When women started using the social media to share their experiences of sexual abuse and sexual harassment at their workplaces, during the recent #MeToo campaign, the first hurdle they met was to respond to the query, “but why did she not complain earlier?” If she did not complain earlier, the insinuation was that it was a figment of her own imagination. This was in line with the response of the perpetrators who denied that such an incident had taken place.
Those who raised this query appear to be oblivious of the fact that around two decades ago, awareness about redress mechanisms was totally lacking. Only in 1997, the Supreme Court had issued the Vishaka guidelines providing an in-house redress mechanism. But impact of the guidelines was minimal as corporates routinely flouted them. Even the enactment, Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“the Act”) was flouted by most corporates. Since the Act lacked adequate monitoring mechanisms, the corporates could get away with it. Only when there was a complaint, an ad hoc committee would be set up which had no knowledge or understanding about its own powers and functioning as a quasi-judicial body.
Now the #MeToo campaign has shaken the corporate world and has forced them to set up “internal complaints committees” (ICC) and organise trainings by gender experts. It has also forced the government to sit up and take notice about the inadequacies of the Act.
At a recent meeting organised by the National Commission for Women (NCW), chairperson Rekha Sharma acknowledged that the Act was a virtual non-starter. While most workplaces had not set up ICCs, even when they were instituted, these committees did not function in the spirit of the enactment. It was difficult for the lower staff to investigate complaints against highly placed officials who would be in awe of these senior-level officers.
Even the mandate of appointing an external NGO member to the ICC does not have much impact, unless this member is able to influence the committee. If he/she harboured the same sexist biases, the complainant had no hope of getting justice. So victims were left with no other option than to file a criminal complaint with the police, which also did not have provisions to address the issue. Section 354A of the IPC, which dealt with sexual harassment, was inserted only in 2013 when the IPC was amended after the Nirbhaya incident.
The lacunae within the Act has now become glaring. The Act deals only with situations where the complainant and perpetrator work in the same organisation. If the accused has moved, the ICC lacks the power to conduct an inquiry. So, women who came out in the social media had virtually no remedy in law.
A suggestion made by Justice Sujata Manohar, the retired Supreme Court judge who was part of the bench that issued the Vishaka guidelines, was to set up industry-wise committees, for example, the film industry, the media, financial institutions, educational institutions, small and medium scale industries etc. which the woman can approach if she is not comfortable about filing a complaint in her own organisation or is not satisfied with the procedure adopted by the ICC or its verdict. These committees could act as appellate authorities. This will also address the problem of small and medium enterprises within a particular sector who employ less than 10 women.
Even at this level, members of such committees would need training to act efficiently and to shed their own sexist views. Engaging a lawyer well versed with criminal or civil litigation would not be of much use to them.
Another suggestion that came up at the consultation was to broaden the definition of “sexual harassment” to include gender discrimination and sexism at the workplace. Gender-based discrimination has no remedy under the current statute as there is no “sexual” motive. However, this would broaden the scope of the Act and bring in a wide range of issues within its ambit, which the ICC may not be equipped to deal with.
Other suggestions were to delete the clause which penalises the complainant if she is not able to prove her allegations, on the ground that it is a “false” case. A case that could not be proved is not a “false” case. This provision acts as a deterrent and restricts many women from filing complaints. Another drawback is that the ICC lacks the power to implement its own recommendations. If the employer chooses to ignore them, nothing much can be done about it. The appellate body should have the power to impose penalties on the employer for non-implementation of the recommendations.
Though the Act is meant to prevent, prohibit and redress sexual harassment, the aspects of prevention and prohibition are generally ignored.
The Act provides for constitution of Local Complaints Committees (LCC) for workplaces, which employ less than 10 women and for women in the unorganised sector under the district collector. Usually the collector does not have time and this task is delegated to the junior staff. But the delegated junior staff member may not be aware of the Act and its provisions. The LCC has to function at two levels — complaints by women from the unorganised sector — a contract labourer or a domestic worker; at the other level it has to deal with complaints where the head of the organisation is implicated. They lack the capacity to function at this level, especially when a sophisticated corporate head, armed with a battery of lawyers, comes to the inquiry and browbeats the government official who is not trained in law and may not be familiar with the Act.
Any change in law can only be based on hard facts. Unfortunately, the government lacks the data about the functioning of the LCCs. Collecting and analysing this data should be the first step in suggesting reforms which will have meaningful impact.
