Editorial 1: Slow progress to creating a safe workplace for women
Introduction:
- The recent case of allegations of sexual harassment that some of India’s sportswomen (wrestling) are said to have faced have shocked us. Those affected had to sit in protest in the capital to make themselves heard. This shows that any internal complaints committee (if there is one) does not function. Or, the wrestlers were not aware about it.
The Vishaka guidelines and POSH Act, 2013
- Supreme Court (SC) introduced it in 1997 to fill the legislative void on women’s sexual harassment. It has evolved into a parliamentary law called the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act of 2013 aka POSH Act, 2013.
- The guidelines on reporting harassment of women are meant to be followed by government and private institutions equally. In view of the sensitivity of the issue, the Union Sports Minister constituted an ‘oversight committee’ headed by a lady Olympic medal holder to investigate the charges levelled against the president of the Wrestling Federation of India.
- The Act defines sexual harassment at the workplace and creates a mechanism for redressal of complaints.
- Every employer is required to constitute an Internal Complaints Committee at each office or branch with 10 or more employees. The Complaints Committees have the powers of civil courts for gathering evidence. The Complaints Committees are required to provide for conciliation before initiating an inquiry if requested by the complainant.
- Penalties have been prescribed for employers. Non-compliance with the provisions of the Act shall be punishable with a fine. Repeated violations may lead to higher penalties and cancellation of license or registration to conduct business.
| SHe-BoxUnion Ministry of Women & Child Development has launched Sexual Harassment electronic Box (SHe-Box). It is a single window access to every woman, irrespective of her work status, whether working in organised or unorganised, private or public sector, to facilitate the registration of complaint related to sexual harassment. Once a complaint is submitted to the ‘SHe-Box’ portal, it will be directly sent to the concerned authority having jurisdiction to take action into the matter. |
Structural violence
- Violence, in the form of sexual harassment at the workplace, is both direct and structural. While an enabling environment for reporting direct violence has shown a gradual improvement, indirect violence remains poorly addressed because it is embedded deep in our social and economic structures.
- It is more visible in the employment imbalance prevalent between men and women, in the organised and unorganised sectors. With more men at the workplace, they feel entitled and empowered to take undue advantage of the historical fact that the society is still patriarchal and women are not only in a minority but also occupy a few of the higher positions.
Data on workforce
- The Periodic Labour Force Survey (PLFS) annual report available for 2020-21 shows that though the participation of women in the total labour force grew, i.e., Labour Force Participation Rate (LFPR) has gradually increased from 17.5% in 2017-18 to 25.1% in 2020-21, and the Worker Population Ratio (WPR) from 16.5% in 2017-18 to 24.2% in 2020-21, it is still much less when compared to men.
- The LFPR and WPR data published in the latest Quarterly Bulletin (April-June 2022) are not encouraging either. While LFPR is defined as the percentage of persons in the labour force among the persons in population (i.e., both employed and unemployed or seeking employment), WPR is the percentage of persons employed among the persons in population.
Way forward: Start early, and at home
- The absence of an enabling and safe working environment is one of the factors for the poor participation of women in the labour force. It is generally believed that most women do not complain of sexual harassment and the current redress mechanism is either non-existent or ineffective. They are more vulnerable to exploitation by their employer as they can be easily threatened with their job continuity for indecent favours.
- Unless the mindset of treating men and women as equals is developed at an early stage of character formation during childhood, the stereotyped power relation between the two would be difficult to change later.
- The ‘nature versus nurture’ theory says that both genetics and the environment affect an individual’s development. While genes may decide certain features of one’s personality at birth, it is social conditioning and the environment of the family and early schooling which matter the most during the growth of children.
- Unless both parents respect each other and treat their girl and boy child on a par in all respects, they grow up learning this inequality as a normal phenomenon, which may even lead to the development of criminal tendencies in men. Therefore, the beginning has to be made at home.
Fixing goals
- Similarly, providing a safe work environment is the responsibility of the employer. The employer needs to ensure that the working environment is safe and women friendly. However, it has been observed that whenever allegations of sexual harassment are levelled against superior authorities, instead of getting the complaint inquired into expeditiously under the law, i.e., the POSH Act, 2013, the accused either resorts to multiple attempts at litigation to stall the due process or attempts to bring disrepute to the victim on flimsy grounds. The situation becomes more complex when the accused himself is at the helm of affairs.
