India: No redress for sexual harassment at the work place
December 30, 2013
An Article from the Asian Human Rights Commission
Anjuman Ara Begum*
Sabita Lahkar, a Guwahati based female journalist called for a press conference on September 10, 2003 demanding justice publicly for sexual harassment at workplace. She was working as the Chief Sub-editor at a vernacular daily Amar Asom. She alleged that her senior, editor in chief and a well known literary figure in the state of Assam had sexually harassed her for a period of three years. She registered a case with the Assam State Commission for Women (case no: ASCW 44/2003) and another with the Assam Human Rights Commission (case no: 4652/03) and also sent letters to Press Council of India and to the Editors' Guild of India seeking action. A few journalists arranged a protest meeting in solidarity on September 10, 2003. She registered a FIR on 17 September, 2003 at the Paltan Bazar Police Station at Guwahati (case number: 321/17-09-03, under section 354/509 of the Indian Penal Code). The Assam Human Rights Commission acted on her petition and ordered the management of Amar Asom to constitute a redressal committee in its office as per the guidelines framed by the Supreme Court of India against sexual harassment at the workplace in 1997 (Vishaka vs State of Rajasthan and others, 1997 AIR 1997 SC 3011, popularly known as the Vishaka case). The management accordingly formed the redressal committee and Sabita was asked to depose her statement. Her grievances were recorded. However, the person whom she accused was not called for interrogation. Subsequently, a hostile work environment made it hard for Sabita to continue her job. Financial constrains had an adverse impact on her career and she remained jobless for few years. The police did not investigate the case properly in that the accused was never summoned for interrogation. Ten years after her complaint, Sabita again wrote to the National Human Rights Commission and issued a press statement entitled 'demanding justice' on November 22, 2013, reminding everyone that she is still there, waiting for justice.
Sabita's case is not the only one in the male dominated workplace in India. Women constitute 48.46 percent of India's population. According to the International Labour Organisation's Global Employment Trends 2013 report, India's labour force participation rate for women was 29 in 2009-2010. Out of 131 countries with available data, India ranks 11th from the bottom in female labour force participation. The low rank is due to the cultural attitude, social norms and fear of sexual harassment deterring women to take up certain professions in a country like India. Eight percent GDP growth of the country required women folk to join the workforce. This requirement is further encouraged by women empowerment programmes, reservation policies and other reverse discrimination initiatives.
With the women's entry into the work force, traditionally male dominated sectors became shared space, minimising the social division of labour based on gender. However, sexual harassment by co-workers became an issue for female professionals. Physical, mental, verbal and non-verbal sexual harassment at the workplace affects women's performance as the experience is humiliating and unsafe.
The development of legal safeguards against sexual harassment of women at the workplace is a recent phenomenon following the sexual assault of a female in Rajasthan in 1990s. In 1992, Bhanwari Devi, a female social activist was gang raped while working against child marriage in a village near Jaipur in Rajasthan. Bhanwari Devi belonged to an oppressed caste and was financially marginalised. In 1985, she joined a women's development programme undertaken by government of Rajasthan and later she became vocal against child marriage. As a result of her opposition to child marriage, she became a target of the dominant caste population in the village. On September 22, 1992, she was gang raped by five men while working at a field along with her husband. An FIR was filed and she refused to accept extra legal settlement with money as compensation. In 1995, the District and Session court delivered an order stating that dominant caste men could not rape a women belonging to oppressed caste. The judgement provoked nationwide protest and the women's organisations in the country started campaigning for justice against sexual harassment at the work place.
The gang rape left an irretrievable damage in Bhanwari Devi's life. After her brutal gang rape, Bhanwari was ostracised by her community and was not allowed to live in the village. She was considered as a 'bad' woman in the community and this impacted her children's education and marriage prospects.
A women's group filed public interest litigation before the Supreme Court of India claiming enforcement of fundamental right to equality, right to life with dignity and the right to work and carry out a profession under article 14, 19 and 21 of the Indian Constitution. In 1997, the Supreme Court of India passed its judgment in Vishaka vs. State of Rajasthan and others, popularly known as Vishakha judgment and framed elaborated guidelines to deal with the sexual harassment at workplace.
