Working Out The Tensions. New Law/s on Sexual Harassment at the Workplace
working out the tensions
LOOKING AT THE NEW LAW(S) ON SEXUAL HARASSMENT AT THE WORKPLACE
Newsletter Sept 2013-Aug 2014
In addition to the CLA, the former UPA-led government passed the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act (SHWW), 2013 in Parliament. The law came sixteen years after the landmark Supreme Court judgment in the Vishaka case that first gave a legal name and recognition to what was till then flippantly called ‘eve teasing’ . In the interim as countless individual women and women’s groups used these guidelines to seek justice, we put the legal definition of ‘sexual harassment’ to test, questioned what constitutes a ‘workplace’, who is considered a ‘worker’ and developed a nuanced understanding of the various kinds of hierarchies that operate in these contexts, and how they need to be counteracted if women are truly to have safer workspaces.
At Saheli, our engagement with these questions dates back to the rape that Bhanwari Devi of Bhateri village was subjected to in the course of her work as a government Women’s Development Programme worker in Rajasthan in 1985. What started as support to Bhanwari in her struggle for justice grew into an extended involvement with the arrival of the Vishaka guidelines. In 1998, we did a survey with women working in different sectors which resulted in a report titled, ‘Another Occupational Hazard’. The findings of this were further developed into a play titled ‘Mahaul Badalna Hai’ that we have performed and followed up with impassioned discussions more times than we care to count. This period was also marked by us being active on complaints committees and dealing with individual cases, with varying degrees of success and frustration.
During the last few years there have been several efforts to convert the Vishaka guidelines into a law, a move that we did not welcome, primarily because we were of the opinion that the guidelines should run their course; and we should have time to consolidate our reservations and build strategies to plug the gaps that we kept encountering while working on cases. But these processes have a momentum of their own and in due course we felt compelled to get involved in working with the NCW, the Parliamentary Sub-Committee and other bodies in these efforts.
In its avatar as a law, the SHWW provides women civil redressal for the crime of sexual harassment at the workplace (while the CLA treats sexual harassment as a criminal offence), so women continue to have recourse to both, civil and criminal courses of action, within a 3-month window (read ‘deadline’) from the incident. The law is applicable to any organisation with more than 10 employees, and employers failing to constitute a Complaints Committee may be fined upto Rs 50,000, and repeated violations could lead to a cancellation of the business license. (But the law sets out no ‘deadline’ for this!)
After relentless lobbying from women’s groups, the new Act has expanded the definition of workplaces to include the domestic space, thus bringing domestic workers into its protective ambit. It also now includes other women in the unorganised sector and sets out mandated mechanisms for redressal such as Local Complaints Committees to be set up by District Officers. Such Committees will address complaints from workplaces with less than 10 employees and where complaint is against employer. These Committees are also authorized to forward complaints by domestic workers to the police if a prima facie case exists. Consequently, the police is mandated to file a complaint, investigate and take action. While on paper these recommendations sound promising, Flavia Agnes worries that these Local Committees may fall prey to bureaucratic and political control. “There will be a lot of competition at the Taluka level, the local politicians and bureaucrats will dominate. There is no way anybody else from civil society will get into that and even if people from Trade Union etc., do get it, one cannot vouch for their sensitisation... [that] should be the role of the Ministry of Women and Child, or Labour Ministry... Only then we can hope something may emerge.”
The law also grants Complaints Committees the powers of a civil court: examination of a person under oath, and the discovery and production of documents. Based on the hearings, the Committee can also suggest conciliation and order compensation. The last of these is a troubling provision likely to pressurise more and more complainants into accepting ‘conciliation’ which in practice is most often a ‘compromise’, even if what the woman seeks is ‘justice’.
Patriarchy strikes back even through the new law.
Then there is Section 14, the clause in SHWW that provides for ‘punishment for false or malicious complaint and false evidence’ by women. As we have consistently argued before, this is nothing but a chilling clause meant to dissuade women from even filing a complaint for fear of not being able to prove it on the basis of hard evidence. Such a clause strikes at the heart of a problem of litigating crimes like sexual harassment that most often occur in private, with no witnesses to back the complainant. What is most likely to happen is that any case that is not ‘proven’ will be treated as ‘false and malicious’ and serve to victimise the woman further! In addition, it will add to the ‘false and malicious’ public discourse about the misuse of pro-women laws, an attitude we are seeing in ample evidence in the most recent rulings of several courts, including the Supreme Court, on cases relating to Domestic Violence and Section 498A!
The evidence of vested parties using this clause in extremely damaging ways is already in. Consider for instance, the invite for a symposium organised by the Corporate Knowledge Foundation in Gurgaon (following what they term “the grand success of four knowledge events on the same theme in Delhi, Gurgaon and Mumbai”) that states “the objective of the symposium is to enlighten not only the female employees but also business owners, management and law professionals, HR managers about the provisions of the Act and how to deal with false and malicious complaints.” The writing on the wall is clear!
In addition of course, are our perennial concerns around implementation of the law. What could be starker than some of the most recent cases of sexual harassment that have occurred in legal workspaces themselves? Illustrating only too well how the judiciary and courthouses that are meant to implement such laws, seem incapable or uninterested to do so. After all, this is the same world in which 63 women lawyers of the Supreme Court had to petition it to set up a Complaints Committee mandated by it to the rest of the country! The cases cited in the boxes alongside reveal other seamier sides to the courts as workspaces for women.
