New Delhi: Before the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act of April 2013, there were the Vishaka guidelines passed by the Supreme Court in August 1997. Vishaka not only defined sexual harassment for the first time, but also included a broad sweep of offences from outright sexual assault to sexually loaded comments made in the presence of a woman employee. Relying on multilateral and international treaties such as the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) adopted by the UN in 1979, it placed responsibility on employers to prevent or deter sexual harassment and set up processes to deal with and resolve complaints.
Vishaka acknowledged women as equal citizens in the workplace with equal rights to employment and opportunity. “The fundamental right to carry on any occupation, trade or profession depends on the availability of a ‘safe’ working environment. Right to life means life with dignity,” noted the three-judge bench of Justice Sujata V Manohar, Justice BN Kirpal and the late Justice JS Verma who would subsequently go on to head a committee suggesting legal changes and reforms in the aftermath of the gang-rape and murder of a physiotherapy student in Delhi in December 2012.
In the light of India’s MeToo movement, nearly 22 years after Vishaka and six years after the law on workplace sexual harassment, what are some of the core issues that remain? Is the law working or is it adequate to address the continuing malaise? Justice Sujata V Manohar, the second woman judge after Justice Fathima Beevi to be elevated to the Supreme Court, spoke to IndiaSpend:
India has, in recent months, seen its own MeToo movement where women are naming men who molested or raped them on social media. How do you view this trend?
MeToo is a social movement. It is not a legal movement. It shows that now it is at least possible for women to complain of what they could not in the past because of social pressure and stigma. To that extent it is a sign of empowerment. That’s one way of looking at it. The second aspect is to see it as an attempt on the part of women who have in the past been harassed by men in positions of power to shame them and possibly have some action taken against them.
But, whichever way you look at it, it is not a legal movement and it does not lead necessarily to any action against the man. The idea is ultimately to see that some action is taken, whatever is available under the law.
MeToo has its limitations. A woman can be harassed by someone on the street, for instance, not necessarily by a person with whom she is working. So, it is not an answer to anything. It is only a method of protest against exploitation.
Many high-profile cases filed under the sexual harassment law seem to be floundering. There is a feeling that due process is not working and that very often the legal process itself is a punishment.
This is not a complaint specific to this particular kind of cases. This is a complaint against the criminal justice system. This is a problem with all kinds of offences that are being prosecuted. We need to look at the criminal justice system and work for its improvement--make sure that at the three different stages, cases are properly registered, properly investigated and properly prosecuted. To do so is not just in the interest of women. To do so is in the national interest.
The second aspect is if you have a complaint which is very old, say, something that happened 15 or 20 years ago. It’s difficult to find proper proof in such a case. You may have proof if there’s a contemporaneous complaint. But by and large it is much more difficult to prove something that happened so many years ago and about which you have done nothing for 20 years or so.
Simply because you accuse somebody, you can’t condemn him. That is not a fair system. This is a problem with very old cases where you’ve done nothing for so many years.
Why do you think Vishaka made such a huge impact at the time? Renowned corporate lawyer Zia Modi names it among the 10 judgments that changed India.
The Vishaka judgement made an impact because it touched upon a very basic problem faced by working women. It was delivered at a time when women were working outside their homes in increasing numbers. One of the main obstacles to their economic empowerment was sexual harassment which they could face at the workplace, making it difficult for them to function efficiently or function at all outside their homes.
There is some debate now that the Vishaka guidelines and the law that followed it need to be tweaked.
The law needs to look beyond an old judgment. After all, harassment can take place not just at the workplace. It can be on the way to the workplace, for example, or even your own house. A woman may be stalked by some unknown person. There are all kinds of situations where sexual harassment can take place.
I believe that a good law must be comprehensive. It should deal with different types of situations and how you handle them. We should also take the help of social scientists and psychiatrists and have a comprehensive view of the problem to find out how we are going to tackle it in a court of law. You have to move beyond the Vishaka judgment and do something more.
The law is limited. It deals only with harassment at the workplace. It should deal with the wider issue and also the kinds of punishment that can be given when you prosecute a person. There are different types of sexual harassment from very serious to some not so serious. There are different grades and so we should have different levels of punishment also. It needs a lot more thought.
So you are saying that the law on workplace sexual harassment should not be limited to the workplace.
It should not be limited to sexual harassment at the workplace. It should be sexual harassment anywhere.
Many cases of sexual harassment boil down to a ‘he said/she said’. How does a woman prove sexual harassment which often happens behind closed doors? How do we make it easier for women to report?
There are a large number of offences where this happens. Take murder, for example. You are not going to have eye-witnesses to murder. So, you have to have proper investigations. So also here.
How do you respond to some fears that this law can be misused by women?
Anything can be misused. That does not mean you should not have a law. What you need to do is to try and prevent misuse. You must make sure that false allegations are not made or if they are made that they are detected in time. There must be a fair trial and investigation. If there is a high probability that the man has done it, then action must be taken against him.
Very often, sexual harassment is about the imbalance and abuse of power by powerful bosses against subordinates. How do we ensure that ICCs [internal complaints committees] function impartially so that they are equally fair to the subordinate employee?
You must have an independent investigation. What is your concept of an independent committee? Certainly not someone who will be cowed down by the position of the person involved. In many cases, there is just one boss, so the organisation might be reluctant to take action against him. That is why you have district committees. The in-house procedure is meant for situations where the organisation concerned can take departmental action against an employee or officer who is found to be a harasser. It ensures effective action without the victim woman having to go to court for redressal. Where this is not possible, proper law should be there for redressal.
What is your comment on the fact that the appeal of Bhanwari Devi, the saathin (friend) at a development programme whose gang-rape led to the Vishaka guidelines, is still pending? That Bhanwari Devi herself never got justice in her own case and that four of the five accused men have died of natural causes?
You cannot have any excuse for a non-functional or even delayed functioning criminal justice system.
(Namita Bhandare is a Delhi-based journalist who writes frequently on gender issues confronting India.)
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