in law, it has been abused by women. Section 498A, Rape laws, maintenance laws etc. are burning example. Further, feminist politicians has supported such abuse of laws by women. When such feminist politicians will be in parliament, they will make more such gender biased laws and oppression of men will increase. We have to understand these sinister designs and oppose such reservation at the very outset. Otherwise, it will be too late.
Oppose these sinister reservations.

Maintenance is not a bounty

May 14, 2009

No Maintenance to Able Bodied Educated Women:
As per newspaper report (Times of India, 14.05.2009), the District Court in Delhi Refused maintenance to a wife who was found able bodied and educated. Justice Rajendra Shastri said,
“An able bodied person expected to maintain himself and family members depended on him. The same is equally applicable to his wife. In an advanced society like ours, a woman who is young, healthy and well versed cannot afford to sit idle, particularly when facing difficult circumstances, as the applicant in this case.”
The judgment is also took into consideration the applicant wife conduct like elopement of wife with his lover, abandonment of minor child and health of the husband. Nevertheless, the judgment is a step towards making maintenance laws, what it is.
Maintenance is not a bounty. It is not a birth right of a wife. It cannot be claimed as a matter of right. It is for a women, who cannot maintain herself & who has done the duties of a pious wife, to claim from her husband. Any women who has not done the duty of a pious wife, must not be entitled to claim maintenance from her husband. The other point is “ability to maintain herself”. A young healthy women, who is educated (even when not educated, can work as maid- many uneducated women are maintaining themselves that way) cannot be classified to be not able to maintain herself. The test is , whether a women of applicants ability is able to maintain themselves in the society or not- if yes, no maintenance- if no, there is a case for maintenance.
Maintenance laws needs to be applied strictly and in rare circumstances. It is usurpation of fruits of labour of a man in the guise of gender biased welfare laws. Such usurpation cannot be allowed to be made in a routine manner.

False Allegation of Rape

May 13, 2009

Rape Laws are the most vicious form of gender biased laws.
These are blatantly being misused by women. Abuse of these laws are destroying men, their self esteem, their family and society. I think there should be severe punishment for false accusation of crime, and it should be capital punishment for false accusation of rape.
Read this news story:
New Delhi, May 5 (IANS) Twelve years after being falsely accused of rape and later convicted, four men were Tuesday acquitted by Delhi High Court of the charges brought against them by a sex worker with the alleged connivance of some Delhi Police officials.
One of the men, Pankaj Chaudhari in his plea before the court claimed that he was “paying the price for opposing a flesh trade racket near his house in 1997″.
He was arrested, along with his brother Gunjesh, and two friends Jailal Yadav and Kashim Rain, on charges of raping a neighbour, who allegedly ran a prostitution ring.
They were jailed on July 28, 1997, and then convicted for gangrape in 2000, after police then manning the Hauz Khas police station – apparently at the instance of the s*x worker – decided to frame them for protesting against the racket which led to her business suffering.
Subsequently, an inquiry was ordered within the police department. The high court released the four men on bail in 2001.
“Due to allegations of rape, a stigma is attached to our names and we are facing great hardships in finding any job for our livelihood. We have been thrown out of jobs and are unable to live with dignity because we are called rapists,” they stated in their petition.
Justice S. Muralidhar acquitted the four, but reserved order on the plea of taking action against the then police officials involved in the case.
After they were convicted in 2000, their relatives alleged foul play, which led Amod Shastri, heading an NGO called Nyay Bharti, to probe the case.
Shastri’s efforts revealed that while the woman claimed she was raped at 9.30 p.m. by the four, another complaint in the same police station showed that she was arrested the same afternoon for indulging in flesh trade and let off at 10.30 p.m. on a bond of Rs.500. This indicated that she was actually at the police station at the time she claimed to have been raped at her home.

