Manufacturing absences: The absence of caste in India’s anti-sexual harassment legislation

Policies produce ‘problems’ in specific ways

This article summarizes my initial observations from analyzing data for my thesis, which is titled “problematizing sexual harassment at workplaces (SHW): a context of anti-SHW policies in India”. Policies produce ‘problems’ in specific ways (Bacchi 2009). This is largely the analytical claim of my thesis. By articulating what a policy specifically considers as ‘solutions’, a researcher can then glean how the ‘problems’ assumed within the policy have been historically constituted (Bacchi and Goodwin 2016). This approach, termed a “study of problematizations”, (Bacchi 2012) lets a researcher explore specific ways in which a given policy shapes its problems, what it excludes from the problem’s scope and how specific subjects are formed through the drawing up of ‘problem’ boundaries.

The typical data for such analysis is recommended to be practical texts, which delineate the aims, scope, ‘problems’ the policy intends to address and the ‘solutions’ it prescribes (Bacchi 2009). Thus legal texts, court verdicts, policy commentaries and clarifications, offered by policymakers or quasi-state actors, all constitute potential data sources.

Data and analysis 1: What policy says

In my work I ask: what is the ‘problem’ of SHW represented to be? Apart from exploring the different problematizations of sexual harassment, such an analysis can also indicate what is what has not been articulated as the ‘problem’ or rather what was ‘left out’ of ‘problem’ formulations. These are the silences within the policy’s ‘problem’ definition which produce exclusions through governing the boundary of what can be said and talked about in a particular policy space (Bacchi 2009). In my exploration of India’s “Sexual Harassment of women at workplaces (prevention, prohibition and redressal) Act” of 2013, also known as the POSH Act of 2013, I studied court verdicts in cases of SHW and conducted interviews with state and non-state actors within the policy space of the anti-SHW legislation.

The POSH Act commits employers in the formal sector to take measures of ‘prevention’ (such as regular anti-sexual harassment trainings of employees), prohibition (such as explicitly banning SHW), –and holds employers accountable through various provisions of enquiry, audit reports and fines. Significantly, the Act also specifies enquiry and redressal provisions for cases of SHW for both the ‘formal’ as well as ‘informal’ workplaces, through the commissioning of enquiry bodies namely the Internal Complaints committees (for ‘formal’ sector workers) and Local complaints committees (for ‘informal’ sector workers).

The present discussion addresses the absence of caste marginality in issues of sexual harassment of ‘women’ at workplaces (V. Geetha 2017). The reason I place ‘women’ in scare quotes here is to highlight that only a specific type of ‘woman’ is addressed in the ‘problem’ definition of SHW – a woman without a caste.

The danger of using ‘woman’ as a universal and ubiquitous category has been discussed at length in feminist work on intersectional discrimination (Crenshaw 1990; Yuval-Davis 2011). Researchers warn against the flattening of social difference, by forcing equanimity on the experiences of ‘women’ placed in various and differently oppressive social structures such as caste, sexuality religion, class and other contextual discourses and nuanced categories of intersectional experiences. It was through my fieldwork that I began to understand how these exclusions can happen at the expense of seemingly ‘equally intended’ policies.

The language of the POSH Act declares SHW to be a ‘problem’ pertaining to ‘women’. This excludes men (from different castes, religions, ethnicities, straight, gay, transgender or non-binary among other marginalized categories) from the ambit of sexual harassment at workplaces, drawing in a strict binary logic to the contextually situated and constructed practices that are termed ‘sexual harassment’ (Bingham 1994). However, what pertains to this article, is that this Act employs ‘woman’ as an umbrella term and does nothing to further unpack the category. Neither the prologue to the POSH Act nor the Handbook accompanying the Act, issued by the ‘Ministry of Women and Child Development’ (MWCD) mention anything about the disproportionate sexualization of women from marginalized castes and tribes (V Geetha 2017).

Applying my problematization lens of analysis to this, I looked at the first set of my data – analyzing thirty cases pertaining either to ‘sexual harassment of women at workplaces’ or ‘intent to outrage the modesty of a woman’ in state High Courts. The topic of caste has come up in only two of these thirty cases, wherein, in both these cases the respondent is an undercaste man and the aggrieved an ‘upper’ caste woman. Thus, the only mentions of caste do not include Dalit/Bahujan (undercaste or ‘lower’ caste) and Adivasi (Tribal) women in any capacity. Further, the two cases in which caste does come up, involve an undercaste man being accused of sexually harassing an ‘upper’ caste woman, thus producing a rivalrous contention between casted and gendered subjectivities. These findings were then followed by interviews which further made invisible, the co-constitutiveness of caste in cases of sexual harassment.

