19 Oct 2018 11:12 AM GMT
Be it a spontaneous overflow of suppressed psychological and emotional trauma or a practical manifestation of ‘the theory of contagion’, the ‘#MeToo movement’ has come to stay in India.Bedeviled by a puritan conscience, while legislators, progressive members of the executive as well as members of the legal fraternity of the country have made common cause with the victims of...
Be it a spontaneous overflow of suppressed psychological and emotional trauma or a practical manifestation of ‘the theory of contagion’, the ‘#MeToo movement’ has come to stay in India.
Bedeviled by a puritan conscience, while legislators, progressive members of the executive as well as members of the legal fraternity of the country have made common cause with the victims of sexual assaults and harassment at the hands of their predators, there is a growing perception and fear that the Indian legal system, as it exists today, is extremely inadequate to meet the new challenge and unless immediate legal and social engineering is undertaken the movement may peter out like a sunset fabric seen for an hour in the evening and then fading into the night. Indian democracy, with its emphasis on rule of law and open society, cannot afford such a luxury. There is therefore, an urgent and pressing need for a comprehensive social and legal engineering.
The existing laws in India relating to sexual harassment of women at workplace is to be found in ‘The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.’ The said law, which was heralded with much fanfare, has proved to be extremely in adequate to meet the new challenges as section 9 of the said Act prescribes a period of limitation for filing a complaint and the power of the committee to condone the delay is also limited. The said section of the Act is quoted herein below:-
“Section 9 - Complaint of sexual harassment
(1) Any aggrieved woman may make, in writing, a complaint of sexual harassment at workplace to the Internal Committee if so constituted, or the Local Committee, in case it is not so constituted, within a period of three months from the date of incident and in case of a series of incidents, within a period of three months from the date of last incident:
Provided further that the Internal Committee or, as the case may be, the Local Committee may, for the reasons to be recorded in writing, extend the time limit not exceeding three months, if it is satisfied that the circumstances were such which prevented the woman from filing a complaint within the said period.”
Sadly, the act contemplates only an inquiry and the procedure to be adopted is as provided under the Code of Civil Procedure. Section 13(3) of the Act further provides that when the committee arrives at a conclusion that the allegation against the respondent has been proved, it shall recommend to the employer and the District Officer as the case may be.
“(i) to take action for sexual harassment as a misconduct in accordance with the provisions of the service rules applicable to the respondent or where no such service rules have been made, in such manner as may be prescribed;
(ii) to deduct, notwithstanding anything in the service rules applicable to the respondent, from the salary or wages of the respondent such sum as it may consider appropriate to be paid to the aggrieved woman or to her legal heirs, as it may determine, in accordance with the provisions of section 15”.
The Act therefore, apart from being predominantly in the realm of service jurisprudence cannot be of any assistance to the victims on account of the provision of limitation contained therein.
In so far as the Indian Penal Code is concerned, no doubt by way of the Criminal Law Amendment Act, 2013 Section 354A has been inserted to tackle the menace of sexual harassment and the said offence has been made punishable with imprisonment which may extend to three years. However, it is well known that in criminal matters the process is the punishment and since no time period has been prescribed for completion of investigation or trial of such offences, unlike child rape, there is every likelihood that the complainant would be at the receiving end and is most likely to abandon the proceedings after some time.
Unfortunately, in India we do not have a system of Grand Jury or a Petite Jury to return an indictment at the threshold stage, pending trial, for offences committed 10 to 14 years back as has been done in the case of Bill Cosby and Harvey Weinstein. The Indian law therefore, needs to provide, as in a case of child rape, a time frame for completion of investigation and prosecution of these offences so that the offenders are brought to book at the very earliest. Procedural law, as well as substantive law, needs to be amended.
A holistic analysis of the ‘#Me too movement’ also reveals that there are broader patterns of ‘sexism’ and ‘discrimination’ which needs to be addressed also. These acts are not confined almost exclusively to sexualized forms of harassments, verbal and/or physical. Few reports have covered the non- sexual but still utterly sexist form of abuses indulged into by bosses at the workplace. For instance, it is reported that Harvey Weinstein use to heap abuses upon his agent Zelda Perkins chiding her that women were unfit for sensitive jobs and were made by god only to bear children. Examples of such harassments are galore in India.
Disappointingly also, we in India are yet to pass any legislation making sexual harassments of members of LGBTQ an offence even though as far back as 1998 the Supreme Court of United States of America in the case of Oncale V. Sundowner Offshore Services, Inc. has unanimously held that ‘same sex’ harassment is also actionable as it violates article VII of the Civil Rights Act, 1964.
It needs no mentioning that we as a society, must be more willing to acknowledge sexual abuse and talk about it honestly and directly, just as we do in other forms of abuse, like rape, without a sense of denial, shame, or discomfort. Organizations should hold harassers accountable for sexual misconduct/indiscretion just as they do in other forms of mistreatment and discrimination, without excusing it as a personal predilection or a perk/privelege of the powerful. Victims of sexual harassment should always take heart from the example of Susan Anthony of USA who braved prosecution and trial to support her contention that women have legal right as citizens to vote. She finally won. Our Nation has to think about the greater good of humanity, of womenhood for whom the bell tolls also. No ad hocism, cosmetic changes, or half measures will suffice. Our constitutional morality teaches us that delay should not defeat justice.
Jana Kalyan Das is a Senior Advocate at Supreme Court of India.
[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]