-
Naina Kapur
Vol - XLVIII No. 24June 15, 2013, epw
http://www.epw.in/commentary/workplace-sexual-harassment.html
Sixteen years after the landmark Vishaka case
judgment of the Supreme Court, the government introduced in the Lok
Sabha in September 2012 a defective Sexual Harassment of Women at
Workplace (Prevention, Prohibition and Redressal) Bill. The Act, as it
stands, has failed to draw on the extensive research on sexual
harassment that has been done in this country and elsewhere. Further,
its inaccurate phrasing of workplace sexual harassment and mismatches
between subheadings and content of the text eclipses the most common
forms of workplace sexual harassment.
Naina Kapur (
naina.kapur@gmail.com) is an advocate who pioneered the Vishaka directions on workplace sexual harassment.
Before 1997, “sexual harassment” had never settled into the Indian
legal lexicon. We were instead saddled with an archaic Victorian
template which criminalised “outraging or insulting” a “woman’s
modesty”. It made us pretend that we had it all covered. But we never
did. Unwelcome words, gestures, images, language, and all those subtle
intangibles which sexually violate a woman, were comfortably woven into
the pattern of life rather than the fabric of law. It all became a
silent and acceptable part of “the way things are”.
Bhanwari Case
It was not until the 1990s that the sexual torment endured by a rural
level change agent in Rajasthan and her subsequent determination to
challenge what led to her violation gave rise to a long overdue
common-sense approach to what needed to change. It was us. Sexual
harassment hit the Indian legal map when Bhanwari, a
saathin in
Rajasthan, prevented the child marriage within an upper caste community.
In doing so she was subjected to unwelcome sexual harassment through
words and gestures from men of that community. When she reported the
harassment, the local authority did nothing. That omission was at great
cost to Bhanwari – she was subsequently gang-raped by those very men.
Surprisingly, nationwide calls for justice hovered around demands for
a stringent criminal law response, i e, the filing of a first
information report (FIR). With a history of failures by the criminal
justice system to stem the pandemic of violence towards women, such
demands appeared futile. At the risk of offending purists of criminal
law, it has always struck me as somewhat offensive that a breach of
criminal law is effectively treated as a crime against the state. Each
FIR becomes the pursuit of a culprit by the police for a harm which the
“State” has endured. At most the complainant woman is only ever a
witness.
Bhanwari’s experience invited us to change that pattern. Rather than
perceive sexual harassment in the home, on the street, at work or in
accessing justice as individual personal injuries, we needed to
experience it as a constitutional concern. The microcosmic commonality
of Bhanwari’s experience of sexual harassment mirrored what scores of
working Indian women faced in India – everyday, everywhere, all the
time. In the absence of any existing legal response to “sexual
harassment”, the opportunity was ripe for a comprehensive approach. In
1992, therefore, we approached the Supreme Court of India in a public
interest litigation to do precisely that – rethink “the way things are”.
Sexual Harassment at Work
Sexual harassment was a form of discriminatory conduct at the
workplace. It hampered women’s constitutional rights to equality and
dignity. It sabotaged work performance, affected working environments,
impaired women’s progress, resulted in absenteeism and cost both
individuals and institutions in terms of qualitative health and growth.
The statistics of the International Labour Organisation (ILO) reveal how
55% of women from the ages of 14 to 55 in Italy have been subjected to
sexual harassment (2004); sexual harassment in the United States army
has cost close to $250 million (1999 survey); 40 to 50% of women in the
European Union have faced some form of sexual harassment; and a 2002
survey by Sakshi (a non-governmental organisation) of 2,000 persons
across workplaces found 80% acknowledging that workplace sexual
harassment existed in India.
Statistics apart, constitutional equality was never the lens through
which we viewed women’s experience of sexual harm at work. It took that
rare creative courage of a judge, the late Justice J S Verma (then chief
justice of India) to rise to the occasion and in 1997 we were given
Vishaka vs State of Rajasthan.
