Sexual harassment cases usually have a marked power imbalance between the victim and the accused; this may well affect the negotiation scenario, with the victim being unable to hold her own
In recent times, the issue of sexual harassment of women at the workplace has assumed prominence with serious allegations being made against a former Supreme Court judge, whose court pronounced verdict on huge scams, and the editor of a magazine with truth and exposure as its masthead. In the case of the former, a court-appointed committee found that the complainant’s statement prima facie disclosed an act of unwelcome behaviour of sexual nature, but matters went no further as the judge was found to have demitted office prior to the commission of the alleged offence. The second case has followed the traditional process of criminal law, beginning with investigation and arrest.
A Central Act brought into force on December 9, 2013, provides an alternative method of handling complaints of sexual harassment made by working women. The purpose of this article is to highlight some key problems with this well-meaning but inadequately-formulated piece of legislation.
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, was a response to the public outrage over what has come to be known as the Nirbhaya case. The redress forum under the Act is an Internal Complaints Committee appointed by the employer to be comprised of a woman senior employee, two other employees, and a social worker; it is mandated that at least half the committee must be constituted of women. Where such a committee is not set up by the employer, or where the complaint is against the employer himself, a provision is made for the setting up, by the District Magistrate, of a panel drawn from social workers and NGOs.
Based upon the complaint of the victim, the Committee is to conduct an inquiry and submit its recommendations to the employer (or District Magistrate), who is required to take action on the same. Where an offence is made out, the punishment for misconduct is as per the service rules of the employer; where no such rules exist, then as per the Rules under the Act. Under the Act, redress ranges from apology and censure to withholding promotion and increments, and stretches to termination. The Act, however, is silent on the situation where the employer’s service rules contain less stringent provisions.
Section 10 provides the possibility for conciliation between the parties to be undertaken by the Committee prior to inquiry; this can be done only at the request of the victim. Conciliation is the process where a neutral engages with the parties to try and arrive at a settlement of their differences and disputes. The process has been in vogue in our industrial dispute enactments and in matrimonial litigation proceedings.
Under the synonymous term of mediation, it is increasingly a feature of the country’s courts, many of which have set up their own mediation centres, offering the service free of charge in thousands of cases where lawyers trained in the process mediate a range of commercial, property, and divorce disputes. The advantages are several — it enables better communication and understanding, is conducted in a confidential setting, and seeks a solution acceptable to both sides. At first sight, therefore, it seems quite reasonable to contemplate conciliation being used in sexual harassment cases.
However, this is an area where we have to tread warily, and certainly not rush in. Sexual harassment cases usually have a marked power imbalance between the victim and the accused; this is implicit in the nature of the offence. This may well affect the negotiation scenario, with the victim being unable to hold her own, and end with a result advantageous to the other side.
Some acts labelled as harassment are grave violations of a woman’s body and dignity; these ought not to be the subject matter of a compromise. There is need to draw clear markers between negotiation and punitive action and to realise that some offences have the starkness of black and white, without intervening shades of grey. In these cases, there is also the need for co-workers to know the identity and culpability of the transgressor so as to safeguard themselves; such information will remain cloaked in the confidentiality of conciliation agreements. In a wider context, public naming can be a societal need.
All this is not to take away the choice of the victim, who is the central figure of our concern, but to emphasise that there are factors balancing the attractiveness of a quick settlement. The Act gets some basics wrong.
Firstly, it is a central tenet of the conciliation process that the neutral, being privy to confidential information usually obtained in private discussions with each party, cannot, if the conciliation fails, become the adjudicator to determine wrongdoing. The enactment gives both roles to the Committee.
Secondly, good conciliators come from training and experience, and must possess the sensitivity to deal with emotionally distraught parties, apart from deftly maintaining negotiating balance. It is not likely that the panel members taken from the organisation’s employees will possess such skills, besides the fact that they may well think twice before indicting a superior.
Third, compensation is a key punitive and deterrent measure, as cases abroad show. This Act enables the Committee to recommend compensation and preserves the right of the court to do so as well but forbids the award of monetary compensation in conciliation proceedings. The logic is unfathomable, unless the lawmakers thought that there would be a flood of women blackmailing hapless men with deep pockets.
Fourth, there is little justification for the Act to mandate secrecy when the Committee reaches a determination of guilt and recommends punishment.
The person who has poisoned the workplace may well do so again if not identified.
A mindset of empathy
Given that many victims will shy away from the publicity, the procedures, the delay and the harshness in the criminal justice system, the alternative structure and process is welcome, but needs much alteration.
Helping victims to make informed choices about the different resolution avenues, providing trained conciliators, a monetary compensation settlement option, an inquisitorial approach by the Committee when indicated, naming and shaming in grave cases, and in-camera trials are some areas of improvement. We need something else which legislation cannot provide — the mindset to understand the fears, compulsions, and pressures on women victims.
The legal concept and test of the “reasonable man” should give right of gender way to that of the “reasonable woman”.
(The writer is a Senior Advocate and Mediator. His email is firstname.lastname@example.org)
Keywords: Sexual harassment, workplace harassment, sexual harassment in workplaces, Vishaka guidelines, Internal Complaints Committee, molestation, voyeurism, stalking, gender-neutral laws, gender discrimination