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
"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
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
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
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.