Unlike anything before it, Vishaka was a visionary decision. Primarily,
it filled a legal vacuum. Second, it viewed sexual harassment through
an equality lens and thus prioritised prevention. Third, in the absence
of legislation, it became legally binding on
all workplaces.
Unlike the criminal law, it was the State, the employer, and the
institution that had to own up for the equality and dignity of women at
work.
Finally, it gave us a map for creating accountability. Workplaces,
organisations, institutions (including educational establishments) were
compelled to raise awareness about sexual harassment, take steps to
prevent it and to offer effective redress. We sought and were granted
the presence of a third party expert on complaints committees for sexual
harassment, a mechanism mandated by Vishaka for all workplaces.
It was an innovative moment in the history of women’s constitutional
rights within all workplaces. That is what a visionary approach does for
people’s rights. It expands and uplifts them through an inclusive
process. Vishaka changed the map of how we could respond to other forms
of violence against women. Unfortunately, the moment and momentum was
frittered away by a state unable and unwilling to adhere to the bar
Vishaka had set. Despite the Government of India’s own ratification of
Committee on the Elimination of Discrimination against Women (CEDAW),
the women’s convention which promised to uphold the equality rights of
women in all aspects of life, its commitment rang hollow. Added to this
was increased public immunity to the daily sexual exploitation of women
who never took adequate notice of what Vishaka had to offer.
‘To Do Something’
Still, Vishaka made it impossible for us to slip back to the way
things are. It gave us language. Women’s experience of unwelcome sexual
conduct was no longer a patronising moral transgression of her
”modesty”, it was sexual harassment – a violation of her constitutional
equality.
Sixteen years post the landmark judgment, the Government of India
introduced a new bill. Such delay might have been justified had
excellence and improving on Vishaka been the goal. In reality, the state
simply awoke from its lengthy slumber to “do something”. Amidst the din
of the coal block allocations scam in the Lok Sabha, a defective Sexual
Harassment of Women at Workplace (Prevention, Prohibition and
Redressal) Bill was allowed to pass into law without debate in September
2012. Before the Rajya Sabha, a feebler introduction was made by the
minister whose “vision” suggested that it was a bill “to make them
economically empowered so that they can do their work properly” – a
condescending preface to constitutional equality which was the backbone
of the Vishaka judgment. Adding insult to injury, nowhere does the
debate find mention of constitutional equality.
Apart from the statement of objects, there is little in the language
and content of the new Act which has continued to raise the bar, let
alone retain the spirit of Vishaka. An itemised definition of what
constitutes “workplace” might have been more easily stated as any place
where a woman is present by virtue of her work – a suggestion supported
by many at a consultation held in the presence of parliamentary standing
committee members. Educational institutes have complained that the
definition does not go far enough to include students who, while not
workers, frequently suffer coercive sexual harassment on campus or
otherwise linked to their educational growth, a concern endorsed by the
Justice Verma Committee. Such institutes will need to adopt a creative
approach to ensure students are covered. Extensive cross-country
research carried out for the Vishaka hearings provided contemporary
approaches to the definition and a road map for preventing workplace
sexual harassment.
Use of such knowledge was scarcely evident in crafting the latest
Act. Inaccurate phrasing (a trait which characterises much of the Act)
of hostile workplace sexual harassment eclipses the relevance of the
most common forms of workplace sexual harassment. Mismatches between
subheadings and content compound that perception. A section titled
“Prevention of Sexual Harassment”, for instance, fails to deliver on
anything related to preventive measures. Instead, the section highlights
“circumstances” which may amount to sexual harassment. Such glaring
oversight betrays an abysmal lack of homework by the legislative
draughtsperson and ignorance about the issue by parliamentary
representatives across the political spectrum.
Diluted Version of Vishaka
As for the internal and local complaint committees now mandated under
the Act in all workplaces, political understanding of what was intended
to be an inclusive and informed redress mechanism simply is not there.
