PUCL Bulletin, May 2001

Harassment at Work
By D. Nagasaila & V. Suresh

"Do you know what sexual harassment is? It means physical contact and making advances; a demand or request for sexual favours, sexually coloured remarks; showing pornography; other unwelcome physical, verbal or non-verbal contact of a sexual nature. Now that you know, start describing your experience in each category"
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"How many people raped you in the office? How many people hugged and kissed you? How may people touched the sensitive organs of your body? If this has not happened then how do you say you have been sexually harassed"?
"Your complaint is imaginary. It is impossible that a man in such a high position would stoop to such a level as to touch you".

"Are you not ashamed of making complaints of sexual harassment? Have you looked at yourself in the mirror? Do you think you are young and beautiful? Do you expect people to believe that you have been sexually harassed?
"Why do you prefer these complaints? As a woman you must learn to adjust and not complain. No other woman around you is complaining, so why are you doing it? You are overreacting and being hypersensitive. It is better for your career to withdraw this complaint."

These are some real-life experiences of women who complained of sexual harassment at the work place. Members of committees specially set up to enquire into allegations of sexual harassment by seniors and colleagues put these questions. Ironically, according to the victims who dared to complain, these questions were put to them either in the presence of or by women members of the committee and even by NGO representatives.
In the last 10 years, there has been a significant induction of women into the work force. Irrespective of whether they are highly trained women entering the information technology industry or unskilled women joining the ranks of labourers in export promotion companies like the garment and food processing industry, one fact of life is common in a patriarchal society like ours-the very high and real possibility of sexual advances and demands by male colleagues. On the occasion of International Women's Day, it is relevant, rather crucial, to examine the nature of protection and scope of action against sexual harassment in the work place.

In 1997, the Supreme Court delivered a landmark judgment on sexual harassment in work places in "Visakha vs. State of Rajasthan". In this case, the Supreme Court expressed grave concern over the fact that there is no legislation to protect victims. Relying on the International Convention for Elimination of Discrimination Against Women (CEDAW), the Supreme Court used a set of guidelines to be followed by all institutions until a law is enacted.
The Apex Court directed that all institutions should set up complaint mechanisms to deal with complaints of sexual harassment at work places. This should consist of a committee headed by a woman. The majority of members should be women. In order to ensure an unbiased enquiry, the Court directed that the committee should consist of an NGO member with expertise in women's issues because in most cases, the accused is likely to be a person in authority.

The Court also held that, apart from holding such behaviour as misconduct and taking disciplinary action, the complaints mechanism should provide for a complete solution to the problem. It held that transferring the woman complainant or the delinquent employee, if the complainant so desired, providing counseling and awarding compensation or the delinquent employee, if the complainant so desired, providing counseling and awarding compensation should be provided.

After the Supreme Court judgment in Maneka Gandhi's case in 1978, this was a quantum leap in expanding the principle of fairness in procedure. In this case, for the first time, the apex court expanded the scope of Article 14 of the constitution, which guaranteed equality before law, and equal protection of law. The Court observed that the right to equality would also include the right not to be treated in an arbitrary manner. In Maneka Gandhi's case, the Court held that while citizen's rights could be curtailed or limited by "procedure established by law", it didn't mean that the "procedure" prescribed could be any procedure. It should be fair and just.

After 1978, in Visakha's case, for the first time the principle of fair and just procedure has been further expanded to include a "gender just" procedure. Such an interpretation is not only in furtherance of the constitutional goals of equality but would also be in furtherance of international conventions such as CEDAW.

Unfortunately the experience of women who have attempted to set the law as in Visakha in motion has been far from pleasant. To begin with, very few institutions have taken the directions given by the Supreme Court seriously. Most organisations, both public and private, have failed to set up complaints mechanisms as contemplated in Visakha. Employer institutions are required to publicise the Visakha verdict and create awareness about it. This, of course is never done. So very few women are even aware of the judgment. The few informed women have to take up cudgels for the constitution of the committee. Invariably the first battle for a woman complaining of sexual harassment is to get the institution to constitute a complaints committee as stipulated. Their experiences have been most unpleasant, to say the least.

Surprisingly, or may be not so surprisingly, the judiciary - which employs a large number of women - has been the most reluctant institution in setting up the complaint mechanism. A woman staff of the Madras High Court had complained of sexual harassment by a senior administrative staff. The Chief Justice, who is also the administrative head of the judiciary, after considerable dilly dallying over the complaint appointed a man to enquire into the matter. This was challenged in the madras High Court, and the complainant requested the court to set up a complaints mechanism as directed in Visakha to look into her grievances, Interestingly the Madras High Court filed a reply that the judgement of Visakha was not applicable to the judiciary, as it would affect the independence of the judiciary. The matter is still pending. In another instance, though the institutions did not take as extreme a stand as that of the Madras High Court, they subverted the judgment in more subtle ways. A senior scientist with Central Electro Chemical Research Institute (CECRI), a laboratory under the control of the council of science and industrial Research (CSIR) complained a sexual harassment by her immediate superior. The first response was to slam a transfer order on her. She was forced to go to Court. She obtained a stay of her transfer and the Central Administrative Tribunal directed that a Committee as per the Visakha guidelines be constituted to enquire into her grievances.

Accordingly, the CSIR constituted a committee as in Visakha, with a woman NGO etal. But the experience of the scientist was distressing. The constant advice she received from the members of the Committee - both men and women -- was that such transgresses were "natural" and that she should learn to cope with them and not make an issue of it if she desired to progress in her career. Predictably, the committee found the complaints were unsubstantiated. This, despite documentary evidence which clearly showed how her superior had interfered and sabotaged her various project ventures.

Such examples can be multiplied. The women who complained and insisted on a complaint committee were worse off for having waged a battle for justice. They were left more traumatized, demoralized, and defeated than when they started.

A signature campaign was launched by lawyers of the Madras High Court, demanding that the Chief Justice set up the complaints mechanism for the entire judicial staff in Tamil Nadu. The representation was handed over by a delegation of senior lawyers. The response of the Chief Justice was along predictable lines. As patriarch of the institution, he advised the delegation that men and women were working in complete harmony in the judiciary. It was only now, after Visakha's case, that trouble was being caused with women starting to complain of sexual harassment.

Any mechanism, however well thought of, can be wholly subverted if the wrong people are appointed. In some ways, the Visakha judgment seems to be ahead of its time as far as the Indian patriarchal society is concerned. Commenting on Visakha's recommendations to appoint persons from NGOs with expertise in gender issues, a judge was heard asking what "expertise" can exist in women's issues.

Thus, on issues like sexual harassment, having persons-whether men or women-with the right attitude and a constitutional approach is crucial and probably makes the difference between justice and injustice. It invariably transpires that though technically it is the man who is the accused, it is the woman who is actually put on trial. This was recognised by the Supreme Court in trials of rape victims, where it was held necessary to depart from established criminal justice system practices to ensure that justice was done to both the victim and the accused.

The first departure from the traditional criminal jurisprudence in rape cases has been with respect to discrediting the character of the victim or the prosecutor, as she is commonly called in legal parlance. Courts always looked for corroboration of her testimony. However, the Supreme Court, in a series of judgments in the 1990s, held that there was no legal compulsion to look for such corroboration. It held that conviction can be awarded on the sole testimony of the victim if her evidence inspired confidence. In continuation of this logic, the Supreme Court also held that even if a woman was a prostitute, it did not discredit her complaint of rape, because a prostitute too is entitled to her right to privacy.

In 1995, the Supreme Court in "Delhi Working Women's Forum Vs Union of India," pointed out defects in the criminal justice system observing that the court proceedings added to and prolonged the psychological stress on the rape victim. The court agreed that a radical change in the attitude of defence counsel and judges is required. Continuing education programmes for judges should include reeducation about sexual assault. It was pointed out that the changes that are required to make the justice system more victim friendly are not structural but attitudinal. Very often, victims are kept in the dark about the nature of evidence collected by the prosecution to establish the case. She was often treated as just another witness of the prosecution with no say in the proceedings. While this attitude would be accepted in regular criminal cases, it is not appropriate in cases of sexual assault. The Supreme Court agreed that the victims should be treated more as equal partners. Towards this, the court held that victims of rape should be given legal representation and assistance at every stage.

This analogy should necessarily be extended to the complaints committee dealing with cases of sexual harassment. The victim should be given legal, psychological and other assistance at every stage and be informed and allowed to participate at every stage of the enquiry, instead of being told that she is only a witness and that how the enquiry is conducted is none of her business. Apart from this, those who are part of such complaints mechanisms should be put through attitudinal tests and gender orientation.

One way of counterbalancing lopsided social perceptions, prejudices and stereotypes is to ensure that persons who have been sensitized to the issue, are appointed to the committee. It will not be out of place for the employer to circulate the names of the members of the committee and call for objections, if any, from the victim. The complainant should also be permitted to have a person whom she trusts on the committee. This will not stop the accused from getting a fair hearing, because a gender just approach is in keeping with the constitutional mandate of equality and fair play.

Unless sufficient importance is given to changing the attitudes of members of complaints mechanism seeking justice in cases of sexual harassment will be an exercise in futility.

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