Now that India has a law to deal with sexual harassment at the workplace, will women who lodge a complaint actually get justice?
Did you think women lawyers, because of the power they wield, did not face sexual harassment? Think again. It took a powerful delegation of some of the most prominent women lawyers like Additional Solicitor General Indira Jaising, Kamini Jaiswal, Indu Malhotra, Meenakshi Arora, V. Mohna and others to finally convince the Supreme Court that the law born out of guidelines it issued as far back as 1997 should also apply to courts. Shockingly, despite the long-standing Visakha guidelines on sexual harassment issued by the apex court, women lawyers have only just managed to convince it that sexual harassment is also a reality that they face, and as their workplace is the court, the provisions of the law should apply there.
For all practical purposes, the Visakha guidelines were the law until February 26, 2013 when the Rajya Sabha passed the Sexual Harassment at the Workplace (Prevention, Prohibition and Redressal) Act 2012. The Lok Sabha had cleared it on September 3, 2012 with practically no debate, as members were more interested in the so-called Coalgate scam than an issue that affects the lives of millions of women. In one way, I suppose we should be grateful that the law passed without too much discussion given the tone of the discussion in both the Lok Sabha and the Rajya Sabha around the Criminal Law (Amendment) Act, 2013 recently. We saw on full display the deep-rooted misogyny of male members of Parliament and the conservatism of some female members.
So will this law actually succeed in curbing the incidences of sexual harassment? Will women who suffer in silence now find the courage to register complaints? And when they do, is there any chance that they will actually get justice instead of losing their jobs, something that happens all too frequently where companies dismiss the complainant rather than looking into her grievance.
This law, flawed as it is, could help. It clearly lays down what constitutes sexual harassment, it covers women in the organised and unorganised sector (as well as domestic workers who were earlier left out), it requires any organisation employing more than 10 people to set up an internal complaints committee and a penalty of Rs.50,000 if this is not done. Delay in doing this could even result in cancellation of license. The law covers not just employees but also clients, customers, apprentices and daily wage workers and applies to private organisations, trusts, societies, educational institutions, NGOs and service providers. In that sense it is quite comprehensive.
The most important aspect of this law is that it recognises that women have a right to equality in the workplace and that sexual harassment causes them not only personal distress and injury but undermines this right.
Yet, there are serious flaws. Despite strong arguments put forward by women’s groups, the law includes a penalty for a false complaint. Thus, if a woman is not able to prove that she has been harassed, she will be penalised. As proving sexual harassment is much more difficult than physical assault, such a provision will most definitely deter many women from pursuing their cases.
The law also excludes women called “project workers”, that is women who are part of schemes like the Integrated Child Development Scheme (ICDS), village level health workers or ASHA and those employed for cooking mid-day meals. Why should this be so? Have those framing the law forgotten that the impetus to bring in such a law was the result of the gang rape of an incredibly brave village level community worker called Bhanwari Devi, who challenged the custom of child marriage. Women like Bhanwari Devi require more protection, not less. Similarly, the law has excluded women employed in the armed forces.
Even if the law had been stronger, is there any guarantee that it will actually work for women? It is fascinating to read some of the responses of readers when the news first appeared on the web pages of different newspapers about the law being passed. Here is one from a reader who identifies himself as Abhinav from the Men’s Rights Movement: “As an owner of mid size organisation, I am planing (sic) to fire all female workers from my organisation. I can’t bear this overload.” (DNA, February 27, web edition).
In other words, the law could backfire on women if smaller organisations decide it is simply not worth their while to employ women as apart from the Sexual Harassment Act, they are also bound by other laws that protect women’s rights as workers. Secondly, even where there are internal committees, women themselves will be deterred by the process and the provision of a penalty if they cannot prove their case. And once again, particularly in the smaller organisations, or even where women are employed on a contractual basis, there is nothing to stop an employer from simply dismissing them if they complain.
Despite this, there is one practical step that all women can take, regardless of whether they have experienced sexual harassment or not. That is to make sure that their organisations set-up the mandatory internal complaints committee. The provision for a penalty for not doing so is very clear in the law. If more women fought for such committees at their workplaces, the chances of cases of sexual harassment being heard would increase. And as in so many instances, one victory would encourage other women to fight for justice.
So even if in some instances the law is an ass, there is no need for women to be silent or defeated.