What happens when #MeToo goes to court
Among the few cases analysed by Mint, it took roughly 3 years to pronounce a penalty—which, in some cases, was just standing up for a day
New Delhi: She had been working in a Delhi-based government organization for almost a decade. In 2000, she was transferred to a different section within the organization, where roughly 50 men and 10-15 women were working. When she joined, she saw her male colleagues consuming alcohol during the day, and in the middle of work breaks, some of them went to a vacant room to play cards. In some time, the work environment became worse. There were figures of naked women drawn on the bathroom walls; hurried scribbles of the names of particular women would appear on the doors along with obscene remarks. Cuss words and figures of male private parts were traced on to the dust-laden tables. And sexist jokes and vulgar language was the norm.
Her female colleagues kept telling her that this is how it has always been, and that not reacting is the best option. They told her about that one time someone had accidentally left her soiled sanitary napkin in the toilet, and a male cleaner walked around the office with the pad asking each and every woman if it was hers. The men sitting there just laughed along, while all the women lowered their gaze.
She also tried to ignore the hostile work atmosphere for a while, but it seemed as if, every day, her male colleagues stooped to a new low. One day, when she opened her office drawer to pull out some papers, she saw a deck of playing cards inside. The cards had sex positions imprinted on them. She complained to her supervisor verbally. No action was taken. Instead, her complaint infuriated the men and instances of harassment, directed specifically at her, increased in number.
One morning, she saw a piece of paper lying on her table with a cryptic set of numbers scrawled on it – 17 14 77 14. She threw it away, but every day, a new paper with the same digits was lying on her table. Her colleague told her it was not a random series of numbers, but a vulgar tongue twister in Hindi that roughly translated to rape. Along with other female colleagues, she sent a written complaint to her senior-most officers, identifying the three men responsible.
They were reprimanded but that didn’t stop them.
“Everything was acceptable in the office. When I complained, some people kept asking me why I complained. They said rape toh nahi kiya na (they said they didn’t rape her)?,” she says.
She decided to go to the Internal Complaints Committee (ICC), and finally to the police. A First Information Report, or FIR, was filed, but only after a series of awkward questions accompanied by intermittent giggling by the male officer taking down the complaint. The police did take some action at least in the end. They came to the office and threatened the men that there would be consequences if they persisted with the harassment. The whole episode lasted nearly a year, and in 2001, she finally went to the court.
The long trek
When the legal battle began, she had allocated a separate shelf for all the papers in an almira, placed in a corner of a small room in her West Delhi apartment. Eighteen years later, the evidence documents, writ petitions, Public Interest Litigations, or PILs, and her personal diaries have taken over nearly two whole rooms. But despite the clutter, the 58-year-old survivor’s life went on.
Back in the early 2000s, she was in her early 40s; her son was five. Today, the son is an adult; she is nearing retirement; and the fight is still on. She was cross-examined for seven years; there were numerous hearings; 10-15 judges changed as the saga unfolded; and she ended up spending lakhs of rupees.
In July of this year, a Delhi court convicted the three men for “insulting the modesty of a woman” but gave the benefit of the Probation of Offenders Act, under which an accused can be released based on a bond of good behaviour.
“I went and complained on time. I didn’t let them pull me down. I didn’t compromise, but what happened in the end? They are convicted, yes, but not really punished. Eighteen years is a long time…I don’t really know who has lost and who has won,” she says.
At her workplace, she was ostracized. No one spoke with her. She was called a liar, and attempts were made to make her take the complaint back. Some told her, “If you complain against your own people, what do you expect? A warm welcome at work?”
Wherever she was transferred within the company after that, men kept making jokes around her complaint. They asked her if she was planning to complain about them too. Some touched her arm, or stared at her from a distance and said: Is this also sexual harassment according to you? Others mocked her by asking her if she thought she was the only beautiful woman in the entire organization.
The fear of having to wade through this maze of infinite complications is perhaps why many women either don’t report such cases, or compromise early on, instead of taking the criminal complaint route.
Under the law, there are two remedies for sexual harassment: civil (through internal committees) and criminal (through court). In civil cases, the highest penalty is removal from office, followed by a reduction in rank; then, denial of increments, and lastly a written censure.
Many women don’t choose the criminal route for the same reasons they don’t go down this route in matrimonial cases, says Delhi-based advocate Sanjoy Ghosh. “They don’t want to send the husband, or their colleagues, to jail. And if you do, you will be viewed as a militant lady….and some women can’t withstand that kind of hostility,” he says.
She was declared the troublemaker. In court, it was no different. The defence counsel kept asking her to read specific sections from her statement or the FIR, mostly passages that she didn’t even want to utter in public. The defendants kept slapping multiple writ petitions in higher court, and kept making her repeatedly narrate the incidents. If there was even a slight change in her statements, she was accused of lying.