Diluting third party presence on these committees to persons committed
to “the cause of women” demeans the skill and specialisation required to
meet the nuances of workplace sexual harassment. In a recent example, a
lawyer committed to the “cause of women” was inducted into a government
department complaints committee. Post the proceedings, my office was
contacted by the department for a follow-up. Amazingly, the record
revealed how the person accused of sexual harassment was allowed to
openly question the complainant as part of the committee proceedings – a
fundamental violation of the non-intimidation principle designed to
protect complainants from just such practices. Third party persons
(lawyers or not) must bring knowledge, skill and capacity to the table
to ensure processes are professionally informed and unbiased.
Vishaka
envisaged an inclusive complaints committee to build ownership of the
issue, ensure fair treatment and enhance knowledge and experience around
workplace sexual harassment.
Of all sections, the most disturbing provision in the Act (Section
14) is one which punishes a “false or malicious complaint”. Such
inventions are only ever peculiar to gender-specific legislations which
relate to women and violence. In no other area of law do such penalty
clauses exist as a matter of practice. Its presence in the new Act has
no legal basis.
Investigations (and this is true of any law) are designed to
determine whether a harm occurred or not. That is it. To premise an Act
on the assumption that women are potential liars about their human
rights abuses reeks of stereotyping women and for that reason would be
constitutionally untenable. Flawed drafting further amplifies the lack
of political seriousness towards socially relevant legislation for
women. The “false” charges section provides that “mere” inability to
substantiate a complaint or provide adequate proof “need not” attract
action against the complainant, but does not enlighten us on what “need
not” means. Does it imply that if a complaint does not succeed, it
“ought not to but still might” attract action for false charges?
The absence of user-friendly, unambiguous and accessible language
throughout the new Act renders it prone to typical gender stereotyping
in such cases. In all consultations on the bill, this retrograde
provision was rejected outright. To foist it into the legislation can
only be perceived as an attempt to discourage women from making
complaints of sexual harassment.
In the 16 years since Vishaka, progressive developments have taken
place in international guidelines and practices on workplace sexual
harassment. Prescribing “duties” under the new Act as a way to compel
employers to prevent sexual harassment runs contrary to contemporary
human rights emphasis on promoting “responsibilities”. It is the
difference between what employers feel obliged to do (and hence resist
and scuttle) from what they would responsibly own and do (and hence, be
proud of).
Clearly, the absence of urgency and enhanced vision has given us a
diluted version of Vishaka. Dilution is what traditionally allows
sexually inappropriate conduct to fester, spread and eventually escalate
into rape in the first place. That is how it all began in Bhanwari’s
case. For that reason, a 16-year wait offers no excuse for not getting a
law that mirrored global standards of excellence and understanding in
systemically tackling workplace sexual harassment.
At the same time, legislation, flawed or otherwise, cannot excuse us
from implementing change, one which calls upon our own willingness to
connect the dots. At most, legislation has reignited attention towards
the plague of workplace sexual harassment. Owning the constitutional
subtext to make it work is our job. Unexpected but welcome initiatives
have begun to dot the landscape even pre-legislation. A recent award by
the industrial tribunal in West Bengal offers an unusually credible
direction in the sexual harassment case of senior journalist Rina
Mukherjee against
The Statesman.
Rina Mukherjee vs The Statesman
Within six months of joining
The Statesman, Rina
Mukerhjee lost her job. While the company alleged that her work was
“tardy” and “lacking in quality”, it suppressed Rina’s complaint of
sexual harassment against the news coordinator, Ishan Joshi. Within her
first month of work, Rina had taken her complaint directly to the
managing director (MD), Ravinder Kumar. Understandably, she expected him
to act professionally and intervene, but time passed and nothing
happened. Exploiting her status as a probationer, Rina was fired by
The Statesman.
Such patterns are common to organisations who fail to see the
importance of promoting a workplace free from sexual harassment.
Frequently, a woman on probation will find it impossible to make a
complaint, let alone succeed with one. Hence, most women hesitate and
tolerate the behaviour. Rina was an exception. Post her termination she
filed a formal complaint with the MD,
The Statesman’s owner, C R
Irani and the West Bengal Women’s Commission with the firm belief that
her termination was a result of her sexual harassment complaint.
The matter was eventually heard by the Industrial Tribunal (West
Bengal). In a rare display of social context, insight and clarity
amongst the judiciary, judge Kundan Kumar Kumai, rejected
The Statesman’s
claim that Rina only referred to “professional” harassment in her
complaint to Ravindra Kumar. In Kumai’s view, Kumar’s failure to dig
deeper was clearly suspect. In the judge’s words:
He [Ravindra Kumar] never started any enquiry however discreet it may
have been. Fairplay demanded at least an explanation from the senior
executives as to why there was an allegation of professional harassment
against them. Rather he has gone hammer and tongs over the delay made in
making the sexual harassment public, in writing. What else could she
have done... she made a verbal complaint of sexual harassment and
professional harassment and she was dismissed from her service even
without completion of her probation period.
It should also not be forgotten that the lady workman was not only
well-educated but had about ten years of journalism, with other well
known publications, behind her and not a novice or a rookie journalist,
at that relevant time.
Moreover...it becomes clear that there was no Committee on sexual
harassment, as per the Honb’le Supreme Court’s direction in Vishaka vs
State of Rajasthan, existing in The Statesman, at that relevant
time...to expect-the lady workman to file a written complaint and not to
believe the same, when it has been filed ‘at a later date’ is sheer
bias.
The Statesman was ordered to reinstate Rina and grant her full
back wages from the time of her termination to the date of the order.
It took 11 years but Rina won an order that dispels assumptions about
why women take time to complain about sexual harassment, how those in
power try through sheer numbers and gagged employees to dismiss such
claims, and how workplaces can no longer take legal compliance on sexual
harassment lightly. Had
The Statesman taken her complaint
seriously at the outset and complied with Vishaka, the result could have
been beneficial for all – for Rina, women workers, the workplace
environment and inevitably the company’s reputation.
Conclusions
Repetition creates a life pattern. Enduring workplace conduct which
sexually demeans, intimidates, offends, excludes and limits women is not
only about the patterns of sexist behaviour, it is also about the
repetitive nature of our own complacency. We have become immune to the
pervasive harm of sexual harassment and its unconstitutional character.
People like judge Kumai, justice Verma, Bhanwari and Rina remind us
that this need not be so. They inspire the rest of us who care, to use
our carefully crafted skills, know-how and passion to innovate and
transform the most ill-crafted provisions in law to work for us rather
than limit us.
Sexual harassment need not be “the way things are”. It is up to us as
political leaders, judges, responsible workplaces and individuals to
change that pattern of thought. Having found its way onto our
constitutional map for all to follow the direction and visibility of
workplace sexual harassment will be determined by the men and women who
understand the professional and human worth of speaking up. As
frightening as that can be, it will enable us to own our constitutional
equality not has some elusive right we should continue to aspire for,
but as something we can live, experience and embrace everyday. That is
not the way things are, that is the way things should be.