The Constitution of the India guarantees gender equality, the right to work with human dignity under articles 14, 15 19(1)(g), 42 and 21. A workplace free from the fear of sexual harassment is implicit and a pre requisite for gender justice. The Supreme Court of India noted in the Vishakha judgment that the 'present civil and penal laws in India do not adequately provide for specific protection of women from sexual harassment in work places' and that 'the enactment of such legislation will take considerable time'. Guidelines are meant to be followed by the employers and establishments and recommended for the establishment of internal complaint committee at the workplace to 'provide procedures for resolution, settlement and prosecution for the acts of sexual harassment' and suggested preventive measures. However, as always, the guidelines remained on paper.
Implementation of the guidelines remained discretionary and no mechanism was created to monitor its implementation. The majority of the work places lack internal complaint committees. Recently allegation of sexual harassment at the workplace was widely reported in the media by a law intern and a female journalist. Both of them alleged sexual harassment by their seniors while working with them. The Supreme Court constituted a three member penal to investigate into the case alleged by the law intern. The media house too invited a eminent personalities to constitute an internal complaint committee. This indicates that Vishakha guidelines were ignored by most of the employers including Supreme Court.
The absence of proper mechanisms and uncertainty of justice compels women in India to keep silence over sexual harassment for fear of losing their jobs and character assassination. Hostile environments after complaining of sexual harassment against their co-workers, often force women to leave organisations and face financial insecurity.
A ray of hope could be that the guidelines framed by Supreme Court has now received a legal shape and the Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act, 2013 was passed in April, 2013 and rules for implementation of this Act were notified on December 9, 2013.
Sexual harassment has been defined as sexually determined unwelcome behaviour which may be direct or implied, physical contact and advances, a demand or request for sexual favours, sexually coloured remarks, showing pornography, any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
A workplace would mean, any private sector organisation, hospital and nursing home, sports institution, any place visited by the employees in due court of the work, a dwelling house or workplace owned in 'unorganised sector'. And an 'employee' would mean any person who is hired on permanent or temporary, adhoc or voluntary basis. Domestic workers employed for household work are also covered by the Act.
The Act prescribes constitution of internal complaint committees comprising of a female as the presiding officer and other members made up of one third females. There should be another district level 'local complaint committee' to receive complaints from workplaces with less than ten employees. The Act also provides punishment for false or malicious complaints.
However, under section 10 the Act provides for 'conciliation' before the initiation of an inquiry giving a chance to the aggrieved woman to settle the matter along with the accused. The Act prescribes that monetary consideration cannot be a part of such settlement. Considering the unequal position of women in the society, this provision may be abused.
Being a state party to the Convention Against All Forms of Discrimination against Women (CEDAW), it's also an obligation on Indian Government to provide harassment free work environment to women as a commitment to end discrimination against women committed by both public and private actors. CEDAW defined sexual harassment at the workplace to include 'unwelcome sexually determined behaviour as physical contact and advances, sexually coloured remarks, showing pornography and sexual demands, whether by word or action and equality in employment can be seriously impaired when women are subjected to gender specific violence, such as sexual harassment in the work place'. The Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act, 2013 has compiled with this definition of 'sexual harassment'. Mere adoption of a definition is not enough. Several recommendations forwarded by CEDAW in 2007 are yet to be accepted seriously by the policy makers of the country.
The cases of Sabita Lahkar and Bhanwari Devi indicate the complex nature and neglect of the issue of sexual harassment at the workplace arising out the unequal position of women in the society. Sabita was a lower ranked employee and fell short to counter the influential personality of her senior assaulter. As a result justice was denied by the justice delivery system as Bhanwari Devi belonged to a low income marginalised community. Even after years, justice remains elusive for the aggrieved women who exhibited extra ordinary courage and defied the culture of silence over sexual harassment.
It is a deep concern that the response of law enforcement mechanism is frustrating and humiliating for women. Preliminary steps in accessing justice, such as filing an FIR is often a big hurdle. The legislative measures may not fill the gap as the fundamental concern of its enforcement is often ignored. Despite having the best laws on paper, implementation and enforcement of laws by agencies like the police remains weak in India. The absence of women in decision making positions at all levels makes it more difficult to implement gender specific laws and policies.
Sexual harassment, or more generally, violence against women is a result of deep rooted prevalence of direct, indirect, explicit or implicit discrimination against women prevalent across cultures. Long term, durable reformative policies in law enforcement architecture aiming to ensure substantive equality for women need to be adopted. Affirmative action like raising awareness on what constitutes sexual harassment, encouraging complaints against abuses, enhancing the capacity of institutions to investigate and prosecute complaints and fast access to justice bring ensure dignity for every women professional in India.
*About the author: Anjuman Ara Begum is Program Officer - India Desk at Asian Human Rights Commission