Recent allegations of sexual harassment against filmmaker Anurag Kashyap by actor Payal Ghosh have opened fresh debates on the ‘Me Too’ movement in India. Many have raised concerns over the veracity of the allegations. With Mr. Kashyap’s colleagues, ex-employees and former spouses coming out in his support, questions arise as to whether ‘believing the survivor’ is a slogan reserved only for certain women. While Ms. Ghosh has filed an FIR, Mr. Kashyap and other female actors named by her have initiated legal action at their ends. However, criminal law is unlikely to be able to maturely handle the complex elements of sexual harassment at the workplace.
This article highlights issues stemming from abandoning due process mechanisms for nebulous allegations on social media, and underscores how this could potentially intensify the problems confronting survivors, furthering their marginalisation. Devising a holistic response to sexual harassment lies in the creation of strong, formal systems at the workplace where survivors can level charges without fearing a backlash.
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Towards a just system for all
The controversies surrounding ‘Me Too’ are complicated by the reality that the movement itself is a result of the failure of due process. Years of apathy towards the Supreme Court’s Vishaka guidelines failed to provide a safe working environment for women and actively created hurdles when they sought legal recourse. Yet, losing sight of the fact that the ‘Me Too’ movement is only a symptom of the problem and not its cure is missing the forest for the trees. Today, when we have a law on sexual harassment at the workplace, it is imperative that this new-found attention on ‘Me Too’ paves the way for systemic changes which are based on fair principles of justice delivery to all parties.
A look at some of the cases arising out of the ‘Me Too’ movement in India validates the urgent need for creating systems that are fair to all parties. For instance, when anonymous allegations of sexual harassment were made against writer Varun Grover by a woman claiming to be his junior and colleague at a theatre group of Banaras Hindu University, Netflix considered dropping his web series, Sacred Games 2 . Mr. Grover clarified in detail how the dates in the allegation proved that he had not worked with the woman at Banaras Hindu University. Later, an independent inquiry cleared him of all charges.
Similarly, in one of the incidents which embroiled comedy company All India Bakchod in a major controversy, comedian Utsav Chakraborty was accused of sexual harassment, and CEO Tanmay Bhat was accused of not taking appropriate action. A year later, one of the women who had accused Mr. Chakraborty acknowledged having consensual sex with him and another clarified that she was not underage, although the messages were unsolicited. It remains unclear if the women making allegations in these cases had access to formal complaint registration and grievance redress mechanisms, such as the Internal Complaints Committee (ICC) or the Local Complaints Committee (LCC) in accordance with the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
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The mere presence of ICCs or LCCs may not be sufficient, as sexist, prejudicial attitudes towards women are often pervasive among employers as well as members of these committees. But this is no reason to imply that the framework itself can be substituted by a culture of naming and shaming. Drastic outcomes like shutting down of companies, firing employees or stalling shows result from not having strong systems in place, and that is precisely why every institution must put its weight behind building robust systems.
The scale of violence against women in India demonstrates that the popular rhetoric of women ‘abusing’ the system through false complaints is unwarranted. However, notions about ‘believing the survivor’ must be grounded in the principle that a woman cannot be disbelieved merely because she does not conform to societal standards of morally appropriate behaviour. At the same time, one cannot discount the possibility of a false allegation, or place subjective feelings over objective facts by characterising all inconsistencies in a woman’s statement as evidence of trauma.
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A just process necessarily allows all parties to probe, and decision-makers to assess the credibility of the parties and witnesses. Giving a full and fair opportunity to the accused to defend themselves forms part of inalienable principles of natural justice. Diluting these principles not only increases the scope of people being unfairly and disproportionately punished, but also makes way for accused persons to be vindicated later in lawsuits in court, as artist Subodh Gupta tried through a civil defamation suit, which ended in a settlement leading to taking down of the posts. This could further undermine the credibility of the survivors, rendering them more vulnerable. Seeking solutions in call-out-and-cancel cultures also does not help survivors in the long term. Survivors seeking closure through such calling out may end up disappointed, especially since structures of power operate in a way that even when powerful men are called out, their lives seem to go back to normal after what might be just another tumultuous episode.
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Issues of identity
Moreover, issues of identity, especially in a country like India, are way more nuanced than a ‘men versus women’ debate can address. Not all women can access the Internet in the same ways to make allegations against perpetrators. Similarly, there exists the very real possibility of men from vulnerable sections being unable to counter charges against them on social media and avail formal legal processes to rebut arguments to the same extent as their more privileged counterparts. Moreover, in a political climate where every dissent is stifled by exaggerated allegations, it is all the more important to create, enable and retain systems which protect the rights as well as the mental and physical well-being of survivors and the accused.
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Fair solutions within the due process framework are rarely easy to arrive at, given the ambiguity of what constitutes sexual harassment in different contexts, as well as the general atmosphere of sexual policing in India. Despite this, feminist efforts need to be directed towards implementing the law on sexual harassment while simultaneously working on its inadequacies. Building strong systems would go a long way in assuring survivors that their complaints are taken seriously, without sexist prejudices and power structures getting in the way.
Preeti Pratishruti Dash is a Research associate at Project 39A, National Law University and works on various issues of criminal law. Views expressed are personal
