A demonstrator holds a sign reading “#Me Too” during a rally against sexual harassment in Shinjuku, Tokyo (Photographer: Noriko Hayashi/Bloomberg)  

#MeToo: Sexual Harassment Versus Social Misconduct – A Legal View

India’s #MeToo moment is here. Several women have come forward with tales of sexual harassment and assault. Their allegations target influential men from the entertainment industry and corporate India to journalism and politics. But where do you draw the line between sexual harassment and bad social conduct?

All allegations need not necessarily fall under the parameters of sexual harassment, Additional Solicitor General of India Pinky Anand told BloombergQuint in an interaction. The feeling of being harassed, she said, can never take place of an actual action which perpetrates sexual harassment on a woman. “Ultimately, sexual harassment has to be in a manner which is perceivable by law and as something which comes in the parameters of sexual harassment.”

Also, a common theme in most, if not all, cases is that the victims didn’t choose to file an official complaint against those they accused. A 2013 law makes it mandatory for organisations to have an internal complaints committee to report and probe such cases. The law has Vishaka guidelines that define sexual harassment and how companies must address them.

#MeToo: Sexual Harassment Versus Social Misconduct – A Legal View

“If companies actually take action against the accused, it lends a lot of credence to the issue,” Anand said, adding that the “women who are suffering will feel vindicated even if the action didn’t go further”.

Many stories are also from years ago and the law allows complaints within three years. Anand said an extension is possible if there’s a reasonable cause. These reasons, according to her, could range from the woman being in employment with her tormentor or if the perpetrator is in a position of influence which causes the woman to maintain her silence. “If you file a complaint beyond three years, an action could be taken if the court is satisfied that there were reasonable causes preventing you from coming forward to make the complaint.”

Here is the edited transcript of the interview:

Are all of these complaints within the ambit of law and can they be pursued legally? Some of them are in a grey area. Is it enough that a woman feels she has been harassed?

We will have to examine a lot of propositions in that respect. As far as the feeling of being harassed is concerned, I am afraid that may not be enough. Ultimately, sexual harassment has to be in a manner which is perceivable by law and as something which comes in the parameters of sexual harassment. A feeling by itself can never take place of an actual action which perpetrates sexual harassment on a woman, as much as we would like to cover the areas. If you take an example of a woman saying that somebody has looked at me in such a way that it is sexual harassment, would that be enough? There is too much subjectivity in this entire proposition. It would not really come squarely within the parameters of law to define it as sexual harassment.

What can an ICC (Internal Complaints Committee) do when the perpetrator or the women harassed have moved on to another organisation as is the case in many instances we have seen?

Yes, ICC is really supposed to be an internal committee board of a company when both of them are engaged in active employment. So as and when they cease to be in active employment what is the jurisdiction of that committee? Normally, when these committees are formed they have a mandate on whether it extends to existing employees or former employees. Some of these questions have come up in other jurisdictions also. But yes the internal committees would not have much say in functional position vis-à-vis former employees also.

For example, some of the steps they can take is to remove the perpetrator from the employment. If the person is already out of the employment, obviously he can’t be transferred or moved away. Also, the kind of action that can be taken or recommended by the committee is something which would be staring at themselves while they are only engaged in employment. You are right to the extent that it would be difficult to sustain actions when they were former employees at the point of time when action is contemplated. So in those kinds of cases possibly one of the recourse could be to ultimately go into the jurisdiction of criminal law, to report the case to the police, to have an FIR registered and to proceed from that stage onward. In any case, when the committee basically takes civil kinds of actions. For criminal actions, the committee ultimately recommends the case to the police and the police then takes the case forward as far the criminal case is concerned.

In some of these cases, there have been situations where it is a married man. He is propositioning a woman. She says no and he backs off. Today she feels the need to say that look this guy is such and such and I have to tell people. Is it against the law? Does what he has done come in the purview of the law?

