The Vishakha guidelines (1997) affirmed that sexual harassment of women was common and resulted in violation of their fundamental rights to life and liberty guaranteed by the Indian Constitution. The Apex court specified that the guidelines would be binding and enforceable on all employers until the Indian Parliament enacted suitable legislation to replace them. Looking at the dismal and faulty implementation of the Vishakha guidelines, fourteen years later a Joint Parliamentary Committee (2011) recommended a special law safeguarding rights of women at workplace. The Committee concluded that given the patriarchal nature of Indian society, the number of women needing redress from sexual harassment at workplaces was high.
Prolonged struggle and dialogue by the women’s movement with the government for more than a decade resulted in enactment and enforcement of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 on 9th December 2013. Prevention, prohibition and redress of sexual harassment are the key features of the Act. As the title suggests it is a gender specific legislation recognising unequal gender relations at workplaces. It is therefore an explicit form of affirmative action under Section 15(3) of the Indian Constitution, which allows the State to enact special laws for women. Though the Act appears to be an extension the Vishakha guidelines (1997), spirit of Vishakha is visibly amiss. Nonetheless it has given rise to hopes as it is seen as a concrete step by the government towards dealing with the problem of sexual harassment. This article is based on the argument that unless certain unclear areas in the Act which have potential to influence its implementation in coming years are interpreted from the perspective of constitutional equality and contextualised with the struggle from it emerged with a pro woman understanding, the Act it will remain a token gesture and never be able bring about desired change in the position of women in relation to work.
Meetings of the Internal Complaint Committees (ICC)…..should they happen regularly?
Kapur (2013) states that the Vishakha guidelines envisaged a complaints committee that built ownership towards the issue with enhanced experience and expertise. However in the post Vishakha era, there was little effort both by the employers and the complaints committees to create awareness regarding the issue and the complaint mechanism. This resulted in underreporting of sexual harassment complaints. Studies across India done in the nineties and next decade by Saheli (1998), SARDI (1999), Sanhita (2000), Sakshi (2001), Lawyers Collective-ILO (2002), Yugantar (2003) confirmed this scenario. These studies brought forth that sexual harassment went largely unreported due to fear of stigma, loss of reputation, victim blaming, and disbelief in the complaints. Amongst all the other reasons the studies identified, poor levels of awareness amongst women as one of the key reasons. Centre for Transforming India study (2010) showed direct connection between lack of knowledge about the complaint mechanism within the organisation amongst women and low reporting of sexual harassment. The study concluded that poor levels of awareness about redress mechanisms amongst women were a critical challenge in reporting of sexual harassment. Post enactment of the law this situation can undergo a change if the employers and the ICCs are proactive. In this light, it is important to discuss functioning of the Internal Complaints Committee (ICC).
Section 4 of the Act mandates constitution of an ICC by the employer at every workplace by a written order. ICC is the principal mechanism having power and authority of a civil court for resolution of complaints through conciliation and inquiry. With such vast powers vested it is clear that the ICC has a crucial role to play in prevention and redress of sexual harassment. One of the major gaps that the Act creates in the context of the working of the ICC is that it does not specify frequency and number of meetings for the ICC. A misinterpretation could be that, the ICC needs to meet only after a complaint is reported to it. Consequently if no complaint is received then the ICC members will never come together and will have no role to play in the implementation of the Act. Such an interpretation is detrimental for the organisation in the long run as it will result in the ICC remaining only on paper thereby losing its significance and visibility to the employees. It needs to be understood that the ICC has a vital role to play in the implementation of the law. Section 13 (a) of the Rules mandates every organisation to have a policy on sexual harassment and carry out wide dissemination of the same. In the context of this provision, the ICC members are keepers of the policy who will ensure its efficient implementation. In fact sexual harassment policy of the organisation needs to set out the roles and responsibilities of the ICC from firstly from the prevention perspective and lastly in the context of redress. Expected outcome is that the ICC members will then be able to reach out to the women in the organisation and build rapport with them. Sustained dialogues between the ICC and women will instill confidence in women for them to report sexual harassment without facing the hassle of not knowing the avenue to report sexual harassment. Such an exercise will not only help the ICC members to gain visibility but make their existence in the organisation prominent. Therefore from the prevention point of view, it is essential that the ICC meets at regular intervals for it to become face of in house awareness campaigns on sexual harassment leading to effective compliance of the Act. It is only if the paradigm shifts from mere existence of the ICC on paper to becoming a dynamic body that vigorously espouses prevention, mindsets can undergo a change and systems can become sensitive to women.
Presence of the External Member….is it needed every time?
The Vishakha guidelines (1997) innovated by directing the employers to include outside member in the complaints committee. The Apex court highlighted that the purpose was to avoid pressure or influence on the committee from the senior levels within the organisation. It is obvious from studies that employers often resist the induction of an outside member as they perceive sexual harassment to be an internal matter (Lawyers Collective-ILO, 2002; Chaudhuri, 2008). Chaudhuri (2008) further explains that presence of the external member is seen as interference in internal matters of the organisation. Consequentially calling the member for meetings is thus at the discretion of the organisation. In the context of the new law it is important to emphasise and highlight role of the external member within the ICC.
In the Act, Section 4 of the Act necessitates appointment of an outside member with the ICC. However Section 7 of the Rules does not mention mandatory presence of that member as part of the quorum for the ICC meetings. This is glaring loophole in the Act which can be manipulated by employers to suit their vested interests. There is a visible danger that though outside members will be mandatorily appointed with the ICC as per the Act, employers can choose to exclude the external member from certain key meetings of the ICC especially the case hearings. Absence of a third party member in a committee totally comprised of insiders could lead to lack of credible and fair hearings. This will prove to be injurious to the inquiry process and interest of the complainant. Therefore it is important that the composition of the quorum is done not on the basis of one particular Section, rather taking into consideration spirit of the Act. Appointment of an external member with the complaints committee that originated in the Vishakha guidelines (1997) has been retained in the current law, it can be inferred that presence of an external member adds value to the ICC. Moreover it plays a key role in ensuring reasonable hearing and infuses confidence in the complainant. Pressure to resolve the complaint in a time bound and confidential manner is one of the other crucial functions performed by the outside member. Kapur (2013) stated that the third party member brings in knowledge, skill and capacity to ensure that the processes are done in a professional and unbiased manner. Furthering her argument it can be said that deleting presence of the external member as part of the quorum directly damages chances of a gender sensitive hearing and decision making in cases. Therefore mandatory presence of an outside person during the ICC meetings needs to be acknowledged and included within the sexual harassment policy of the organisation.
Acts of Sexual Harassment and Hostile Work Environment….How can they be connected?
Studies cite fear of retaliation in the form loss of income, dismissal from employment, blocking of promotions, defamation, threat from the harasser and other such reasons as some of the key reasons for not reporting sexual harassment (Chaudhuri, 2006; Centre for Transforming India, 2010; Yugantar, 2003). It is evident that women continue to bear the sexual harassment in silence due fear of revictimisation from the employer and the harasser. To tackle this issue of creation of hostile work environment, the Vishakha guidelines (1997) directed employers to provide appropriate work conditions for all women employees. In the current law, Section 3 (2) introduces the concept of hostile work environment by linking it to the acts of sexual harassment thus making it a part of the definition of sexual harassment. However concept of hostile work environment within the Act remains limited to the one to one acts of sexual harassment. It fails to establish connection with the overall environment within the organisation from the prevention perspective. As a result of this, liability on the employer to build safe working environment can be severely hampered. Here it needs to be understood that, there could be sexually hostile working conditions in both verbal and non-verbal which may not be directed towards a particular woman. Yet they could create discomfort amongst many women at the workplace. Therefore it is important that the understanding hostile work environment is expanded and extended to the work culture within the organisation from the prevention angle. For this purpose sub section (1) of Section 3 of the Act which states that the employer needs to ensure that no woman is subjected to sexual harassment at workplace should be connected to the section that talks about hostile work environment. It is needed that both sections are read together to understand that onus is on the employer to provide safe work environment for women to work without discomfort. Therefore it is necessary that the organisation policy takes note of complaints which are general in nature. This can be done by the Human Resource department and the ICC by making use of both formal and informal sensing mechanisms such as surveys, group discussions, complaint box etc. with the help of which information about atmosphere prevailing within organisation can be gathered for prevention campaigns to be designed.
Reporting of complaints to the police by the employer….is it mandatory?
Chaudhuri (2008) says in reported cases of sexual harassment position of the harasser has distinct influence not only on the inquiry process but on recommendations of the complaints committee and subsequent action by the employer. She further states that higher the position of the harasser in the organisational hierarchy more are the chances of him getting away on the pretext of his services being indispensible. In such situations where the internal mechanisms are discriminatory, it is critical that the complainant has an alternate avenue for registering her complaint. As per the Act, reporting to police is left to the choice of the complainant. However Section 19 of the Act states that it is duty of the employer to provide assistance to the woman only if she chooses to report to the police or to register the complaint with police especially if the perpetrator is a third party.
Since the Act emphasises of creation safe working environment, the complainant cannot be left in a state of unawareness and ignorance. It is for the Human Resource Department and the ICC to respond proactively. It is their prerogative to take initiative in informing and educating the complainant about her rights. Members of the ICC can engage with the woman to make her aware about the plausible alternatives and help her make an informed choice for redress of complaint. Such interactions with the women can be specifically carried out with the help of the external member appointed with the ICC. It can be said that this part of the law needs broader interpretation in the interest of the complainants. It is needed that the employers recognise right of women as citizens and do not treat the complaint as a private matter to be dealt internally. The policy on sexual harassment needs to clearly specify employer position, where procedure of educating the woman about various redress alternatives available to her within existing laws is clearly laid down.
How do we move ahead?
Social legislation are an active process of preventing or changing wrong course in society with an aim to empower groups who are disadvantaged due to certain disenabling factors (Fairchild, 1944; Gangrade, 1978). In case of such legislations it is important to understand its background and evolution. It is crucial to understand that the current law on sexual harassment is an outcome of long standing struggle by the women’s groups and organisations towards realisation of right to work with dignity. Any interpretation of the law devoid of a pro woman perspective can become counterproductive. It is required that the law is interpreted and understood within the framework of their fundamental rights guaranteed by the Constitution to women and the larger perspective of human rights of women. It is only after this perspective is instilled that we will be able to effectively implement the law. This will motivate women to complain of sexual harassment without having fear of retaliation and lead to creation of workplaces free from sexual harassment. In conclusion, the newly enforced law on sexual harassment definitely has the potential to carry forward the process of shifting power relations at work initiated by the Vishakha guidelines (1997). This can happen provided the employers implement the Act from the standpoint of responsibility and not duty. As stated by Douglas (1993) only if we are seriously committed to ending the widespread violence and injustice in society at individual, collective, and institutional levels, then the structures and forces which maintain and reproduce a patriarchal system will be contested and transformed.