Rape and harassment in the workplace5 min read . Updated: 31 Dec 2012, 08:39 PM IST
The sexual harassment Bill can provide a structure in which women feel safe to come forward with a complaint, but does it really improve on the existing Vishaka Guidelines?
When senior advocate Pooja Kute, member of Majlis, a women’s rights NGO, and who worked closely with the Maharashtra State Commission for Women on the drafting and implementation of The Protection of Women Against Sexual Harassment at Work Place Bill, 2010, first sat on the panel for a Union government cell that was conducting an enquiry into an allegation of sexual harassment in the workplace, she says they went by the Vishaka Guidelines of the Supreme Court, passed in 1997. “But the complainant filed a case against the panel stating that he had not been present when the witness was being examined, and that this was against the Service rules (the All India Services (Conduct) Rules which are stipulated for all government employees). We could not continue the hearing. The Service rules trip us up every time" Kute says.
The Protection of Women Against Sexual Harassment at Work Place Bill, 2010, passed by the Lok Sabha and pending in the Rajya Sabha, came about via a case of rape in 1997. Bhanwari Devi, who worked for a programme run by the Rajasthan government, was gang raped by a group that included higher caste members of the village and her own uncles and nephews, for protesting a child marriage in 1992. Lacking the resources or the knowledge to get medical tests, etc., done, Bhanwari Devi attempted to fight the case in court, but was denied justice. Sadhana Dadhich, head of the Pune-based NGO Nari Samata Manch, which has been actively pursuing the government’s agenda on the Bill since 2002, explains the circumstances surrounding its origins: “Further, during the judgement, a member of the bench remarked things like: How is this possible, Indian culture is not so fallen that members of one’s own family will rape you, how will a higher caste man touch a lower caste woman, etc. Justice was denied to her on technical grounds for rape, but groups of women activists got together under the banner of Vishaka and moved the Supreme Court for justice on the grounds that as an activist of the government-run programme to stop child marriage, Bhanwari Devi had just been doing her job. She got justice on the grounds of sexual harassment." The Supreme Court held that “each incidence of sexual harassment of women at workplace results in violation of the fundamental rights", “gender equality" and the “right to life and liberty". Those guidelines, instituted by the Supreme Court judgement, constituted the Vishaka Guidelines, and have stayed in place to protect women against workplace harassment ever since, and until the Bill, now constituted on its basis, is passed.
The Protection of Women Against Sexual Harassment at Work Place Bill, 2010, aims that all places of employment create an environment safe enough for a woman to lodge a complaint when harassed. Every employer with 10 or more employees must institute an internal complaints committee. The district officer must create a local complaints committee which becomes functional when an employer, having less than 10 employees, does not have a committee. The Bill is organized and well-functioning in states. While guidelines for who constitutes the internal committees are loose, they do require the presence of one member of an NGO and penalties have been prescribed to employers.
Advocate Flavia Agnes, founder of Majlis, says that among the flaws of the sexual harassment Bill is that it contains a clause that warns against malicious complaints. “How can any law begin on the premise that a complaint may be malicious or false? This seems to codify the age-old prejudice against women and institutionalizes it," she says.
Saheli, a Delhi-based NGO dealing with women’s issues, particularly points to the Bill’s focus on addressing complaints from the non-organized sector, including the NGO sector. Dadhich points out: “Among the changes that the Bill includes is the inclusion of domestic workers, which is a good thing, but it also excludes many sectors which need redressal, such as the Armed Forces." Kute believes the Bill, which stands for the Vishaka Guidelines in spirit, is preferable to the various criminal laws already existent that women can file cases under.
“There are some who feel criminal laws are required—this is a civil law—but we have seen that women do not opt for the criminal laws already existent. Why? Because it is a sensitive matter. A woman sometimes just wants an apology in writing, sometimes she prefers a transfer—while there are those who protest this—I feel the woman is being practical. She has a family, a reputation, peer pressure and social slander to contend with. If she is comfortable being transferred, that should be her call and the committee as it stands today has the power to enable it. I also feel the option of a settlement is valid and should be included because all other laws have the option of settlement terms. It offers the woman an exit clause," Kute says.
The most important aspect of the Bill for women is that it makes employers liable for a safe work environment. Criminal proceedings take the onus of harassment off the employer and make the woman liable to fight for justice on her own. A civil procedure instituted by a company panel keeps the company responsible.
The Bill is particularly useful to women who work in the government sector, for example domestic workers, sweepers on contract. A recent hearing cited the case of a domestic worker who needed to change into her uniform in a small room under the foot bridge. Her supervisor would brush against her every time she went in to change. When she filed a complaint, the local complaints committee took it up.
Dadhich points out, “While the Bill is flexible enough to allow private companies and the newer breed of multinationals the freedom to draft their own internal policies, it keeps in mind that in new urban situations, multicultural environments, one rule cannot work uniformly for all. A tribal woman’s expectation of conduct and exposure to interaction with the opposite sex is very different from what a working middle-class woman considers normal interaction. So the Bill allows for the woman’s perception of threat." It is these that the new inclusions to the Bill hopes to address.
Even then the sweeper was asked by the panel why she couldn’t change elsewhere. Cases like these, where the panel itself is not yet sensitive to the circumstances, are things NGOs encounter repeatedly. Kute says: “People on the committee say ‘ye to aise hi hai, characterless ahe, we know her, she is like that etc.’ Then we have to tell them we can’t go into all this. Then the enquiry is delayed, no? How will you do an enquiry if the panel itself is not sensitive?" Kute asks, adding that the Bill can be very useful for many sections of society caught in very rigid work systems, if it fulfils its mandate of sensitivity and awareness.