These laws have been enacted favourably for women, under the false presumption that women need special laws or special treatment in law. It is this abuse of law by a class of human beings, who act as victims, is pernicious and should be severely condemned. Protection laws must not be misused- for it will remove the very reason of protection laws in the legal system.
The problem of these gender biased laws is very basic which attacks the very root of civilized justice system. There is a concept called “corpus delicti” in criminal laws. It refers to proof of crime. Before starting a criminal trial, a court should ask for corpus delicti- an independent proof that crime has happened. A person should be put on trial only when there is independent proof of crime- independent proof in the sense that people not accusing the accused can say that crime has happened. Corpus delicti literally means, dead body. A person should not be put on trial for murder if there is no dead body (independent proof of crime).
In gender biased laws, there is no corpus delicti. In these gender biased laws, Corpus delicti is merely the view of the accuser women. Say, in an office, a male collegue approaches a women. If by chance women likes that collegue, it is proposal; if she does not like that person, it is sexual harassment at work place. Similarly, sexual intercourse between two adults may be making love or rape, based on the views of accusing women. Heated argument between husband and wife can be normal marital happening or cruelty towards women. It is very nature of these laws, which makes these prone to abuse. In these laws there is no corpus delicti, except statement of women. Hence abuse of these laws happens, not in the sense of accusing some innocent person falsely- it is accusing somebody, even when no crime has happened. That is why, these laws are sinister and should be opposed everywhere- in streets, in legislatures and in court rooms.
Why do women make false allegation of rape? Let us see a study- it throws some interesting facts- Quote-
The National Organization for Women , radical feminists, and Women’s Studies departments, often deny that women make false accusations about rape by asking the naïve, simplistic, and self-serving question: “Why would a woman lie?”
It turns out that there are plenty of reasons women lie about rape, either deliberately or out of desperation.
A U.S. Air Force study, “The False Rape Allegation in the Military Community (1983) investigated 556 cases of alleged rape, and found a 60% rate of false accusations. As part of the study, women who were found to have made false accusations were asked “WHY?”
Motivations given by the women who acknowledged they had made false accusations:
Reason – Percent
Spite or revenge – 20
To compensate for feelings of guilt or shame – 20
Thought she might be pregnant – 13
To conceal an affair – 12
To test husbands’ love – 9
Mental/emotional disorder – 9
To avoid personal responsibility – 4
Failure to pay, or extortion – 4
Thought she might have caught VD – 3
Other – 6

The study found that most false accusations are “instrumental” – they served a purpose. If the purpose isn’t avoiding guilt, or getting revenge, it might serve a more focused purpose, for example, telling her parents; “I didn’t just go out and get pregnant, I was raped.” Or, telling her husband, “I didn’t have an affair, it wasn’t my fault, I was raped.”
An unrelated Washington Post article, “Unfounded Rape Reports Baffle Investigators” (6/27/1992) also found a wide range of motivations to falsely accuse men of rape. Anger toward boyfriends was common. One woman had her boyfriend spend 13 months in jail before she acknowledged that she had lied. One woman accused her newspaper delivery man of raping her at gunpoint because she needed an excuse to be late to work.
Neither woman was prosecuted or even reprimanded for lying to the police and attempting to have a man frivolously imprisoned. In a recent US case, police say a young woman who admitted to falsifying two rape reports only wanted a day off from work.
All rape accusations need to be considered seriously, as, no doubt, rape does occur. But a balance needs to be maintained between the claims of the accuser against the all-too-often legitimate denial of the accused.
Women who are found to have made a false s*xual assault complaint should receive the same jail sentence as the male victim would have received if he had been convicted. That will put the brakes on fake rape charges.
Friends, we have to understand the reality. Society does not run on emotional rhetoric given by feminists. When we will see reported cases of rape in a newspaper, it is very easy to understand what is motivating the false allegation or whether it is real. Unfortunately Indian Media and people in general, do not have courage to say the reality. It is preferable to be called progressive by supporting feminist views, even when innocent lives are being destroyed with false allegations under gender biased law- or you will be branded regressive or male chauvinist pig or men threatened by women’s empowerment.

A Times of India Report says that 18% of rape allegations are false. Quote,

A little less than 20% of sexual-assault cases reported in and around Delhi are false, shows a five-year study. In almost every fifth incident, or, in 18.3 % cases to be precise, rape is used as a weapon to malign and attempt revenge, found a group of psychologists who assist Delhi Police in investigating sexual assault allegations.

The conclusion was drawn from 113 cases in the last five years. Anger towards the accused prompted allegations of rape in 25% of the false charges. An equal number of such cases were filed at the behest of family members. Every fifth false allegation was made by a minor `coached’ to cry `rape’ as an attempt to settle family scores. About 15% were situations of panic after clear consent, while the remaining 15% defied categorisation.

In September 2007, the Supreme Court had alerted lower courts to attempts at misusing the rape law, noting “the courts should bear in mind that false charges of rape are not uncommon.”

Rajat Mitra of Swanchetan, the NGO that conducted the study, says the false cases can be complicated at times. He talks of a 16-year-old girl from West Delhi’s Dabri area who accused her father and another man of rape. The girl claimed insanity post-assault, saying she would see faces of men all around her attacking her. The girl broke down on being asked by counsellors whether the images were in black and white or in colour. She confessed her brother had asked her to accuse their father. With her father in jail, believed the girl, her brother would get the property and she would get to marry the person of her choice. In the end, withdrew the case.

Another case was of a medically proven rape of a 13-year-old in Dwarka. The girl had accused three men but the police found their investigations did not show these men’s involvement. After a quiet talking-to by psychologists, the girl finally got the courage to speak the truth. She said the three men who had raped her were family members who had threatened her. To protect them, and out of fear, she had accused three others. In this case, the chargesheet was filed against the real culprits.
Unfortunately Indian Legal system is ignoring this grim aspect of reality.