- Therefore, it is essential to fix goals to improve the workplace environment for women. The short-term goals may include providing the requisite women-friendly infrastructure, the constitution of internal complaint committees, and the spreading of awareness about the law and procedure of grievance redress.
- Medium-term goals may include the increase of female participation in the labour force, improvement of tooth-to-tail ratio, and providing incentives to prevent drop-outs such as paid maternity leave.
Conclusion:
- In the long-run, it is essential to address the deep-rooted structural and cultural violence which puts women in a disadvantageous position. Unless society as a whole works incessantly to bring about the required changes in the existing socio-cultural and economic structures to eliminate indirect violence, root and branch, the status quo may not change.
Editorial 2: The problems with the Data Protection Bill
Context:
- The Union Ministry of Electronics and Information Technology (MEITy) has drafted a Digital Personal Data Protection (DPDP) Bill with the stated purpose of providing “for the processing of digital personal data in a manner that recognises both the right of individuals to protect their personal data and the need to process personal data for lawful purposes…”
Diluting the RTI Act
- A data protection law must safeguard and balance peoples’ right to privacy and their right to information, which are fundamental rights flowing from the Constitution. Unfortunately, this Bill fails on both counts. There are at least four reasons why the Bill must be put through a process of rigorous pre-legislative consultation and redrafted before it makes its way to Parliament.
- First, the Bill seeks to dilute the provisions of the Right to Information (RTI) Act, which has empowered citizens to access information and hold governments accountable. Experience has shown that if people, especially the poor and marginalised, are to have any hope of obtaining the benefits of welfare programmes, they must have access to relevant, granular information.
- The RTI Act includes a provision to protect privacy through Section 8(1)(j). In order to invoke this Section to deny personal information, at least one of the following grounds has to be proven: the information sought has no relationship to any public activity or public interest or is such that it would cause unwarranted invasion of privacy and the Public Information Officer is satisfied that there is no larger public interest that justifies disclosure. The proposed Bill seeks to amend this Section to expand its purview and exempt all personal information from the ambit of the RTI Act.
- The DPDP Bill needs to be suitably amended and harmonised with the provisions and objectives of the RTI Act. This would be in line with the recommendation of the Justice A.P. Shah Report on privacy. Neither the recognition of the right to privacy, nor the enactment of a data protection law requires any amendment to the existing RTI law.
Widening discretionary powers:
- Second, by empowering the executive to draft rules on a range of issues, the proposed Bill creates wide discretionary powers for the Central government and thus fails to safeguard people’s right to privacy. For instance, under Section 18, it empowers the Central government to exempt any government, or even private sector entities, from the provisions of the Bill by merely issuing a notification.
Government control
- Third, given that the government is the biggest data repository, it was imperative that the oversight body set up under the law be adequately independent to act on violations of the law by government entities. The Bill does not ensure autonomy of the Data Protection Board, the institution responsible for enforcement of provisions of the law. The Central government is empowered to determine the strength and composition of the Board and the process of selection and removal of its chairperson and other members.
- Further, the chief executive responsible for managing the Board is to be appointed by the government, which gives the government direct control over the institution. The Central government is also empowered to assign the Board any functions “under the provisions of this Act or under any other law.”
- The creation of a totally government-controlled Data Protection Board, vested with the powers of a civil court and empowered to impose fines up to ₹500 crore, is bound to raise serious apprehensions of its misuse by the executive.
Widening the digital divide
- Finally, the Bill stipulates that the Data Protection Board shall be ‘digital by design’, including receipt and disposal of complaints. As per the latest National Family Health Survey, only 33% of women in India have ever used the Internet. The DPDP Bill, therefore, effectively fails millions of people who do not have meaningful access to the Internet.
Way forward:
- While protecting the rights of the data principal, data protection laws need to ensure that the compliances for data fiduciaries are not so onerous as to make even legitimate processing impractical.
- The challenge lies in finding an adequate balance between the right to privacy of data principles and reasonable exceptions, especially where government processing of personal data is concerned.
- Given the rate at which technology evolves, an optimum data protection law design needs to be future proof — it should not be unduly detailed and centred on providing solutions to contemporary concerns while ignoring problems that may emerge going forward.
Conclusion:
- The law needs to be designed for a framework of rights and remedies that is readily exercisable by data principals given their unequal bargaining power with respect to data fiduciaries.
