Supreme Court's historic 1997 judgement and the 2013 law against sexual harassment at the work place haven't done enough to address deeper systemic problems.
Stories and recollection of the sexual harassment that women suffer broke the news cycle in 2017. For women working in professional work environments in the organised sector, the threat of sexual harassment remains a lingering fear.
Fortunately, our institutions and lawmakers have taken cognisance of the problem and passed orders or framed legislation to deal with it. There is still a very long way to go before these work environments become safer for women.
Here are two major developments in the battle against sexual harassment in the workplace.
Vishaka guidelines, 1997
The Supreme Court of India in 1997 passed the landmark Vishaka judgement, which clearly defined the ambit of sexual harassment in the workplace. It includes the following acts:
“Physical contact and advances; a demand or request for sexual favours; sexually coloured remarks; showing pornography; and any other unwelcome physical verbal or non-verbal conduct of sexual nature.”
It even detailed the requirements of an institutional complaints mechanism for workplaces to deal with these complaints, but without a functioning legislative framework, employers clearly felt less compelled to abide by these guidelines.
Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act
In April 2013, Parliament passed the country’s first law against sexual harassment at the workplace, giving the Vishaka guidelines the necessary legislative underpinning, while expanding its scope.
It extended the definition of sexual harassment beyond the Vishaka guidelines. This includes “presence or occurrence of circumstances of implied or explicit promise of preferential treatment in employment, threat of detrimental treatment in employment, threat about present or future employment, interference with work or creating an intimidating or offensive or hostile work environment, or humiliating treatment likely to affect the lady employee’s health or safety could also amount to sexual harassment”.
Under the law, organisations employing more than ten people are expected to set up an Internal Committee (IC). The IC is required to address complaints and grievances within a stipulated period, and shelter complainants and witnesses from any undue pressure.
Failure to establish an IC or any other provision of the law results in a fine of Rs 50,000. For repeat offenders, the fine gets doubled, and if an employer is convicted of an offence under the act, he shall suffer twice the punishment. Companies are also expected to submit audit reports at the end of the year on the sexual harassment complaints received.
Evidently, this law has had some positive effect on encouraging more women to come out and address their grievances. A recent study on companies in the BSE 100 list has shown that the number of harassment complaints has jumped from 76 in 2012-2013 to 445 in 2016-17.
However, here are two things that India can improve to better address such complaints:
Strengthen Internal committees and hold them accountable
The battle that activists are waging is to ensure that these committees are autonomous (not beholden to the establishment that has set them up in the first place), accountable, easily accessible (encouraging more women to come forward), and make them gender-sensitive.
Who is responsible for making sure that establishments comply with the law? Who is held accountable if its stipulations are not followed or the IC does not redress a particular complaint against anyone in the hierarchy within a strict time frame?
The law does not really assign that responsibility to anyone. Some lawyers working in the field have argued that state governments must monitor these companies and ensure that they are following these provisions. Without any monitoring, these ICs really cannot affect change, unless there is a personal directive from within the organisation’s hierarchy to mandate such checks.
In other words, there are no real institutional mechanisms to ensure that establishments are held accountable. Without a robust IC, all a woman can do is file an FIR with the police and undergo a long-winded trial process.
Desperate need for police reforms
Despite the horrors of Nirbhaya and the anti-rape law that came into place, it is still a frightening reality that complainants continue to suffer victim-blaming, humiliation and distrust at police stations. Without a robust IC in place, the only scope for redress is filing a First Information Report in a police station.
Despite the new law in force, police still avoid or refuse to file FIRs, especially if the complainant comes from a socially or economically marginalised society. Failure to register an FIR on a complaint of sexual harassment should legally send the offending policeman to jail for a maximum two years. However, it’s nearly impossible to find any record of a police personnel being charged under this provision.