If 2017 will be remembered for anything, it won’t be GST, the cartoonish villain that is Trump, or the bluster of North Korea, it will be an innocuous little hashtag that blossomed into a full-fledged movement: #MeToo. While the far-reaching effects of this movement have been felt by possibly every woman and man with access to the internet, the conversations around rape, sexual harassment and sexual violence have been fiery, polarising, meaningful and cathartic, with harassers and predators being outed and shamed, mostly in the US.
India, which is hardly known for being a bastion of gender equality (or really, any kind of equality), has been a mute spectator when it comes to taking action against our own home-grown thespians of sexual harassment. Aside from the list of sexual harassers in academia (LoSHA) which immediately polarised Indian feminists into two camps – champions of a non-existent ‘due process’ and defenders of a victim’s right to whichever process they deem fit, there have been few instances of powerful men being taken down by the movement here. (Note: Subsequent crowdsourced lists of harassers were put up by other women as well). This is symptomatic of two things: first, the toxic environment pervading this country that discourages victims from coming forward even anonymously, and second, how patriarchy and misogyny govern the social fabric of our lives so much so that abusers and sexual predators are almost guaranteed impunity. Here, one may keep in mind that this is the same country that ranked a cool 108th in the World Economic Forum’s (WEF) Global Gender Gap index for 2017, and where women’s workforce participation rate has actually been falling (from 37 per cent in 2004–05 to 28 per cent in 2016).
The sexual harassment law
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act became the law for sexual harassment cases in the workplace in 2013. Till that time, the Vishakha Guidelines, put in place by the Supreme Court in 1997 post its judgement in the Vishakha vs. State of Rajasthan case, were used to deal with such complaints. It took a mere 16 years for the legislative branch of the country to pass these guidelines into law.
The Act is applicable to all workplaces, private or government, with more than 10 employees, is not limited to women who work there, and covers students in schools and colleges and domestic help as well. Any woman who is sexually harassed at a workplace (even by a third party) can raise a complaint either to the Internal Complaints Committee (ICC) that needs to be set up or to the police. Failure to set up the ICC to investigate such cases can result in a fine of up to Rs 50,000.
In cases where the ICC is not set up (for instance, workplaces with less than 10 employees), the district officer is mandated to constitute a local committee to receive such complaints. The Act explicitly refers to the ‘fundamental rights of a woman to equality under articles 14 and 15 of the Constitution of India and her right to life and to live with dignity.’ The landmark Vishakha ruling established that sexual harassment violated a woman’s rights in the workplace and was not just a matter of personal injury and grievance. This is important because it recognises that sexual harassment is an issue of basic rights as well.
The infamous Vishakha case was triggered by the brutal gang rape of Bhanwari Devi, a government worker in Rajasthan advocating against child marriage, by upper-caste men. After the accused were acquitted by a lower court, several women’s rights groups and NGOs came together under the collective platform of Vishakha to move the SC against this and petition for the rights of working women.
The Act defines ‘sexual harassment’ as any one or more of the following unwelcome acts or behaviour (whether directly or by implication):
- physical contact and advances
- a demand or request for sexual favours
- making sexually coloured remarks
- showing pornography
- any other unwelcome physical, verbal or non-verbal conduct of sexual nature
This handbook by the ministry of women and child development gives a general guideline of the key elements and examples of workplace sexual harassment and is worth going through.
Main features of the law
The complaint has to be made within three months from the date of incident, and in case of a series of incidents, within three months from the date of last incident. During the period of inquiry, the complainant is entitled to a transfer to any other workplace or leave of up to a period of three months or any other such relief as prescribed by the ICC. The investigation is to be completed within a period of 90 days. If the allegation is proved, action is to be taken against the perpetrator and the victim is entitled to a compensation that should take into account the mental trauma and emotional distress caused, the loss in career opportunity, the medical expenses incurred by the victim for physical or psychiatric treatment, and the income and financial status of the harasser. Action can be taken against the complainant if there’s concrete evidence of false allegations. While this may seem fair, it can act as a deterrent for victims to come forward, especially if they feel the harasser is powerful enough to influence witnesses or the committee members (more on this later). Another key thing to note is that the identity of the victim, harasser, and involved parties as well as the contents of the complaint and inquiry cannot be disclosed to the public and media. Full anonymity is guaranteed to the victim.
