SEXUAL HARASSMENT AT THE WORKPLACE
SEXUAL HARASSMENT AT THE WORKPLACE And The Supreme Court Guidelines:
A Case Study
Newsletter Sep 1998
A year ago, on August 13, 1997 the Supreme Court of India laid down guidelines on Sexual Harassment at Work place - pronouncing it a cognizable offence. This move, initiated in response to an active campaign by women’s groups was widely hailed as a significant positive step towards providing a safe and more conducive working environment for women. We present here a case study that we have been involved with, which gives several insights into the working of the Supreme Court Guidelines.
Susheela (not her real name), was employed as an EDP executive with a pharmaceutical company in Ghaziabad. She was a good worker, and during her two year tenure with the company, the management never had occasion to find fault with her work; nor with her conduct for that matter.
Yet, the last one year has been a year of trauma and struggle for Susheela. She had fallen prey to sexual advances of Rajendar Saini, the cleanliness and sanitation contractor of the company. Susheela tried to ignore this insufferable character - as most girls in a similar situation would - and carried on with her work.
However, the situation became unbearable when on 3rd November, 1997 Rajendar Saini once again resorted to singing sexually suggestive songs and making obscene gestures at Susheela, despite her strong objections. This time, Susheela was driven to a point where she was forced to retaliate. Rajendar Saini had dared to make unwelcome physical advances to her. Susheela had no intention of bearing up with the pain and humiliation inflicted on her. On that very day, Susheela lodged a written complaint with the Manager (Administration). Thus began her endless ordeal and she found herself entangled in battles on several fronts.
The Role of the Management
Where sexual harassment occurs as a result of an act by any third party or outsider, the employer and person-in-charge will take all necessary steps to assist the affected person in terms of support and prevention action. (Supreme Court Guidelines).
Though the culprit in this case was not an employee, he had access to the workplace (being a contractor) and harassed a regular employee. Following the complaint lodged by Susheela, Ramesh was prohibited from entering the company premises, but his contract was not cancelled.
On the other hand, in a clear case of victimisation, Susheela was suspended on the very day that she lodged the complaint. The management of the company, instead of dealing with her complaint in accordance with Supreme Court guidelines, issued a letter alleging that she had used abusive language against Rajendar Saini and had beaten him up with a chappal, stating that this constituted ‘serious misconduct and breaking the discipline of the company’, clearly implying that the management expects women facing such harassment to suffer it quietly and not raise their voice against it.
“It shall be the duty of the employer or other responsible persons in workplaces and other institutions to prevent or deter the commission of acts of sexual harassment, and to provide for the resolution, settlement and prosecution of sexual harassment by taking all steps required”.
In the present case the Company not only failed to carry out its duty, it went a step ahead by turning a blind eye to the real issue of sexual harassment and portrayed the case as that of a labour dispute i.e., a case of misconduct. Susheela was penalised.
Saheli attempted to pressurise the management to view the case in its proper perspective, i.e., as a case of sexual harassment and also apprised them of the Supreme Court guidelines in dealing with such cases. But all along the management refused to concede that sexual harassment had occurred. They also didn’t like the idea of a women’s group intervening and questioned Saheli’s credentials, insisting that we have no locus standi to intervene in what they perceived as a `labour case’.
Negotiations were held with the management, alongside attempts to initiate criminal prosecution for contempt of court, while at the same time we also tried to deal with the criminal charges instituted against Susheela by the offender.
An `inquiry’ was held by the management. Three other women employees, who were witnesses to the incident gave evidence against Susheela. Following the domestic inquiry, the conclusion was reached that she was guilty of misconduct. Susheela was dismissed on 2.4.98.
The Complaints Committee
Yes, it was set up and unbelievable as it may sound, this so called Complaints Committee came into existence the very day that Susheela was dismissed. The reason for this much belated action was a legal notice from a Supreme Court lawyer, who has also been helping Susheela. It stated that failure to fulfill and discharge the obligations and duties imposed by the law laid down by the Supreme Court would amount to gross contempt of court, inviting penal action.
