The last two weeks in India have been jolted by allegations of sexual harassment, molestation, stalking and sexual assault levelled by women from various fields, especially in media, entertainment, and even IT companies against men in high and powerful positions. It is evident that neither Vishaka guidelines nor The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (‘SHW Act’) were followed by the organisations, as most of the complaints were either not investigated properly, or women could not complain.
There was no attempt to dismantle the ‘boy’s club’ that prevails in most work settings in India. While some actions seemed to have been taken with people being asked to resign or enquiry being constituted, there is a fear of backlash against the women who complained and that backlash already started, with Alok Nath filing a defamation suit against Vinita Nanda or M J Akbar threatening to take legal actions. In this context, it is important to know what legal options are available for women complainants. Sexual harassment at workplace was first recognised in 1997 when the Supreme Court passed the landmark decision in Vishakha vs State of Rajasthan [1997 (6) SCC 241], wherein sexual harassment at workplace violated the fundamental rights of equality, non-discrimination, freedom of profession and dignity of women guaranteed under Articles 14, 15, 19(1), and 21 of the Constitution..
The Court directed the setting up of complaints committee in all organisations, which are not covered by the civil service conduct rules, and investigate complaints of sexual harassment. Thereafter, gradually civil service conduct rules began to include sexual harassment as misconduct and provided procedure for disciplinary action against those employees found guilty of sexual harassment. In 2013, the Parliament passed the SHW Act, which provided for establishment of Internal Complaints Committee in all organisations (with more than 10 employees) that would enquire into such complaints. It defined ‘sexual harassment’ in a broad fashion to cover myriad forms of such conduct, and provided that a complaint could be made within three months of the incident or the last incident, and if necessary, an extension of three months could be given.
The ICC then would conduct an investigation into these allegations, with both the complainant and the Respondent having an opportunity to produce documents, and cross-examine witnesses, if any. The ICC then has to finish its enquiry within 90 days and submit its recommendation to the employer. As is evident, the ICC procedure is at the heart of the SHW Act, and it is where the employers fail the women most. The composition of ICC is such that it ought to be presided by a senior woman employee, half of its members should be women, and an external representative from a NGO or women’s group. The idea of an external representative is to check the institutional bias of ICC, and it is critical that the external member is aware of her role on the ICC. In my experience, most ICCs are neither trained in the Act, nor aware of the critical role they play in the implementation of the law.
They are also not sensitised to the issue of the nature of sexual harassment that it does not lend itself to traditional proofs, ie, eyewitness accounts or documentary proof. The Act lays lot of emphasis in the training of ICC members, apart from training of the employees on the SHW law, which is sorely lacking in the functioning of most ICCs. Besides SHW Act of 2013, the Parliament also enacted Section 354A, Indian Penal Code, 1860 in 2013, vide the Criminal Law (Amendment) Act, which introduced a law on sexual harassment, whether or not at workplace, which makes it liable for punishment ranging from one year to three years’ imprisonment, and fine. One of the biggest legal impediments is that of delay in reporting these allegations.
Any offence, which is liable for punishment exceeding three years’ sentence, is not covered by statutory limitation. In other words, any woman who has suffered rape or sexual assault long back can still lodge a criminal complaint against the alleged harasser, and start an investigation. In terms of recent cases, the ICCs can take note of these allegations, and institute an enquiry, even if the complaint is dated. One can also file a criminal case under Section 354A, IPC if the incident is a recent event. Last week, Maneka Gandhi, the Union Minister for Women and Child Development, announced the setting up of a committee with jurists and lawyers to investigate into these allegations, but the modalities and the powers of the committee are still unclear.
And most importantly, it is not clear whether it would enquire into all complaints or the egregious ones. The way forward is bumpy, and could be long winded. What last weeks have shown is that women would not tolerate inappropriate behaviour or sexual misconduct or sex stereotyping, and the onus is on the employers and the management to ensure that there is no sexual harassment at workplace. It cannot be ‘business as usual’. It is a much-needed purge. Let it happen. The churning will hopefully result in safer and respectful workplaces for women, and even for men.
Amritananda Chakravorty is a leading Delhi-based advocate and human rights lawyer. The views are personal.