The law outlines specific duties for the employer including providing a safe working environment, devising and prominently displaying service rules that treat sexual harassment as a misconduct and the resultant consequences, organising workshops to sensitise employees on such issues, helping the victim to file a complaint under IPC, and assisting the ICC in conducting its duties. Organisations are also required to mention the cases filed and their status in the annual reports. However, as pointed out by many, there is no clarity on who is responsible for ensuring that these guidelines are followed and where does the buck stop. For instance, if a company doesn’t set up an ICC as per requirements or doesn’t take action against offenders, is it the CEO, the board, or the entire management that should be held liable? Then there’s the small matter of enforcement – suffice to say that considering the sheer number of workplaces that come under this Act, it has been almost non-existent. However, without some semblance of monitoring and accountability, the law will have limited impact on the objectives for which it was brought into effect in the first place – that is, providing a safe mechanism for victims to seek justice and promote equality in workplaces.
One may note that there are other laws related to crimes against women. Under the Indian Penal Code (IPC), Section 354 deals with sexual harassment, stalking, sexual assault and voyeurism (for example, recording a video of a woman who’s changing clothes). Section 370 covers trafficking and sections 375 and 376 are for rape. Separately, offences related to paedophilia are covered under The Protection of Children from Sexual Offences Act, 2012, while domestic violence cases are governed by The Protection of Women from Domestic Violence Act, 2005. Marital rape is still not a criminal act.
No country for women
India’s sordid history of not dealing with sexual harassment is shameful and a primary reason for the chronic under-reporting of such crimes. Take the examples of these luminaries in the sexual harassment hall of shame – the supreme court judge AK Ganguly, who was conveniently absolved of harassing an intern by the home ministry; the defence of Tarun Tejpal by Shoma Chaudhury (Tehelka did not have an ICC at that time); the repeat sexual offender Phaneesh Murthy of Infosys; the powerful angel investor Mahesh Murthy; the 2015 Doordarshan case where the abuser got off scot-free despite proven charges; and RK Pachauri, who continued to head TERI and IPCC despite an FIR filed against him. Other famous cases are the conviction of KPS Gill (who didn’t serve any jail time); ex-Haryana minister Gopal Kanda, who harassed an airhostess Geetika Sharma leading to her suicide; and Satish Kumar, an assistant professor in St Stephen’s chemistry department who was alleged to have harassed a PhD student (the victim subsequently withdrew her complaint from the ICC as she lost faith in it, the then principal Valson Thampu, and the college authorities).
More recently, when TVF’s Arunabh Kumar was accused by multiple women of sexual harassment, the company’s initial response was to discredit the first victim who spoke out. The official statement was somewhat akin to a mafia-style threat, perhaps inspired by the drama of the company’s own skits. Then there is the infamous Mahmood Farooqui judgement, delivered in a garbled mess of vague and befuddling words, which was a textbook example of how out of touch our esteemed judges are on simple concepts such as consent. But in a country where, since 1950, only six of the 229 SC judges have been women, is that so surprising or an inevitable by-product of a society that still seems to be stuck in the Stone Age?
About 70 per cent of women who perceive sexual harassment at workplace do not complain, as per NCW member-secretary Satbir Bedi. The reasons for the abysmally low rate of reporting isn’t hard to fathom. A patriarchal, regressive society, an underpaid, understaffed and apathetic police force, a slow, obsolete and pontificating justice system that rarely metes out justice, the ubiquity and normalisation of sexual harassment and assault, the fact that most abusers are known to the victims and are often their family members, relatives and partners, the stigma attached to the victims of such crimes (not the perpetrators, mind you), and the sheer trauma and ostracisation that survivors have to go through should they decide to seek some kind of redressal – the odds are so stacked against the victim. Which right-thinking person would want to take a chance?
In light of a justice system that fails victims repeatedly, women are increasingly resorting to informal ways to speak out against their abusers: crowdsourced anonymous lists, blog posts, social media naming and ‘shaming’ through documented evidence like chat screen shots, and text messages circulated among women (the online version of whisper networks). Till the time there’s a drastic change in the way our society views and approaches gendered violence, it will continue to be endemic and women will continue to suffer silently.
Limitations and criticism of the law
There have been plenty of critiques and criticisms of the law’s failings and blindspots, noble-intentioned as they might be. First, the law imposes a time limit of three months to lodge the complaint. The ICC may extend this deadline by another three months if it has reason to believe there were extenuating circumstances preventing the victim from coming forward. This fails to take into account the fact that most women take time to process and even identify such incidents as one of harassment. Post-traumatic stress disorder (PTSD) is common among victims, as are coping mechanisms that shut out said incidents to help avoid the trauma and shock of these horrific acts. There is also a tremendous amount of pressure to keep such incidents under wraps to avoid the stigma associated, as well as ‘well-meaning’ advice to let bygones be bygones (because ‘boys will be boys’?). To endure this requires a huge amount of emotional and mental labour from the victim, which is not available to many women, especially those from marginalised and oppressed backgrounds.
Second, there’s little liability on the employer if they fail to provide a safe working environment for women. Their responsibility is limited to setting up the ICC, conducting inquiries, and training their employees on such laws and codes of conduct. If the woman is victimised, gaslighted, or bullied by said employers for daring to speak out, there’s little recourse within this law for her to seek redemptive justice.
The ‘Duties of Employer’ section in the law seems like a vanilla list dreamed up by an employer who wanted as little to do with combating sexual harassment as possible. This is in stark contrast to countries like the US where the Supreme Court asserted that in cases of harassment, the employers must prove that they had exercised reasonable care to prevent and correct promptly any such behaviour, and that the employee unreasonably failed to take advantage of such opportunities, to be fully absolved of any liability for a supervisor’s or manager’s harassment. To get employers fully on board, they need to be held responsible for what goes on in their workplaces. Merely handing out wages or forming an ICC shouldn’t be the limits of their liability.
In another major drawback of this law, provision is made for false or malicious complaints if the ICC comes up with findings that support this view. The employer can take action against the complainant in such cases, leading to further barriers for victims to speak out about their abuse. Raising the bogeyman of false accusations only results in rightful concerns such as the need to have a watertight case with incontrovertible evidence against the harasser before proceeding with the complaint, or that perpetrators in powerful positions can bully and bribe their way into punishing their victims. There is the constant spectre of further victimisation by employers when women are unable to sufficiently convince the committee of their grievances (the reasons can be myriad – victims are usually scared and ashamed, suffer from PTSD, muddled recollection of such incidents, lack of communication skills, absence of peer and familial support, subjected to victim-blaming or slut-shaming, lack of trust in due processes, lack of access to adequate therapy, etc.). Employers can easily paint a picture of the victim being incompetent, vindictive, unfit to work, or mentally unstable (weapons that have been used against women since time immemorial). As anyone who has ever worked in her life can testify, systems that have inherent power differentials and hierarchies are ripe for abuse by those in power, especially when the victim is in a subordinate position or a precarious economic and social condition.
The Act is also criticised for prioritising complaint mechanisms, rather than prevention, since both are equally important to ensure a fair working environment for women. There’s also some ambiguity if gender-based discrimination and casual or pointedly sexist remarks (which are commonplace in this country) are covered by this law. Concerns have also been raised at the broad set of qualifications required to be a member of the ICC, which essentially means any one can be deemed fit; consider this criteria – ‘preferably committed to the cause of women or who have had experience in social work or have legal knowledge.’
More problematic is that employers are given the responsibility to constitute the ICC. This means that the employer can willy-nilly choose anyone at their own discretion, as long as they satisfy the basic criteria. Another issue is that while the employer is obliged to act on the recommendations within 60 days, it is not mandatory for them to abide by it to a T. Although there are redressal mechanisms if a person is not satisfied with the recommendations and/or implementation, few would have the resources or time to go through another legal quagmire. As Mumbai-based lawyer Monica Sakhrani noted, ‘In most cases, there is lack of coordination between the complaints committee and the personnel/disciplinary authority of the organisation. Having been on several committees, one is rarely aware of the outcome of the report one submits, except through the grapevine or when stringent steps are taken such as removal of the employee (which in my experience is rare).’
Sexual harassment needs to be seen in the broader context of workplace dynamics and how they relate to society at large. While ICCs can help in resolving conflicts and complaints, it is equally important that women have the required access to solidarity networks, both formal and informal, that can provide the right kind of support and resources to deal with such normalised harassment at workplaces and at home. This is also where companies should invest their time and resources in. While training and gender-sensitisation workshops help to an extent, without thoughtfully and deliberately creating and promoting a culture (that necessarily has to be championed by the top management) that values equality and punishes any kind of discrimination and harassment based on identitarian or class factors, much of these talks and sessions will come to naught. If employers don’t walk the talk, one might as well trash all those women-only networks and grandiose statements of gender-equal workspaces to the bin. Sexual harassment cannot be divorced from the nature of modern workplaces and society. While employers cannot always influence the latter, they need to start using the power in their domains a bit more responsibly to transform the former.
In the second and concluding part, CB will take a look at some of the studies done on sexual harassment in India and responses from companies to our questions on this topic.