WHO WILL JUDGE A JUDGE?
The Justice Ganguly Case. On November 11, 2013, a law student blogged about being sexually harassed while interning with a retired judge of Supreme Court. On December 16, 2013, Additional Solicitor General Indira Jaising released the woman’s affidavit to the media (with her consent), naming Justice (Retd.) A K Ganguly as the accused. As was inevitable, a media storm ensued. That Ganguly was by now the Chairperson of the West Bengal Human Rights Commission (WBHRC) raised many additional ethical and moral questions. But among the first to rush to Ganguly’s defence was former Speaker of the Lok Sabha, Somnath Chatterjee!
In a letter titled “Ganguly Must Go!” women’s groups (including Saheli) said “this is not merely inappropriate behaviour by a senior over junior staff or interns; it is not merely a friendly overture: such acts constitute a clear case of abuse of power” and cited a Committee of three judges of the Supreme Court that concluded that the statement of the intern, “prima facie discloses an act of unwelcome behaviour (unwelcome verbal/non-verbal conduct of sexual nature)”. We also argued that Ganguly’s refusal to step down from his position at the WBHRC puts “the credibility of the institution is itself at stake, and the message communicated is: women’s rights do not matter.” Yet, for weeks, the man in the eye of the storm refused to react, finally resigning from the WBHRC only in Jan 2014.
Then suddenly in July 2014 news reports suggested that the woman was reluctant to make a statement to the police, precluded the case from being pursued. BJP leader Subramanian Swamy, promptly accused the media for tarnishing the reputation of a person holding an important office! However it soon became clear that this was nothing but a misinformation campaign that twisted the fact that the woman only wished to pursue a civil case against Ganguly. In fact, she has consistently maintained on her the blog that she only came out with the case because she felt she “had the responsibility to ensure that other young girls were not put in a similar situation.”
Justice Swatanter Kumar Case. Amid the hype around the Ganguly case, another case came to light. A law graduate working with another retired judge of Supreme Court, Justice Swatanter Kumar between May-June 2011, informed the media that through gestures, actions and suggestive conversations, Kumar had imposed unwanted intimacy and physical contact upon her. As expected, Kumar retorted that the accusation was merely an attempt to harm his long standing reputation. He then went further with his offensive and filed civil and criminal defamation suits for Rs 5 crores against media houses like Indian Express, CNN-IBN and Times Now, and managed to get a court order restraining the media from publishing content that highlighted the allegations against him, or even his photograph, though ‘fair reporting’ of court proceedings was allowed. Consequently, the entire attention of the media remained focused on Ganguly and Kumar managed to stay under the radar.
But the young graduate continued her fight. Fearing bias in the Delhi courts because Kumar wields “immense clout over the Bar and bench”, she petitioned the High Court to shift the hearings to Bangalore. She said “It’s an unequal fight... I am hopelessly in a subordinate position.” Her lawyer, Indira Jaising in an appearance in the Supreme Court went on to tell the bench headed by Chief Justice of India, RM Lodha, that Kumar had hired “24 lawyers of the Supreme Court, that is almost all of the senior lawyers some of whom are government’s law officers” including the now Attorney General Mukul Rohatgi! Yet hope lies in the fact that on 24 July 2014 the bench has promised the intern justice.
SUBVERTING THE POSSIBILITY OF JUSTICE
The Tis Hazari Case. On May 22, 2014, a 38-year old Naga woman was harassed at a metro station by a lawyer who practised at the Tis Hazari District Court in Delhi. When she confronted him, she was further assaulted. The crowd who witnessed these events finally caught the molester and handed him over to the police.
The Delhi Legal Services Authority assigned a woman lawyer to the victim. When the two of them entered the court premises, they faced a hostile gang of lawyers who threatened them to withdraw their case. But they had a number of Naga friends and supporters with them, and remained, undeterred, for almost the whole day in court, waiting for their case to be heard. But just before the matter came up, despite the presence of the police, the friends and lawyer of the accused attacked them. The President of Naga Students Union Delhi was slapped in front of the Magistrate. Members of another group from the north east, Zeliang Rong were also attacked and one young man was severely injured. As they all scattered for safety, some of them called an advocate friend (a woman from Arunachal Pradesh), hoping that since Tis Hazari was where she practiced, they might be safer with her around. But she too was intimidated and mocked by the crowd, threatened that her enrolment in the Courts would be cancelled and her practicing license taken away! The situation was so volatile that the victim, her supporters and lawyers were compelled to take refuge in the Tis Hazari Police Chowki. After some time, when the police thought it was ‘safe’ for them to leave, they stepped out only to discover the crowd had grown manifold. The men were chased well out of the court premises while the woman advocate from Arunachal was beaten by members of the mob which cursed them with derogatory, racist language calling them “Saale Chinki” and other such epithets, and threats to chase them and every North Easterner out of Delhi.
The rage and fear generated by these events was huge. Protests were organized in front the Sabzi Mandi Police Station that very night, followed an enormous rally to Bar Council of India on 27 May, 2014. The protestors raised the slogans that “Law Guardians turned Criminals” “Stop Racism”. They demanded a Bar Council enquiry into the incident and the cancellation of licenses of the guilty lawyers.