Women, the law has your back!

Sameer Chaudhary

The year 2018 saw the dam break. #MeToo became the avalanche that catapulted women and their struggles to centre stage. The impact of the Internet as a tool of empowerment was never under any doubt, and fuelled by the #MeToo movement, women from diverse sectors, cities, and backgrounds spoke in one voice against the perpetrators. Even though incidents of harassment and sexual violence were reported after 5-10 years, the victims deserve the right to be heard and the right to a fair and impartial investigation into their allegations.

Amidst the alleged reports, women who made revelations had to face a volley of questions like why did she not report the incident earlier? Why didn’t she raise it or report it to the police? Why did she not resort to legal remedies instead of shaming the offender on social media? While these pertinent questions were aimed to break the victims, an analysis of the existing legal framework and its evolution is imperative to understand the legal issues surrounding the movement.

The Vishaka Guidelines
The groundwork for this movement was laid in the 1990s when the trial of rape of a social activist hired by the Government of Rajasthan resulted in the offenders being acquitted. A group of NGOs then came together in the aftermath of the public outcry and protests and petitioned the Supreme Court to create a legal framework for protection and justice of women who were sexually assaulted in the course of their work. The Supreme Court observed the absence of a formal legal framework to protect women from sexual violence at workplaces and was forced to legislate to fill up the legislative vacuum by laying down guidelines that eventually came to be known as the Vishakha Guidelines.

Act for women employees
The Indian Parliament took more than a decade to promulgate the legal framework in relation to sexual harassment of women at the workplace by passing ‘The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. The Act in its Statement of Objects and Reasons rightly records “Sexual harassment at the workplace is considered a violation of women’s right to equality, life, and liberty. It creates an insecure and hostile work environment which discourages women’s participation in work, thereby adversely affecting their social and economic empowerment and the goal of inclusive growth”. The definition of sexual harassment includes sexually determined physical, verbal, or non-verbal conduct.

As per the scheme of the Act, aggrieved women can approach the ‘Internal Complaints Committee’ (ICC) within three months of the last date of the incident. ICC is a mandatory committee formed to investigate the allegations of a woman employee by the employer. The employer is obligated to provide assistance to the woman if she chooses to file a criminal complaint. The Act also provides a mechanism for the woman to approach the court in situations where she is dissatisfied with the composition of the ICC or is aggrieved by the findings of the ICC.

How does the legal system work in India?
However, most of the women, who are now speaking out about acts of sexual violence do not want to resort to legal remedies for lack of evidence and severe delay in reporting. Usually, it appears that most of these allegations would be time-barred under criminal law as they relate to offences committed many years ago but the period of limitation can be extended if the delay in reporting can be properly explained. In any case, the more serious offences like stalking and rape can be reported anytime as there is no limitation on reporting offences that are punishable with more than three years’ imprisonment.

In addition to these, the way forward for women is to file a civil suit claiming exemplary damages against the employer for breeding a hostile work environment.

However, the legal problem that a woman complainant will face is that all civil suits require an exorbitant amount of court fees to be deposited before the initiation of the proceedings. In this regard, other states can draw a leaf and follow the example of the state of Maharashtra which has exempted women from court fees in relation to cases of violation of human rights and sexual violence.

Why women are sceptical of the legal route? 
The primary reason most women do not want to approach the courts or pursue legal remedies is the apparent lack of evidence. Such offences usually take place when the predator is alone with the victim and any direct evidence is hard to come by. The unimpeachable testimony of the complainant is usually sufficient to secure the conviction of the person but the victim can certainly benefit from other surrounding circumstantial evidence such as screenshots of conversations, emails or medical evidence corroborated by the testimony of other colleagues. Women seeking to expose sexual predators are usually countered with civil and criminal defamation actions brought about by the perpetrators with the single objective of somehow silencing the woman. The courts need to be sensitised that they should refrain from protecting the right to reputation at the cost of stifling freedom of speech and expression and discourage the use of defamation as a tool for harassment and blackmail.

Can #MeToo be misused?  

The #MeToo movement, like many other movements, has the potential of being misused. Women for whatever reason may use it to target men and gain an undue advantage, but this fear by itself should not be the reason to stymie the movement which holds the promise of ridding hotel rooms, casting couch and boardrooms of powerful men who prey on women, driven by the sense of entitlement.

(The author is a barrister and practising advocate in the Supreme Court of India)
(As told to Nivi Shrivastava)