`ಬೆಂಗಳೂರಿನಂಥ
ದುಬಾರಿ ನಗರದಲ್ಲಿ ತಿಂಗಳಿಗೆ ಒಂದು ಸಾವಿರ ಸಂಭಾವನೆಗೆ ಅಡುಗೆಯವರು ಸಿಗುವುದೇ ದೊಡ್ಡ
ಸಮಸ್ಯೆಯಾಗಿದೆ. ಕಟ್ಟಡ ನಿರ್ಮಾಣ ಕಾರ್ಯದಲ್ಲೇ ದಿನಕ್ಕೆ ರೂ 500 ಸಂಭಾವನೆ
ಸಿಗುವುದರಿಂದ ಸರ್ಕಾರ ನಿಗದಿಪಡಿಸಿರುವ ಸಂಬಳಕ್ಕೆ ಯಾರೂ ಬಾರದಿರುವುದೂ ಖಾಸಗಿಯವರತ್ತ
ಮುಖ ಮಾಡಲು ಒಂದು ಕಾರಣವಾಗಿದೆ. ಅಡುಗೆಯವರು ಮಾತ್ರವಲ್ಲದೆ ಅಡುಗೆ ಬಡಿಸುವ, ತಟ್ಟೆ
ತೊಳೆಯುವ ಸಹಾಯಕರಿಗೂ ಬೆಂಗಳೂರಿನಲ್ಲಿ ಕೊರತೆ ಉಂಟಾಗಿದೆ. ಇದೀಗ ಅಡುಗೆ ಸಹಾಯಕರನ್ನು
ನೇಮಿಸಿಕೊಳ್ಳುವ ಹೊಸ ಪ್ರಸ್ತಾವನೆಗೆ ಚಾಲನೆ ದೊರೆತಿದೆ. ಅದರಂತೆ ಬಿಸಿಯೂಟ
ನೀಡುತ್ತಿರುವ ಖಾಸಗಿ ಸಂಸ್ಥೆಗಳಲ್ಲಿ 13 ಸಂಸ್ಥೆಗಳಿಗೆ ಅಗತ್ಯವಿರುವ 1657 ಸಹಾಯಕರು
ಹಾಗೂ ಅಡುಗೆ ಕೇಂದ್ರಗಳಿರುವ 380 ಶಾಲೆಗಳಿಗೆ ಸಹಾಯಕರನ್ನು ನೇಮಿಸಿಕೊಳ್ಳಲಾಗುತ್ತಿದೆ.
ಇಸ್ಕಾನ್ ಒಂದಕ್ಕೇ 2,572 ಸಹಾಯಕರು ಬೇಕಾಗಿದ್ದಾರೆ.
ಶೈಕ್ಷಣಿಕ
ಪ್ರಗತಿಯಲ್ಲಿ ಮಗುವಿನ ಗ್ರಹಿಕಾ ಶಕ್ತಿ ವೃದ್ಧಿಸುವ ಸಲುವಾಗಿ ಪೌಷ್ಟಿಕ ಆಹಾರ ನೀಡುವ
ಸರ್ಕಾರದ ಯೋಜನೆ ನಿಜಕ್ಕೂ ಶ್ಲಾಘನೀಯ. ಆದರೆ ಖಾಸಗಿ ಸಂಸ್ಥೆಗಳಿಗೆ ಬಿಸಿಯೂಟದ
ಜವಾಬ್ದಾರಿ ವಹಿಸಿರುವುದರಿಂದ ಹಿಂದುಳಿದ, ನಿರ್ಗತಿಕ ಮಹಿಳೆಯರಿಗೆ ಕೆಲಸ ನೀಡುವ ಯೋಜನೆಯ
ಆಶಯಕ್ಕೆ ಧಕ್ಕೆಯಾಗಿದೆ. ಪ್ರಗತಿ ಸಾಧಿಸಬೇಕೆಂಬ ಏಕೈಕ ಉದ್ದೇಶದಿಂದ ಎನ್‌ಜಿಒಗಳನ್ನು
ಯೋಜನೆಯಲ್ಲಿ ಸೇರಿಸಿಕೊಂಡಿರುವುದರಿಂದ ಯೋಜನೆಯ ಧ್ಯೇಯೋದ್ದೇಶ ಸಂಪೂರ್ಣವಾಗಿ
ವಿಫಲವಾಗಿದೆ. ಇದಕ್ಕೆ ಕೇಂದ್ರ ಹಾಗೂ ರಾಜ್ಯ ಸರ್ಕಾರಗಳೇ ಹೊಣೆ.
