#MeToo Shows The Legal System Has Failed Indian Women, But There Is A Way Forward
If the #MeToo movement proves one thing, it is the failure of the legal systems in the country to deal with a legal injury of a woman who has been a victim of sexual harassment. Enough has been said about the reasons why women choose not to report the predatory nature of their supervisors at the workplace, and in case of the #MeToo within Indian media, the editors within the newsrooms. In response they are told — why have you not lodged an FIR; why have you not lodged a complaint with the Internal Complaints Committee; why had you not gone to court when the incident occurred? Often, the trauma which a woman who has been sexually harassed faces, prevents her from accessing courts at the time when the incident occurred. It also prevents her from communicating the injury to her dignity and bodily integrity with her near and dear ones and her colleagues at the workplace. She carries the secret so deep down that it virtually reduces her to a being less than human. Tragically, the failure to report lowers her self-worth in her own eyes.
When women do speak out, even if it is 10-20 years after the incident, they must be taken at face value, heard, trusted, believed — and be given the right to an investigation into their allegations. To report or not to report is an individual decision, and often depends on their emotional readiness to face the consequences.
No two persons react to sexual harassment in the same way. Some may settle their scores publicly and instantly; while others may avoid the perpetrator altogether; still others may choose to resign from their workplace. Yet many may have no choice but to continue with the job for economic compulsions. The law requires a customised solution for each of these eventualities.
Some of the women who have been outing their harassers want only an acknowledgement of the harassment. A declaratory acknowledgement in a duly constituted forum is a recognised form of justice.
Yet others may or may not want prosecution. However, when it comes to rape and sexual abuse, the State is obliged to prosecute regardless of the survivor’s decision.
Problems With Limitation Period
In such cases, the issue that confronts the women happens to be the periods of limitation within which a court of law entertains either a criminal complaint or civil suit. In this context it is worth mentioning that the present government has taken a progressive step in suggesting amendments to the Prevention of Children from Sexual Offences (POCSO) Act, extending the period of limitation during which those who were sexually abused as minors can lodge a complaint, from 18 – the age of majority – up to the time when they attain the age of 25 years. Once this is done, the government should make similar amendments to the law of limitations for filing complaints by adult women.
While periods of limitation under Section 354A of IPC for sexual harassment is three years, it should ideally be three years from the date on which the woman is emotionally ready to file a complaint.
It is worth noting that in case of rape or serious forms of sexual abuse, these crimes which carry a punishment of above seven years, have no period of limitation anyway. There is an associated problem in filing civil suits.
Surely one way forward for women is to claim a huge amount of damages against the employer for having harboured sexual predators and having allowed them to get away with it. Here, the employers do not have the option to say that they had no knowledge — it is their job to be aware of the working environment in their enterprise.
The legal problem here is that all civil suits require an exorbitant amount of court fees that a woman complainant would have to pay to make a claim of damages against her employer. This too has a simple legal solution. Several years ago, the State of Maharashtra had issued a notification exempting women from payment of court fees in relation to claims for violations of human rights and sexual violence against them.
Women have been using the same to report sexual harassment, and successfully so. Similar notifications need to be issued by all states, exempting women from court fees in cases of sexual harassment and/or sexual assault against them, which will make a big difference in the number of reported cases of sexual harassment.
This brings us to the question whether there is sufficient understanding of what sexual harassment is at the workplace. It appears that there is no clarity on these issues despite detailed definitions in the Vishaka judgment (1997) as well as in the Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act (2013).
Hostile Work Environment
Creation of a ‘hostile work environment’ is a very serious form of sexual harassment at workplace. A hostile work environment is created when the workspace has a sexually charged atmosphere. This includes sexually loaded remarks being made by co-workers and supervisors in relation to a woman’s clothes or looks on a routine basis, misogynistic talk, and all-pervasive acceptance of sexual harassment as a form of entitlement, or part of the work culture.
Any woman at the workplace, whether she has faced verbal or physical sexual harassment, can complain of a hostile work environment as a form of sexual harassment.
In other words, any woman whether she has been personally sexually harassed or not, has the locus standi to bring a case.
This takes the burden off the woman harassed who may have not had the necessary courage to bring it to the supervisors. A trade union or a workers union operating within the establishment can also raise the issue and file a complaint.
Need For A Commission Of Inquiry
We are in a situation where the allegations of sexual harassment are so pervasive — ranging from the judiciary, the legal profession, the newsrooms, the entertainment industry, academia, and politicians — that it would be counterproductive to deal with each case individually, and see them operating within silos.
What is required is a commission of inquiry to inquire into the failures of the existing legal systems and the Sexual Harassment Act to prevent the happening of these incidents. This can be done by setting up a commission in which women and men have a legal/quasi-judicial platform to tell their stories.
It is also necessary because such a platform would also give immunity to women from defamation suits being filed against them for coming forward and telling their version of sexual abuse that they suffered. It would simultaneously give a forum to the person against whom the allegation is made to come forward and place their side. The findings of such a commission cannot result in punitive action against the offenders, but can provide the space for women to speak their truth without fear of legal consequences. The recommendations of the commission may also end in major reforms of the law, helping prevent, or at least, significantly curb sexual harassment at workplace.
Finally, the credibility of such a commission will depend upon the people chosen to head the commission. If they are not people in whom the aggrieved women can repose confidence, the women will not come forward to give evidence. After all the Verma Commission was able to inspire confidence in women — more than 2,000 persons submitted from all over the country their depositions to the commission.
Beyond Law: A Social Change
At the end of the day no law can end sexual harassment at the workplace, so long as it is considered an entitlement by people in positions of authority. The employers will tolerate sexual harassment at workplace, so long as there is impunity for the board of directors of the corporate sector, and sexual harassment will continue to exist. When it came to the board of directors of TERI, very eminent members on the board turned a blind eye to sexual harassment by RK Pachauri, and woke up rather late only after women were out on the streets demonstrating against him.
Therefore, what is required is wide-scale sensitisation programmes organised by the employers who must bear the responsibility of actively creating a non-hostile work environment for the employees.
Periodic workshops on prevention of sexual harassment and how to address it without fail, familiarisation of the employees with the Sexual Harassment Act by inviting experts from the legal field to give presentations, regular monitoring of supervisor behaviour via feedback loops, creating a truly gender-equal workplace where abuse of positions of authority is not only frowned upon but actively prohibited, etc are some of the ways that would go a long way in striking sexual harassment at its root, and carving out a safe and happy work environment.
Indira Jaising is a senior advocate at the Supreme Court, and a former Additional Solicitor General.
The views expressed here are those of the author’s and do not necessarily represent the views of BloombergQuint or its editorial team.