It would. Simply because he has backed off doesn’t mean that it doesn’t come within the parameters of sexual harassment. Backing off doesn’t mitigate the crime.. as much as saying that, you know, you have committed the theft and you have returned the money. So would that mean that the theft is condoned? Of course, there are certain situations which can come into place. By itself a crime is committed at the point of time it is committed. Any kind of apology thereafter may mitigate as far as a sentence is concerned in the sense of punishment. But the action has happened and punishment in the sense of the conviction, if at all, under the criminal law has to take place, will take place. It sustains itself as and when it is done. Apology, withdrawal, backing off, saying sorry, in any manner retracting would not wish away the act complained of.

So a big question that’s coming up among a lot of women who are coming up now is that things have happened 10 years ago, 12 years ago, five years ago. And there is something in the sexual harassment prevention act which says something about it being between 3 months and 6 months. So there’s a whole set of uncertainty.  And also the fact that how do we hold companies accountable.. more than what the law dictates.. how do we hold companies accountable to have very firm policies within. Is that something you can do legally more than just having sexual harassment act?

I think the questions here are extremely enterprising. At the same time also something that would confront any person who is engaging this legal process of taking action against the perpetrators. So on the first front of what possibly would come in the purview of limitation.. and that is to say, can a complaint be filed at the point in time for sexual harassment. Or can it be filed only within 3 years which the law mandates? The law sets actually a time limit of 3 years for action to be taken based upon such an offence. But the law also permits extension of that time for any reasonable cause. So when the law contemplates that, particularly in sexual harassment cases, unfortunately, or otherwise, what is found is that women cannot come out easily in the sense of time frame. Let us say, for example, if they are engaged in employment along with that person, they would take a long time before they would actually come out in the open and complain. Similarly, if the abuser or the perpetrator is in a position of influence, either in a family or in the sense of working arrangement, it would be a number of years possibly before they could come out. So in law, there is a contemplation or condonation for extension of time for filing a complaint or taking criminal prosecution.

You do know that the ministry has also suggested that possibly the timeline could be any number of years, particularly in case of sexual harassment. It is extendable by the court in an extension of jurisdiction under the court of criminal procedure. If you file a complaint even beyond 3 years, an action could be taken if the court is satisfied that there were reasonable causes preventing you or the complainant from coming forward to make the complaint.

That is one of the aspects. Second, what more can you do? Let us look at this entire situation in one perspective. One is to take action. But definitely, another series that has come forward is the fact that people are raising the issue. I think it’s very important that the society recognises and gives due importance to the issue of ‘raising’. So its like saying the entire society rises up in arms against a person who is such a perpetrator to say this person is wrong. He has committed a wrong. So even if it’s not a criminal prosecution, by itself a social censure can act as a deterrent for the people to pursue such a situation. And some things like this have come up recently also where either companies have apologised or senior people have resigned or retracted from the company saying they knew that somebody else was engaging in such activity and they failed to take action. And I think its equally important... you are very right. I think it’s not only important to take action against a perpetrator... but also against companies and senior officers who failed to take action despite knowing that such action continue under the umbrella of the company and the employment conditions.

There should be an actionable situation against companies which failed to take due diligence. For example, to set up internal committees to take action and if the senior officials know about what is happening vis-a-vis a perpetrator and the action continues and they turn a blind eye, there should be action contemplated against the company because the position of influence should be of the company as opposed to the victim who is going forth. These are some of the aspects that we need to look into at the present point in time. It would be difficult to sustain much against the company as it stands. So we should be able to look at this in a greater aspect.

Is there a possibility of removing the time limit of such complaints. And the second question is that I’m hearing a lot about people saying this was consensual and why is this being raised. Now, any consensual arrangement which has led to a preferential treatment of one particular employee, doesn’t that amount to sexual discrimination of all the other employees? How does it look in the eyes of law? I’m just curious.

That’s a new one. You have a valid point to say that if it is consensual, there is some kind of favouritism which accrues at the benefit of that consensual relationship. Does that amount or could that amount to sexual discrimination in one form or the other? I suppose it could. You have covered the part of consensual. But the favouritism that ensues after that is something which could be pursued, but of course, do understand that that could be civil kind of liability or civil kind of action you could pursue rather than any kind of criminal action. But these are the new kind of thoughts or new kind of issues that are coming up when this campaign has gained momentum.

