Sexual Harassment: The Conundrum of Law, Due Process, and Justice

The author draws on her experience of being part of sexual harassment complaints committees to highlight the loopholes in the current legal framework as well as the difficulties in formulating a law that is applicable to and effective for women across complexities of caste, class, and industry. The questions of due process and the quest for justice form important aspects of the picture.

The Law: What It Could Have Been

The irony of the Vishaka judgment was that Bhanwari Devi, whose gang rape led to the petition being filed in the Supreme Court, was not covered by it, since Bhanwari’s rapists were not “employees” and were not at work (Vishaka v State of Rajasthan 1997). Bhanwari remains outside the scope of the current law too. When the National Commission for Women (NCW) invited Flavia Agnes to draft the law around 2004, she asked labour lawyer Mini Mathew to join in. Mathew invited Jane Cox, another labour lawyer, and me to be a part of the drafting process. Other women’s rights groups such as Forum Against Oppression of Women (FAOW) joined in and we would meet at the Majlis office to discuss and draft the bill.[1] One of our prime concerns was to bring in third party harassment into the law. We also wanted to address the issue of sexual harassment at public spaces and others such as the casting couch. We had limited success with this as the law was primarily meant to focus on the workplace and within the confines of industrial/labour/service jurisprudence. We would need a civil law to deal with third party harassment and other similar issues.[2] 

The issue that we spent a lot of time and effort on was delineating the procedure for the enquiry committee. One section in particular spoke about rules of evidence before the committee that gave guidelines on the need for the committee to be gender sensitive while conducting the inquiry.[3] The bill also provided for legal and psycho–social assistance to the woman. The aim was to balance the rights of the women without displacing the hard-won rights of workers against hire and fire. In terms of provisions, there was no time limit for filing the complaint (in fact, the bill specifically stated that delay would not be a factor), non-insistence on written complaint, prohibition of any form of victimisation and the liability of the employer in such case, responsibility of the employer to provide a sexual harassment-free environment for his or her employees, and to assist them in cases of third party harassment. The bill also laid down procedure for handling cases of sexual harassment in educational institutions, government, and professional bodies. The bill also gave the woman the right to file case before the Local Committee and right of appeal. 

The Law: What It Became

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter the act) broadly uses the framework laid down by the Vishaka guidelines, but departs both from the judgment as well as the bill drafted by the women’s groups in many ways. It restricts the rights of women, dilutes the due process rights, and reduces the liability of employers. First, the act lays down the limitation of a maximum of six months for filing the complaint with limited powers to the committee to condone the delay. Moreover, it insists on a written complaint and illogically asks for six copies of the complaint. The limitation of three months (extendable by another three months at the discretion of the committee) is designed to defeat the claims that are filed after the woman is victimised and goes beyond the Vishaka guidelines in limiting the rights of women to seek redressal. Second, it lays down very few guidelines on the manner in which the inquiry is to be conducted, only stating in rule 7 (4) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 (hereafter rules), that “the complaints committee shall make inquiry into the complaint in accordance with the principles of natural justice” and prohibiting lawyers from appearing in the inquiry. This leaves a huge gap in laying down the manner of conducting the inquiry. “Principles of natural justice” constitute a legal concept and there are a large number of decisions of the Supreme Court laying down its parameters in domestic inquiries which is really what the complaint committee does. We will return to more on this later.

One of the major criticisms of the law has been the inclusion of action for false and malicious complaints and evidence under section 14 of the act. Women are penalised and have to bear the threat of punishment in case they are unable to prove their complaint and where the Internal Committee comes up with an adverse finding against them. Even the Verma Committee Report had asked for its deletion, but the government ignored the recommendation and retained the provision. The employer has no responsibility for any victimisation that the woman is subjected to. The boogie of misuse that led to the incorporation of a provision for reverse victimisation is symptomatic of almost all institutional mechanisms that seek to tip the status quo because resistance is inbuilt in them. This ultimately leads to the failure of the law to address the very concern it raises—as can be seen in the history of the implementation of land reforms, prohibition of domestic violence, implementation of equitable labour laws, prevention of atrocities, or enforcement of forest rights.