Data and analysis 2: What consulting firms say

The second level of data analysis were the interviews I conducted recently, in which I decided to follow up on the silence around caste-based marginality in India’s policies on sexual harassment. The interviews were unstructured. Sometimes I would wait for the discussion to lead to matters of intersectional discrimination and other times would directly ask a question: “The issue of caste-related sexual harassment at workplaces is not discussed in this law, what are your thoughts on this?” Often the answers were some of the following

• Our consulting firm works mostly with corporates and the issue of caste does not come up there.
• Caste is not a ‘problem’ in formal workplaces.
• Caste related sexual assault – this is a bigger problem in rural areas.
• The law mentions sexual harassment of women at workplaces. That obviously includes all women, regardless of their caste
• This law does not talk about caste and hence it is not our place to bring it up. If the law changes tomorrow, we will change too. But insofar as the POSH Act is concerned “it is about compliance, not social justice”.

This last one is a direct quote from one of my interviews. Several follow up questions present themselves. How does the policy space of an Act get so confined in its ‘problem’ definition that alternative ‘problem’ statements are not acceptable within its discussion? Is compliance not another way of delivering social justice? How are class and caste getting entangled in the articulation of the following sentence “caste related sexual assault is a bigger problem in rural areas”? How does ‘social justice’ come to be excluded from compliance? And finally – the omnipresent discussion within feminist thought and philosophy: Can there be a ubiquitous pronouncement of what is meant by ‘women’?

For one, in the seven years since the POSH Act was passed, the Act has increasingly produced a rise in the supporting bureaucracy of quasi-state actors, in the form of consulting firms (Sarpotdar 2016). These firms are mostly limited to major metropolitan cities and in some cases to tier two cities. The spaces in which their trainings are conducted are urban and peri urban. Thus, through the ‘problem’ definition and the ‘solution’ space of trainings and awareness generation, the assumptions of SHW being a ‘problem’ of non-rural and mostly formally employed women is steadily constructed and reinforced. Accordingly, the subject positions upheld in the space of this policy also continue to be the neoliberally inclined aggrieved – who while participating in development, being self-sufficient and autonomous subjects (Madhok and Rai 2012) – are ultimately governed and disciplined through the problematizations defined by ‘policymakers’.

Secondly, the question of ‘compliance vs. social justice’ indicates a further deepening of the belief that policymaking is about solving seemingly ordained and pre-decided ‘problems’ with no thought to the conditions of emergence and specific definitions attributed to those policy ‘problems’. Once it is decided that SHW is a ‘problem’ of ‘compliance’, the resultant discussion will primarily revolve around debating the mechanisms of the said ‘compliance’. Governing then continuously occurs through the definition of these boundaries (Rose and Miller 1991). The POSH Act and its bureaucratic apparatus appear to be dowsed in the practices of reaffirming the ‘problem’ and its ‘solution’ through the rigorous focus on ‘implementation’.

Finally, it is pertinent to point out that it was because of my own position being that of an ‘upper’ caste woman, that these discussions were made possible. It is significant to recount that this Act came after years of struggle (Patel 2005; Kapur 2013) and the discussion is not about whether or not we need an anti-SHW policy, but whether or not we have one that leaves possibilities of local and contextual resignification. Primarily, it is essential to dwell on the perils of erasing differences once we operate under the universalism of the term ‘woman’ (Butler 1992). Further, there are implications to accepting a policy’s terms for addressing a complex and contextually varied set of subjects, under the wide net of ‘women’, when clearly violence and especially sexual violence is disproportionately experienced by undercaste women.

In keeping with Lotherington, Obstfelder and Halford (2016), it must also be pointed out that gender and caste are not essential and fixed social categories but rather their co-constructions and intersections must be further studied. There is a denial of the role of caste in SHW and the POSH Act, by disregarding caste, produces SHW as a ‘problem’ that is constituted through gender rather than as co-constituted through gender and caste.

Other absences

I decided to address only the silence on the issue of caste and have not yet analyzed or written about the silence within discourses of SHW with regard to lesbian, trans and queer women. It is equally significant to mention that discourses of ‘married/single/divorced/widowed’ as well as ableist narratives of ‘physical/mental disability’, and a number of similarly subjugated subjectivities bear down on us in our discussions of policies that address ‘women’s’ issues. This article, however, is the discussion of the absence of caste – one of the primary co-constitutors of sexual violence (Patil 2016) – from the public policies meant to address the sexual harassment of ‘women’ at workplaces. This article also attempts to enmesh poststructuralist ideas of policy problematizations together with examining policy silences produced through fixed ‘problem’ definitions.

References

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