Why Laws Are Not Enough to Deal With Sexual Harassment

Sexual harassment cases at the workplace continue to be reported in large numbers, which means that the nature of the workplace itself needs to be questioned.

According to data published by the Ministry of Women and Child Development, the number of cases of sexual harassment in the workplace registered in India jumped 54% from 371 cases in 2014 to 570 in 2017. The #Metoo campaign recently brought sexual harassment into mainstream public discourse in a strong way. Also, Ranjan Gogoi’s case put the spotlight on the laws against sexual harassment in India.

The media, academics and activists have taken up the initiative to discuss The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act bringing out its loopholes and the inadequacies in its implementation. Similarly, they are trying to pitch reforms and new redressal mechanisms for working women.

However, it is not  simply enough to strengthen the law, prescribe severe punishments or establish Internal Complaint Committees. What needs to be addressed is the larger issue of the inherently gendered power relations of workspaces. A 2018 report by McKinsey stated that for every 100 men that are promoted to manager, only 79 women are promoted.  Asymmetrical power relations are evident in workspaces. We do see a few women rising above the norm but the triumph of a small minority over patriarchal cultures doesn’t change the culture in itself.

This reading list investigates the phenomena of sexual harassment and brings out the loopholes in the content of the current law.

1) Sexual Harassment Is An Expression Of Power

Sexual harassment has little to do with desire and more to do with exercising control over women. It is an expression of patriarchal power and impunity. Authors Punam Sahgal and Aastha Dang explore the socio-behavioural understanding for the genesis of sexual harassment.

Sexual harassment is used as an equaliser against women in power, rather than instigated by sexual desire. It is one way for men to dominate and control women, who are seen as non-conformist and have risen to positions which have been traditionally occupied by men. Even if there is a grievance mechanism in place, the power dynamics against a woman if she makes a formal report, or the status of the perpetrator, plays a major role in the complaint getting invalidated.

It is one thing for sexual harassment to be the outcome of gender-based power relations of work culture, but it is a matter of great concern when laws meant to protect women from sexual harassment also imbibe power relations. Monica Sakhrani goes on to explain how these power relations have found their way into the law, putting women on the back foot.

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.

2) The Inadequacies Of The Law

The law in its content itself weakens rather than empowers women. There are several loopholes in it which allow for transgressions. Monica Sakhrani writes that there are also procedures that the law puts in place such as establishing an enquiry committee. However, the viability of these mechanisms enshrined in the law can be called into question.

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. 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 law is nascent, developing, and unclear.

If the law in its content itself is weak, one can only expect poor implementation of it. This is reflected in the investigating committees that look into sexual harassment complaints of women. Sakhrani states that these committees are unclear on how to conduct inquiries, thus failing to provide women with any kind of redressal leaving them vulnerable.

Most committees are unaware of the legal requirement for cross-examination and its importance. 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).

3) The Workplace Is An Important Stakeholder

The workplace is often the location of sexual harassment as the space itself is structured in a way that allows for the proliferation of masculine dominance and sex-based power relations. Therefore, how the harassment manifests can also be linked to the organisation. The Vishaka guidelines attempted to empower women at workplaces. It provides a clear guideline on how to handle complains put forth thereby creating a standardised redressal procedure. However, as Monica Sakhrani writes, the workspace continues to be oppressive for many women.

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.

Sheba Tejani emphasises the responsibility of the workplace by advocating a need to sensitise the environment. She also calls for the creation of their own redressal mechanisms rather than relying on a judicially mandated procedure which is clearly failing to adequately address the issue.  

Sexual harassment is rooted in cultural practices and is exacerbated by power relations at the workplace. Unless there is enough emphasis on sensitisation at the workplace, legal changes are hardly likely to be successful. Workplaces need to frame their own comprehensive policies on how they will deal with sexual harassment. Instead of cobbling together committees at the court’s intervention, a system and a route of redress should already be in place.

Tejani further explains why organisations fail to look at sexual harassment as a policy matter. This has to do with the failure to see sexual harassment as a result of a work culture that the institution propagates. As a result, they don’t see sexual harassment to be a subject to make a firm company policy on. This leads to the current law becoming the only way to address cases of sexual harassment.

First, entrenched patriarchal attitudes prevent sexual harassment from being seen as a serious offence; worse, they invert the stigma of harassment on women themselves. Second, the vagueness of the guidelines on the internal grievance mechanism has left organisations with a great deal of room to manipulate the process or bypass it altogether. Third, a partial result of the first and second, is the failure of organisations to treat sexual harassment as a policy matter and integrate it into their service rules.

4) Civil Society Must Fill the Void

Rukmini Sen believes that it is up to civil society to bring issues of sexual harassment into mainstream discourse. This is a solution to consider closely as our laws have failed to not only make women feel safer at workspaces but also to bring the issue into public discourse.

Within a transforming landscape of young, aspiring, freedom-seeking students of plural genders in institutions of higher learning across Indian cities, there will be a desire to talk about, discuss and debate sexual politics, and this desire is likely to challenge cultures of silence around them.  Collective (not always institutional), informal spaces and groups are better equipped to do these dialogues. Feminist reading groups could initiate readings on desire and intimacy, so that common sense responses to these as being either moralistic or erotically indulgent are dismissed.


Read More:

  1. Extending the Boundaries of #MeToo: Sexual Harassment in the Lives of Marginalised Women I Akshaya Vijaylaxmi, 2018
  2. Sexual Harassment of Women I Anagha Sarpotdar, 2013
  3. Sexual Harassment: Is It Enough to Set Guidelines I Jyoti Punwani, 1997

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