The law is silent on the employer’s liability in cases except to the extent of setting up a committee and facilitating the holding of an inquiry. The duties of the employer are set out in chapter IV in section 19. Though 19 (a) states that the employer shall “provide a safe working environment at the workplace which shall include safety from the persons coming into contact at the workplace” and violation of this provision is punishable under section 26(1)(b) of the act with a fine of 50,000. There is no civil liability towards the woman for failing to provide her with a safe working environment.[4] While after the law has come into force, there have been prosecutions for failing to constitute the committee; there have been no prosecutions for failing to provide a safe environment at work. So, the provision really remains to be realised on a case-by-case basis and not by systemically addressing the issue of workplace harassment. The only systemic action is organising of awareness and training programmes. As the experience of conducting such programmes has revealed, one of the objectives of such trainings is also to address concerns of false complaints. The law is silent on victimisation and has neither any preventive provisions nor any remedies for the same. The focus is on redressal and not prevention or prohibition.

Even the Local Committee has limited powers. The draft had provided for it to take suo motu action, but this is absent in the act and no committee (either internal or local) has this power. The Local Committee is also not empowered to act in cases where the Internal Committee is either not constituted or has an explicit bias. The remedy open to the woman in the first instance is to file a criminal complaint or a writ for constitution of the committee and in the latter, to challenge the findings by way of appeal. After almost four years of the functioning of the law, there is lack of clarity regarding the appointment of the appellate authority.

The Question of Due Process

The difficult aspect of being a member of internal committees is discovering and then converting the truth into a legally valid finding. The balance between substantive and procedural aims (or the means and the ends) is particularly challenging in the absence of procedural guidelines. Principles of natural justice are an important element of administrative and constitutional law and every law student has to learn the various intricacies of it as enunciated in several judgments. It is the bulwark of all administrative or disciplinary laws that affect the rights of third parties. This is also one of the major grounds on which administrative decisions are challenged. The principles of natural justice include two legal maxims: “Nemo in propria causa judex, esse debet” or the rule against bias which bars persons who may be witnesses, friends, or others interested in the outcome from participating in the inquiry process as part of the complaints committee, and “audi alteram partem” means that a fair opportunity must be given to be heard to any person who would be affected by the decision of the committee and not condemn them unheard.

In 1972, in a case relating to sexual harassment at Rajendra Medical College, the college expelled four male students charged with flashing before the girls’ hostel (Hira Nath Mishra v The Principal, Rajendra Medical College 1973). During the inquiry, the complainants were not brought face to face with the defendants, copies of the complaint were not given to them, and the names of the complainants were not disclosed. The inquiry committee separately heard the girls who identified the boys (studying in the same college) through their photographs. The identified boys were then called. The committee read out the complaint to them and asked them to write their version. The defendants denied the charges. They challenged their expulsion on grounds that they were not given an adequate opportunity to be heard and the principles of natural justice were violated. Both the Patna High Court and the Supreme Court of India rejected their contention stating that the requirements of natural justice were fulfilled and no injustice was done. However, since 1973 when the judgment was passed, the constitutional bench of the Supreme Court delivered the Maneka Gandhi judgment. Here, the Court held that the procedure established by law (as enjoined by Article 21 of the Constitution) should be “fair, just and reasonable” and could not be “fanciful, oppressive or arbitrary” (Maneka Gandhi v Union of India 1978). Thus, a fair hearing would require adequate opportunity to defend oneself. The procedure followed by the Rajendra Medical College, therefore, would not be likely to pass muster today. However, in practice, this is the procedure mostly followed by committees. 

In most of the ICCs that I have been member of, I have been the only lawyer and the only person present who is aware of the full portent of the legal technicalities involved in conducting the inquiry. To the best of my knowledge, many committees do not have even a single member who is aware of the legal requirements which are rooted in the law of departmental inquiries. In public sector undertakings or where the employer deems it fit to intervene, the procedural requirements are complied with, but in most cases, they go unaddressed. Prior to the 2013 Act, the Supreme Court issued an order on the procedure in a sexual harassment inquiry in a case of allegations of sexual harassment against a university professor by a student. The court held that though the respondent was entitled to cross-examine the witnesses, their identity need not be revealed to the respondent and he could submit written questionnaires to the committee, who in turn would give them to the witnesses to answer the same in writing.[5] This has been the line adopted by the Delhi High Court (Ashok Kumar Singh v Delhi University 2017). The Kerala High Court has further clarified that in cases where the committee finds that the witnesses and the complainant cannot depose freely, this procedure can be adopted but the courts have emphasised that the respondents have the right to contradict the witness deposition (LS Sibu v Air India 2016). 

The law is nascent, developing, and unclear. There are no clear road maps on how to conduct inquiries. Most committees are unaware of the legal requirement for cross-examination and its importance. The employers, by and large, do not play any role in ensuring that the enquiry committees are equipped to deal with the procedures in accordance with law, except where the stakes are high or the employer has a personal interest in ensuring an outcome that can be defended in a court of law. In most cases, there is lack of coordination between the complaints committee and the personnel/disciplinary authority of the organisation. Having been on several committees, one is rarely aware of the outcome of the report one submits, except through the grapevine or when stringent steps are taken such as removal of the employee (which in my experience is rare). 

As Maya John (2014: 29) has argued, the law has turned “the struggle on gender-cum-labour rights to a private affair between two private parties.” She argues that sexual harassment laws individualise the process and bifurcate the interconnected gender and labour issues instigating an “individualisation of an experience that fails to sufficiently take into account workplace dynamics and how they can influence the decision of a complainant to settle for a particular form of investigation and redressal” (John 2014: 30). She argues that “the defining of sexual harassment in contradistinction from other labour issues and the constitution of a separate realm for its adjudication” harms both the women and the workers movement in the long run and advocates the shift of resolution of sexual harassment at the workplace from arbitration through management appointed committees to support/struggle committees of employees that are “entrusted with the responsibility of providing all kinds of support, advice and a representative voice to aggrieved women employees” (John 2014: 32).

What about Justice?

My personal experience with the law both as a member and a consultant has been that by and large, most committees are gender sensitive and are willing to withstand employer/organisational resistance and pressure to impart justice. In almost all the cases that I have handled as a member, there has been unanimous affirmative finding irrespective of the nature of evidence or number of witnesses that the complainant has been able to garner. I am yet to encounter resistance from committee members regarding some overstretched reasoning in cases where the evidence may be nebulous, but one is convinced of the genuineness of the complaint. In many cases, the benefit of doubt has gone in favour of the complainant as the respondent has failed to show that the complaint is motivated. Committees evolve their own procedures for dealing with complaints and in most cases that I have been part of, due process rights of respondents have been more compromised than the rights of the complainants. Informal networks and grapevine play a greater role in determining the “truth” over formal procedure. Members sometimes use informal networks to investigate incidents and circumstances relating to the complaint. In many cases, women friends and colleagues of the respondent use the informal route to influence members of the committee. In a committee where I was the external member, all the junior colleagues of the respondent (including female colleagues) walked in to give evidence in support of him. However, we overlooked these character references as irrelevant and due to the fact that the women were subordinate to him. After the submission of the report, I was informed that the respondent was known in the organisation to be notorious for such acts. 

For many women, it is a lonely battle with organisational isolation and little support from even female colleagues.[6] The first sexual harassment case that I handled was before the Vishaka judgment. The woman had filed a criminal complaint against a male colleague for outraging her modesty. She had done so without any institutional backing, with only the support of her trade unionist husband who brought her to me when her deposition was to begin. She did not really need my help and was an excellent witness. During the cross examination, the defence advocate asked for the matter to be settled. Her only condition was that the defendant must admit to the charge orally in the court and apologise to her in public. Often, public acknowledgement of the wrong and a harassment-free work environment is what women want. 

There is no denying the fact that there have been many cases of harassment of women who have filed complaints, as well as cases of bias within committees. This is especially true in cases where women have filed complaints against superiors and more so in the private sector, where women have been subjected to reprisals including implications in counter charges, allegations of incompetence, and findings of false or malicious complaints. In the Local Committee, the only cases received are those of women who are dissatisfied with the ICC or who have been victimised for filing complaints and want a transfer to the Local Committee. The law, however, does not permit it. Most complaints received (even in internal committees) are against men who are lower down in the organisational hierarchy. 

The employers mostly operate on the basis of who is dispensable to the organisation and take action accordingly even in public sector undertakings. Organisations that seek to employ more women employees can be persuaded to act in order to be perceived as gender sensitive. Many women do not come forward to file formal complaints because of the fear of repercussion. In one case, I was informed that the victim was unwilling to file the complaint or even name the perpetrator, because she feared that he would attack her outside the premises. She was willing to complain on the condition that her safety was ensured. There have been cases where the respondent has threatened the complainant through others right outside the enquiry room. The committee is empowered to cure and not prevent. That is the responsibility of the employer. But is the answer a more stringent law or amendments to cure the defects? 

The answer raises more questions. Can any law that solely addresses the issue of sexual harassment answer questions that are deeply embedded in class and gender relations? Can employers be expected to be the protectors of labour rights? Around two decades ago, I was a defence representative in domestic inquiries against around two dozen workers in a major automobile industry in Mumbai after a major industrial action. All the active union members had been suspended and chargesheeted. We had managed to unearth evidence that the charges against the workers were fabricated based on the management’s own documents filed in court. During the inquiry, I was neither allowed to produce those documents nor cross-examine the witnesses on the issue as the inquiry officer held them to be “irrelevant.” One continued with the inquiry not in the hope of getting a favourable response as the result was predetermined, but to fight the larger battle in court as hard-won rights cannot be given up easily. History has shown that social justice is achieved through struggle and not entitlements.

In Conclusion

Though the law has achieved limited success in highlighting the issue of sexual harassment, it has failed to reach out to the large numbers of women in the unorganised sector who continue to suffer worse conditions of work and harassment without recourse to law, as my experience with the Local Committee has shown. Even in cases where it applies, the structure of the law makes it mandatory to follow due process in cases where it is not applicable for any other misconduct. Permanent employees of the private sector who are not workmen and hence outside the scope of labour laws, can be removed from service without any due process in all cases except sexual harassment where the process is mandatory. Their only other recourse is compensation for unjust termination. The employer does not have to follow any procedure and has no liability whatsoever before removing any contractual employee, intern, or volunteer in any other instance. In case of allegations of sexual harassment, the employer has no liability to remove the person unless the woman is able to prove the allegations made by her.

Thus, the law that aims to provide a safe working environment for women puts the onus on the woman to prove that she does not have a safe workplace environment and does not make it the legal responsibility of the employer. This is symptomatic of neoliberal policies where victims are “empowered” to seek legal redressal with little state or institutional commitment to social equity. 

However, these are not the only problems that women face at work. There are many more discriminations and challenges at the workplace today such as tenuous work contracts, exploitative conditions of work, and low wages that both women and men face. Perhaps, as Maya John has argued, it is time that we moved beyond Vishaka and addressed these issues more comprehensively and collectively—and this time, include Bhanwari too.

 

This article is a part of the Special Feature Power and Relationships in Academia. To read other articles in this feature, click here. 

 

Cases Cited

Ashok Kumar Singh v Delhi University (2017): Letters Patent Appeal No 305 of 2017, Civil Miscellaneous No 15732 of 2017, High Court of Delhi judgment dated 18 August.

Hira Nath Mishra v The Principal, Rajendra Medical College (1973): SCC, 1, p 805.

LS Sibu v Air India (2016): Writ Petition (Civil) No 4001 of 2016, High Court of Kerala judgment dated 8 April.

Maneka Gandhi v Union of India (1978): AIR, SC, p 597.

Vishaka v State of Rajasthan (1997): SCC, 6, p 241.

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