Crime vs Punishment
It was only after the Criminal Law (Amendment) Ordinance, 2013, that sexual harassment as a separate crime entered the criminal law vocabulary. Cases from the early 2000s, like hers, were not registered as sexual harassment per se.
But despite the change in law, and a separate section (Section 354A) for sexual harassment, the conviction rates remain abysmally low, and the punishment handed down hardly seems adequate for many survivors after the long, harrowing judicial process. Hence, outlets like the recent #MeToo campaign.
In cases involving sexual harassment at the workplace, lawyers say that there is hardly ever a witness who will depose in court. Unlike the civil route involving an ICC, where the standard of proof is placed somewhat lower than ‘beyond reasonable doubt’, criminal cases are harder to prove. Since the filing of a chargesheet by the police takes close to a year or two, by then, possible witnesses either shift jobs or cities. The low conviction rate is an inevitable result, even in cases where women decide to fight the legal battle until the end.
The huge pendency in courts means the case hardly gets one or two hearings in a year,” says Rajinder Singh, managing partner Lex Jurists, a Delhi-based legal firm dealing with civil and criminal litigation.
“For any criminal trial to reach a conclusion in India, it takes 5-10 years. In sexual harassment cases, the conviction is low because in such cases you hardly have any witnesses—could be because they fear the consequences of speaking up if they are still in the same workplace, or they are no longer there when the trial actually begins,” he says.
Even in the 58-year-old’s case, most people, despite expressing their sympathies, didn’t muster enough courage to come forward and depose. They said that they didn’t want to risk it. One person who finally agreed to be a witness moved to Mumbai as the case dragged on for 18 years. Two others retired.
In another case of sexual harassment which went to court, in February 2013, a man T. Manikadan in an inebriated state fondled a woman’s breast while she was walking towards the New Delhi railway station. Before she could understand what was happening, he touched her private parts as well. The court eventually found Manikadan guilty of sexual harassment and also of outraging the modesty of the woman.
In the verdict, the court specifically observed that: “Surprisingly, the learned trial court disbelieved the testimony of the complainant only for the reason that no public witnesses were examined... It is common knowledge that, generally, members of the public are reluctant to become witnesses in any matter due to fear of the investigating agency/Court and undue harassment which may cause to them (sic).”
Despite this acknowledgment, the defence in most cases insists on as many witnesses as possible, and the courts have to follow procedure, which in turn delays justice.
“Judges are also restricted by day-to-day procedural issues. For cases of sexual harassment, you should have separate fast-track courts, and a time limit needs to be set. As of now, we have good laws, what we need is timely implementation,” says Pragnya Routray, a Delhi High Court lawyer, one of the lawyers who fought the 58-year-old’s case.
The accused Manikadam in the 2013 case was sentenced to undergo simple imprisonment for one year and a fine of ₹5,000 for outraging a woman’s modesty and also rigorous imprisonment of six months for sexual harassment.
The stringent punishment was possible only because the court took cognizance of the fact that the accused worked in the Indian Army, and was expected to protect, not become a perpetrator. Hence, the court observed, he did not deserve leniency.
Wait for a verdict
A Mint sample analysis of eighteen court judgements delivered in cases involving section 354A found that those that didn’t involve a minor, on average, took three years to arrive at a verdict of conviction or acquittal. The delays could, of course, become longer as the record of more convictions add up in the coming years, since the new section was introduced only in 2013 (see box).
Many of the cases that have resulted in a conviction, at least in the Delhi and Mumbai trial courts, are those in which the survivor was a minor. Under the Protection of Children from Sexual Offences Act, 2012, (POCSO), the law mandates that the trial has to be completed within a year “as far as possible”.
The punishment is also more stringent. For example, in 2014, a man in Pune was awarded a 10-year jail term for aggravated penetrative sexual assault on a minor a year earlier.
For the scores of adult survivors who go through the court system, however, the long trek to justice involves repeated rituals of having to prove oneself and humiliating personal remarks. The punishments are also “trivial” in some cases. As the 58-year-old’s lawyer told her in response to her complaints about the verdict in her 18-year-long case: at least, the court after pronouncing the judgement didn’t “punish” the accused by asking him to just keep standing for a whole day.
That’s actually not an unusual punishment in a sexual harassment case. In April this year, a metropolitan magistrate’s court in Mumbai sentenced a 22-year-old man to simple imprisonment (within the courtroom) “till the rising of the court”, after he was convicted. That “remedy” came three years after a crime was committed.
Similarly, last year, a special court in Thane, while convicting a 20-year-old man of sexual harassment, sentenced him to “suffer till the court rises”. After the day of mandated suffering ended, with the courts winding down after a busy day of dispensing justice in various matters, the convicts in both the cases walked out of the premises as free men.
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