On the second question of time limit, I have said that Maneka Gandhi has suggested that the time frame should not be there for such kind of criminal offences. It is something which has been under thought process. what would come out of it, I would not be able to say at this point in time. But this is something which is being considered as a process. But at the same time, the law contemplates the extension. So you can have the courts condone delay because of the circumstances that a woman victim would find it difficult to pursue a case of sexual harassment against the addressor or the perpetrator because of the positions of power, influence, employment, benefits, whatever that might be. So I think the law itself should be developed on the line of a case-to-case basis where you can have an extension of time if there is enough justification made. Because it should not prove to be a law which should be used for some vested interest.

We have to be careful. When we start a campaign, when we start a movement, a new progression, it should not be taken lightly. It should not be made a situation where we tomorrow start looking at ourselves and saying did we do a right in starting such a legal action, such a movement... which is ultimately proven to be fabricated at times, concocted at times. So we must lend credibility in order to do justice to these kinds of issues. I think what is most important is that we don’t let it go down a lane which questions the very motion itself... for it being done on accounts of facts which are not really true or otherwise done for other vested interests. You must be very careful about that.

Women have sealed their lips for so long that everyone just wants to come out and speak. At this point is it important to give the benefit of the doubt realising that it is so difficult even to admit to yourself that something like this happened to you. Just allow that leeway to women who are speaking right now.

Of course there is full leeway for women to speak but at the same time whenever we come into the domain of society, whenever we come into the domain of individuals who are speaking out to society and want to vent for their grievances and want redressal of their grievances, I think it is important to maintain a line between what is right and what is wrong and to actually only go against what is wrong. If we don’t do that you will actually dilute any kind of situation later on.

Whatever we do, we must be careful. Social anger is one part of it. If we pursue a remedy and if it has to be tested against the backdrop of laws, of criminal laws, of investigations, of enquiries, of definitions, we must be able to fulfill it. The example that Sandhya mentioned... what if a man calls a woman out. By any means, a man calling a woman out may not fall within the parameters of sexual harassment but yes there are overtones. If they do happen and they come within those parameters then they can possibly. Stalking, for example, is something that would happen if there was a consistent action of following a woman or pursuing her despite her saying no. Then consensual situations. You have consensual situations, what happens if you step out of line there and there is a ‘no’ after that. Well its an admitted position, there can always be a ‘no’ even after consenting to any kind of social behaviour with each other. So these are questions that are being raised and will continue to be raised but I think it is important that we do set the parameters straight and we do set the record straight. Social anger, social venting is one thing but when you do go into action, it should be legitimate, it should be legitimised, it should be active but it should be very careful on the lines that we do lay down for ourselves that what is sexual harassment and continue along those lines so that we can maintain the line between what is sexual harassment and what is as sandhya said, bad social conduct.

One question on the burden of proof. Some people now have screenshots, but that is also a relatively recent phenomenon where you have smartphones to document this harassment. Sometimes it just down to the word of the survivor. How will that play out with that person wants to take it to the legal conclusion?

The law as it stands on sexual harassment, on sexual assault, on rape and each of these crimes normally place a fairly light burden in the sense that the complainant’s word is enough. And that has been sustained from time to time in various jurisdictions in various courts, including the Supreme Court which holds that the word of the complainant is good enough. So, therefore, the burden normally would shift to the other side to prove that it didn’t happen. That has to be the way these kinds of cases run because these things are not done in the open. There is no outside evidence, there is no recorded evidence aside from screenshots and all. So, therefore, it is difficult to sustain for a woman to actually make a complaint. The world of the complainant by and large is considered good enough in the eyes of law.

Where does the responsibility lie as far as the companies are concerned, if these committees are not as responsive as mandated by law?

So far I don’t think we have done much in that direction. We do need to work on it. It is correct to say if the companies actually take action against the employee, it lends a lot of credence to the issue and the women who are suffering will feel very much vindicated even if the  action didn’t go further. So, we do need to come to a position where we have to have companies liable who don’t have committees to form them and if they have committees which are not credible enough or are not taking action, if found out, then what kind of action can be taken against the company, or the committee for that matter, or do we have any other system for redressal.

Watch the interaction with Pinky Anand, TeamLease's Rituparna Chakraborty and journalist Sandhya Menon here: