Sexual Harassment at the Workplace: Extending the Debate
Ayesha Kidwai teaches at Jawaharlal Nehru University, Anubhuti Maurya teaches at Delhi University and Albeena Shakil, a former President of JNU Students’ Union, is a political activist.
On 3 September 2012, the Lok Sabha passed the ‘Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2010’, a full fifteen years after the Supreme Court (1997 Vishaka vs. State of Rajasthan). The Vishakha judgement was revolutionary in mandating the formation of committees against sexual harassment in all workplaces and placing upon the employer the responsibility of providing an environment free of sexual harassment, hostility and intimidation for women. In the Lok Sabha, the Bill was passed without any discussion, and will now be placed before the Rajya Sabha. This Bill must be thoroughly debated, as there are a number of provisions that need revision.
Although the existing Bill goes a long way in implementing the spirit of Vishaka, most notably in making the institution of complaints committees in government, private, organised, and unorganised (including domestic workers, but still excluding other sectors like home based work, NREGA, agricultural work, etc.) sectors mandatory by law, in introducing penalties for employers that fail to comply with the provisions of the Bill, and in according a legally binding status to complaints committee recommendations.
While welcoming the Bill women’s groups have already noted with dismay the fact that the Bill still leaves out numerically significant sectors of female employment. Women’s groups have also objected to the provision of punishment for false or motivated complaints which is sure to act as deterrence, and to Clause (16) that seeks to protect the identity of a respondent even after the establishment of guilt. To these objections we add some more, deriving from the experiences of the longest serving committee against sexual harassment in the country, i.e., the Gender Sensitization Committee Against Sexual Harassment (GSCASH) of Jawaharlal Nehru University, functional since 1999.
The Bill makes provision for an Internal Complaints Committee (ICC), wherein all members including one senior presiding officer, two employees and a third-party NGO/association are to be nominated by the employer. Given the stranglehold that the principles of chain of command have on relations in the workplace, anti-sexual harassment committees must dispense justice in direct opposition to these workplace hierarchies. In instances where senior employees, or even employers, commit the human rights violation of sexual harassment, a nominated handpicked committee is easily susceptible to manipulation. The Bill’s naïve faith in the employer’s willingness to appoint a responsible and responsive committee is the same that beset the Supreme Court in Vishaka, and has been the single greatest hurdle in the redressal of complaints.
Therefore, while the Bill must make employers liable for the institution of ICCs, no single employer should be allowed to pick and choose the entire committee. The process of appointment of the Committee must involve concurrence by the employees association or any other such body. In JNU, the committee comprises of elected representatives from all sections of the university community – teachers, students, officers and karamcharis – so that the composition of the committee is independent and free from pressure from senior levels. The election process additionally becomes the widest sensitization campaign against sexual harassment each year. While elections may not be a viable option for all workplaces, this option must specifically be mentioned in the Bill as a possible one. Furthermore, more explicit conditions on which person may be eligible for appointment to such Committees are needed – while the current Bill lists many grounds for the disqualification of a member of the ICC, the most important ground of being implicated, directly or indirectly in a complaint of sexual harassment is not included!
Instead of recognising that sexual harassment is a violation that is predicated upon the exercise of institutional power, the present Bill institutionalises workplace-based hierarchies as the principle by which ICCs may function, by mandating inquiry by an officer sufficiently senior to the person against whom a complaint has been made. The experience at JNU has shown that not only does the sheer volume of complaints make this clause untenable, it is also essential that enquiry committees include representatives of ‘junior’ levels to mitigate the effects of hierarchy. Moreover, as the ICC is itself not the disciplinary authority – that action must be taken by the employer – this provision is simply unnecessary. In our submission therefore, the authority and independence of the committee must be derived from law, and not the workplace position of the committee members.
The Bill makes provision for ‘legal heirs’ to make complaints in case of the ‘physical or mental incapacity or death or otherwise’. The presumption that in a workplace only ‘legal heirs’ would be allowed to stand up for a woman’s dignity is not only outdated, but also not in keeping with the nature of the workplace, where it is often colleagues or friends who are the bedrock of support to the complainant. The Ruchika Girhotra case is a current example of a sexual harassment case wherein the complainants are not legal heirs of the victim, but her friends. The provision for ‘third party’ complaint must therefore be included in the Bill.
Clause (10) of the Bill mandates that the first step in event of any complaint of sexual harassment must be to settle the matter between the aggrieved woman and the respondent through ‘conciliation.’ Once a settlement has been reached, the Bill requires that ‘no further enquiry shall be conducted by the Committee’. Settlement through ‘conciliation’ and ‘crisis-mediation’ are two entirely different concepts, but unfortunately the Bill replaces one for the other. Can a mere complaint be a basis of reconciliation? Surely the basis and terms of any settlement can only be determined by first establishing that an act of sexual harassment took place, and the extent of its nature and severity.
While there has been some debate on the unfairness of this provision, such expressions of outrage have usually been expressed from the respondent’s point of view. In fact, the provision has greater peril for aggrieved women, as it can be used to ‘disappear’ complaints of sexual harassment as soon as they are filed. Given that ICCs in the Bill are handpicked by employers from ‘senior’ levels, it is quite likely that aggrieved women will feel compelled to accept the conciliation option. As the Bill does not specify whether the request for reconciliation by the aggrieved woman is to be made in writing, the nature of workplace hierarchies will ensure that in most cases, complaints of sexual harassment will be eliminated by this procedure. At the very least, this choice of reconciliation as the first procedural step can be construed as an attempt to frame sexual harassment within the familiar trope of ‘mistake’ rather than as ‘offense’ or ‘crime’, as the basic premise of a conciliation procedure is that grievances exist on both sides.
Finally, through this provision, the Bill creates hostility for women complainants by turning reconciliation into a normative and foremost expectation of law. As per the Bill, it is only upon refusal to reconcile or non-fulfillment of the terms of the settlement, that an inquiry would be initiated – a provision that stands in direct contravention of the fundamental spirit of the Vishaka judgement. Those guidelines invested employers with the duty to provide an instrument for the official acknowledgement of sexual harassment in the workplace and to officially and publicly act against such violations, for it would be these steps that would assure other women workers that employers are committed to their safety, security and dignity. Since the Bill mandates complete silence on the part of employers on all matters pertaining to sexual harassment by Clause (16), employers have now been empowered by this Bill to routinely violate the basic spirit that should underlie any sexual harassment legislation.
Procedures for Enquiry
The Bill is extremely weak in laying down procedures for the enquiry and redressal of complaints of sexual harassment, notwithstanding some hand waving at the Civil Procedures Act.
As per Clause (12), during the pendency of the inquiry an aggrieved woman may be allowed take transfer or leave upon her request. While this provision is necessary, this is not the sole means to guarantee the complainant protection from a hostile work environment, and a free and fair enquiry. Certain cases may in fact merit the respondent’s removal from the workplace through transfer, compulsory leave or suspension pending inquiry, which are all routine measures in other domestic proceedings. The absence of the aggrieved woman from her workplace, which is the site of both her evidence as well as witnesses, may make it more vulnerable for manipulation.
Moreover, as is seen in almost all reported complaints of sexual harassment, complainants and witnesses are almost always approached by relatives or friends of the respondents to effect a withdrawal of the complaint. Direct threat and intimidation to the complainant or her family or friends are also frequently made. Keeping these facts in mind, the JNU GSCASH makes a provision for an order of restraint with regards to (direct or indirect) contact with the complainants, her family, and witnesses. Both parties are also bound by an oath of confidentiality. The rules of GSCASH explicitly state that violations of the restraint order are to be reported to the Enquiry Committee, and that such violations if proven, will be added to the list of charges against the respondent. The Bill at hand takes no cognizance of the basic feature of intimidation that characterizes sexual harassment complaints, and therefore institutes no procedure to address these issues.
Another issue that such enquiry committees routinely come up against is that cases may often involve a component of caste or religion-based victimization; sometimes to the extent that the complaint may actually be overwhelmingly framed along these lines. In such cases, it is essential that the composition of the enquiry committee may be amended to reflect the gender\caste or gender\religion dimensions of the complaint, whether by co-option of additional members into the enquiry or joint enquiries, etc. Further, clause 13(2) of the Bill states that if a charge of sexual harassment against the respondent is not proved, the committee must categorically recommend ‘that no action is required to be taken in the matter.’ In our experience, it has often been the case that even as the sexual harassment charge has not been substantiated, GSCASH enquiries have found evidence of violence, caste abuse, etc, and have therefore deemed it necessary to recommend further enquiry by the appropriate authority.
Three other provisions must also be included in the Bill to ensure that ICCs will deliver justice. The first is that the role and the powers of the NGO\outside member in the ICC must be clearly defined, as the mere inclusion of such a person in the enquiry is not sufficient to ensure free and fair proceedings. As of now, NGO representatives have no legal role in the inquiry – e.g., to protest at the unfair conduct of an enquiry. Second, both counsellors and legal assistance must be guaranteed to the ICCs by employers – as of now, there is no such guarantee.
Third, and most importantly, an explicit statement that the principles of natural justice will be observed in enquiry proceedings, modulated in terms of the overarching principle of gender-sensitivity and gender justice is needed. In recent years, many cases of sexual harassment have been taken to the courts arguing that domestic enquiries in institutions have not afforded respondents the chance to cross-examine complainants and witnesses. Most of these have resulted in the courts referring the cases back for review/further enquiry. In JNU, the GSCASH rules allow respondents and complainants access to all depositions by the enquiry, and afford the right of cross-examination by written question. This procedure eliminates the widely-held anxiety that cross-examination can be used as an instrument to degrade and intimidate complainants and their witnesses. Some such mechanism must be instituted in law by the Bill.
After the Enquiry
As has been already widely observed, Clause (14) which makes provision for punishment of false or malicious complaint or evidence must be removed, as the threat of punitive action for false complaints will definitely act as a deterrent. Most complainants approach inquiry committees tentatively in the first place, given that acts of sexual harassment usually happen behind closed doors, without witnesses. If Clause (14) stays, aggrieved women will quite naturally evaluate their own complaints as ones that can be judged as false or motivated.
Clause (15) for ‘determination of compensation’ is highly problematic. The primary task of an enquiry committee cannot be to determine the quantum of compensation, but to arrive at findings and conclusions about the charge of sexual harassment at hand. Every case does not merit payment of ‘compensation’, yet the Bill makes a recommendation for compensation mandatory for every ICC report.
Moreover, and most alarmingly, the way that the provision for compensation is phrased is a perversion of the letter and spirit of employer liability, foundational to sexual harassment law internationally. By holding that compensation must be ‘recovered’ from the person found guilty of sexual harassment, and that the quantum of compensation is to be determined keeping in view the ‘income and financial status of the respondent,’ the Bill frees employers of any financial liability for failing to ensure the health and safety of its women employees. This unprecedented cap on damages to be paid will surely be welcome to big corporations like Infosys who recently had to settle a sexual harassment lawsuit for $3 million, because of their failure as employers to protect a woman from sexual harassment; but it will also be welcome to the smallest of workplaces like the small factory owner whose male employee has absconded after molesting a fellow woman employee. The Bill mandates that in cases where the employer fails to recover the damages from the offender, all the employer has to do is ‘direct’ the respondent to pay the damages.
For these reasons, which are also about the commitment to upholding the dignity of the aggrieved woman, the provision for compensation must be reframed, so that compensation is paid to the victim by her employer, who may have the option of recovering part or full amount from the respondent.
Clause (16), which seeks to protect the identity of the respondent even when he has been found guilty, has been the most controversial. While it is true that every act of sexual harassment, particularly minor acts, may not merit a public statement, it is equally true that publicity in major cases, particularly with regard to the quantum of punishment, may be necessary for maintaining the health of the workplace. In many cases, the information that there has been action against an employee may lead to further information and complaints. Moreover, the fact that alleged violations of clause (16) also apply as grounds for disqualification of ICC members will severely impact the enquiry process.
There is also one other ground on which Clause (16) must be opposed – in its overriding the Right to Information Act. Given the overwhelming powers that the ICC has been invested with (and the unrepresentative nature of its composition), the clause also grants the ICC complete immunity from any accountability to the concerned parties. Accountability cannot be ensured merely on the basis of the right of the appropriate government to examine all records at any point of time. Besides, any appeal can be based only on the examination of the enquiry report, evidence, procedure and chain of conclusion. Without providing the complainant or the respondent the right to examine the records of the enquiry committee, the principle of natural justice cannot be observed. It is therefore essential that the Bill contain a guarantee that even as the committee will be bound to maintain the confidentiality of the aggrieved woman and her witnesses, all other details must be made available through RTI only to the concerned parties.
Clause (18) states that any appeal shall be preferred within a period of thirty days of recommendation. However, the employer is then provided ninety days to implement the recommendation. This must be changed to preference of appeal within thirty days of communicating the decision and provision of the inquiry report to the concerned party. This is the least that is required for making any reasoned appeal. The appeals mechanism within a workplace must be exhausted before approaching the courts or any other tribunal. The existence of this option, though likely to be utilized by only a few, is important.
Universities and the Bill
Across India, in the fifteen years since the Vishaka judgement, University communities and authorities have proved to be more responsive than the government of India, and many, if not most, have already instituted ICCs by interpreting the Supreme Court guidelines. In JNU, the democratic and representative character of its ICC was won by sustained struggle and consultation, and its GSCASH now serves as the model for other universities across the country. Will GSCASH suffer the same fate as the other widely lauded institution of JNU — the JNU Students Union? The implementation of the Lyngdoh Committee recommendations of 2006 (meant to be reviewed every two years) damaged one of the most robust and democratic institutions of students, and it appears now that this Bill will have the same impact on the oldest, most robust and accountable committees against sexual harassment in the workplace in the country. The law, must therefore, allow the GSCASH (and other similar institutions that pre-exist it) to continue to function its present form. Among these is the popular character of its composition, its gender-neutral character in admitting complaints of sexual harassment from both women and men, and the adoption of a set of rules that are in keeping with the needs of a workspace as complex as a University.