The Supreme Court Guidelines clearly specify: “during the period when a woman’s complaint of such harassment is being processed, care should be taken to prevent her further victimisation.”
A farcical situation ensued, whereby the Committee was inquiring into a complaint of sexual harassment committed on a woman who had by that time been dismissed by the management. However, now that the Complaints Committee had been set up, the management expected Susheela to attend the proceedings. Susheela gave the Complaints Committee a plea in writing that this procedure was not in keeping with the Supreme Court guidelines, and that Complaints Committee is meant to look into cases only of the employees of the organization. Susheela requested them that she should first be reinstated and repeatedly assured them that once they have fulfilled this basic requirement, she would be happy to appear before the committee.
Without paying any heed to Susheela’s plea and the legal validity of her demand to be reinstated, the management went ahead with the inquiry. The setting up of this Complaints Committee was just an eye-wash, aimed at protecting the company’s own interests by appearing to be a fair and just organisation. Not surprisingly, the Complaints Committee came to the conclusion that there had been `no incident’ of sexual harassment against Susheela.
The Criminal Cases
“Where such conduct amounts to a specific offence under the IPC or any other law, the employer shall initiate action by making a complaint with the appropriate authority. Under the law of land, the employer, has a duty and responsibility to initiate criminal prosecution in case the sexual harassment perpetrated amounts to an offence under the IPC.”
In Susheela’s case, the acts perpetrated clearly amount to an offence under IPC sections 509 (insulting the modesty of a woman) and section 354 (assault or use of criminal force to a woman with intent to outrage her modesty).
Following an incident when the security personnel of the company tried to forcibly make her sign a document without allowing her to read it, Susheela had made another written complaint at the police station. This too was not registered as an FIR.
The acts committed by the management amount to offences under IPC sections 504 (insult intended to provoke breach of peace), 506 (criminal intimidation) and 509 (insulting the modesty of a woman). Susheela has filed a petition for contempt of court alleging that the Company did not comply with the Supreme Court guidelines.
In a bizarre turn of events, the offender lodged a complaint through the Judicial Magistrate and got a criminal case registered against Susheela under section 325 of IPC (Voluntarily causing hurt), 500 (defamation), 501 (printing defamatory statements and 506 (criminal intimidation). A warrant was out for Susheela’s arrest. She had to run around for getting bail and the case is now pending in the Sessions Court.
Since the criminal cases against her are motivated, false and without any basis, it is obvious that they have been filed with the intention of harassing her further. She has now approached the High Court for quashing of these baseless cases against her. The difficulty faced by women in pursuing criminal cases is illustrated by Susheela’s inability to get even an FIR registered despite intervention from Saheli by way of meeting high ranking police officials, the city Magistrate and letters to the District Magistrate.
The Labour Court
Susheela made a complaint at the office of the District Labour Commissioner (DLC). The issue of the Supreme Court guidelines was raised by Saheli, but the Assistant Labour Commissioner was hostile. He claimed that he had nothing to do with the Supreme Court guidelines and sexual matters are `not applicable’ to his inquiry !! Before our intervention the DLC was ready to close the case, and wait for Susheela to get terminated after which it would become a `proper’ case. Since the DLC’s office is only an arbitration body, it does not have powers to enforce anything. Following our intervention the DLC was compelled to hold another inquiry and bring out a report.
The first time when Saheli met the DLC - a woman, the DLC showed interest in the guidelines, about which she had no previous knowledge.The lack of sensitivity of institutions such the DLC’s office is too well known to need repetition. It is a moot point whether such anti-worker and anti-women institutions can at all help women. The Labour case is usually handled by lawyers who are unaware about the Supreme Court guidelines. In Susheela’s case, her lawyer, despite suggestions from Saheli was unable to creatively interpret and use the Guidelines in the labour case. The judges in the Labour Court, too, are not aware of this judgement, and are not very receptive to women’s perspectives either. In such a situation, there is an urgent need for the role of women’s groups to define.
Susheela’s saga continues, and so does her struggle for justice.