SEXUAL HARASSMENT : THE OFFICE WOES

Change is The Call, can Society do it?

With The Government having failed to check cases of Sexual Harassment in Public Offices, ensuring The Impact of a new law Addressing The Menace of Sexual Harassment will be a Tough Challenge.

Issue Date - 17/03/2011

Despite the Supreme Court’s landmark Vishaka judgement of 1997, which gave a voice to India’s fight for securing protection and justice for women employees (after it became the first instance that recognised sexual harassment against women as a violation of their fundamental rights), cases of sexual harassment against women – more commonly known as ‘eve teasing’ – continue to flourish across sectors and organisations. Recent studies have revealed that sexual harassment touches lives of nearly 40-60% of working women in the country. But what actually poses as the biggest concern for victims and employees is that it is not always considered as a problem at the first place.

However, the government, possibly recognising the existence of sexual harassment as an evil in society at large, has approved the Protection of Women against Sexual Harassment at Workplace Bill, 2010. The bill, prepared by the Girija Vyas headed National Commission for Women (NCW) after consultations with several women and civil rights groups, is currently under the scrutiny of the Parliament’s Standing Committee on Women and also happens to be a part of the 31 pending bills that the government hopes to introduce in the Parliament for approval during the ongoing three-month Budget session.

Before we delve deep into the pros and cons of the draft legislation, here are some key features that the government is banking on. The bill, according to the government, seeks to ensure a safe environment for women at work places, both in public and private sectors – whether organised or unorganised. It also includes setting up of an internal complaints committee in every organisation. Considering that a large number of establishments (41.2 million out of 41.83 million as per Economic Census, 2005) in India are with less than 10 workers and setting up of an Internal Complaints Committee (ICC) may not be feasible for them, the Bill provides for setting up Local Complaints Committees (LCC) to be constituted by the designated District Officer at the district or sub-district levels, depending upon the need. This twin mechanism, says the NCW, is to ensure that women in any workplace, irrespective of its size or nature, have access to a redressal mechanism. Employers who fail to comply with the provisions of the proposed Bill will be punished with a fine which may extend up to Rs.50,000. Taking into account the possibility that the woman may be subjected to threat and aggression during the course of enquiry, she is entitled to the option of seeking interim relief in the form of transfer either of her own or the respondent or seek leave from work. The Complaint Committees are required to complete the enquiry within 90 days and a time-frame of 60 days has been given to the employer/District Officer for implementation of the recommendations by the Committee.

When it comes to understanding the intricacies involved in dealing with matters of such nature, the Vishaka vs Rajasthan case in 1997 proved as an eye-opener for the Indian judiciary and the country at large. The draft bill has also been drafted in line with the SC guidelines which were formed in the absence of any specific law against sexual harassment. These guidelines defined parameters that amount to sexual harassment, provided for preventive and remedial steps to make the workplace safe for women, framed guidelines to be followed in this context and went on to define the complaint mechanism and provisions for effective disciplinary action against those found guilty. In fact, it was only after this case that sexual harassment came to be categorised as a human rights violation. Vishaka guidelines apply to both organised and unorganised work sectors and to all women, whether working part time, on contract basis or in voluntary capacity. The guidelines are a broad framework which put a lot of emphasis on appropriate preventive measures that could be adopted. However, over thirteen years have passed since then and while the SC verdict in this particular case has been instrumental in bringing guilty to justice, there has been little improvement in the scenario in terms of making working women actually feel safe, which leads us to question : How effective the new policy will be?

According to the latest data provided by the National Crime Records Bureau (NCRB), the national capital alone accounted for about 25% of all rape cases, 1.1% higher as compared to 2008. In terms of crime against women in the country, there was a rise of 4.1% with a total of 203,804 cases registered in 2009 as compared to 195,856 cases reported in 2008. But what is notable is that records such as these only indicate the number of cases registered and do not have provisions to account for cases which never got reported. So, while the figures might lead you to believe that such incidences are declining, the other side of the story could also imply the hesitation among victims to go ahead and report unapproved advances by their superiors or counterparts. Also, there is no in-depth analysis to ascertain the causes behind the rise or decline in these numbers. Crimes against women include rape, kidnapping and abduction, dowry death, torture, molestation, sexual harassment, immoral traffic and indecent representation of women. The number of sexual harassment cases reported under section 509 IPC has decreased by 9.9% over the previous year (12,214). Andhra Pradesh has reported 32.0% of cases (3,520) followed by Uttar Pradesh 22.9% (2,524). Andhra Pradesh has reported the highest crime rate of 4.2% as compared to the national average of 0.9%.

While the government often tends to largely attribute the rise in cases of harassment of women at workplaces to the private sector, a closer look unveils a number of similar cases in ministries, departments and public sector undertakings. What is worrisome is that cases involve officials at the absolute helm of affairs which is often seen as the true portrayal of the misuse and abuse of power within the ambit of maximum government control.

Recent studies reveal that sexual harassment is still prevalent, hidden or disguised, and exists in all kinds of offices, – be it the government sector or private. A look at some of the major cases within the Government’s spectrum where the existing guidelines have been found to have been flouted with utter disregard reveals the government’s failure in controlling the menace. Rupen Deol Bajaj, a senior IAS official, was slapped on her posterior by K. P. S.Gill, former Chief of Police, Punjab, at a dinner party in July, 1988. Bajaj filed a suit against him, despite the public opinion that she was blowing it out of proportion, along with the attempts by all the senior officials of the state to suppress the matter. Almost 10 years later, her efforts were rewarded when the Supreme Court fined Gill Rs.250,000 in lieu of three months of rigorous imprisonment handed to him under Sections 294 and 509 of the Indian Penal Code (IPC). The most notable feature of the subsequent trial was the complete unwillingness of witnesses on either side to provide reliable or accurate testimony. Most of the guests at the party were senior bureaucrats and officials.

In 2004, in a first ever incident of its kind, the Government found C. Venkataramana, Chairman and Managing Director of the state-run National Aluminium Company Ltd. (NALCO), guilty of sexual harassment and terminated his services. The case had hit headlines in February 2003, when a senior NALCO executive complained that Venkataramana had tried to sexually harass her. The incident took place in Mumbai when the woman met Venkataramana for her promotion, which had been pending for several years. The CMD is said to have invited the woman to a hotel, where he offered her drinks and later tried to molest her. The woman, however, somehow managed to escape. Following the furore over the incident, NALCO hurriedly conducted an internal probe – and predictably gave a clean chit to Venkataramana. However, the government took serious note of the development and constituted a committee, as prescribed by the Supreme Court in cases of sexual harassment, and the culprit was brought to book.

Another case is that of N Radhabai vs. D. Ramchandran. When Radhabai, Secretary to former minister D. Ramchandran, protested against the minister’s abuse of girls in welfare institutions, Ramachandran allegedly attempted to molest her and later dismissed her from service. Radhabai approached the SC, which in 1995, passed the judgment in her favour, and also ordered the department to pay her salary arrears and perks from the date of dismissal.

In August 2008, a RAW official tried to kill herself outside the Prime Minister’s Office after complaining of unnecessary delays in case of sexual harassment she had filed against her seniors. Nisha Priya Bhatia had accused her seniors of molesting her while she was on duty. The case is still pending. After having diligently served for 15 years as an official in the personnel department of a rural bank in Madhya Pradesh, Seema Sharma suddenly found herself flooded with memos and subsequent transfer orders after she resisted sexual advances from her new boss.

While incidents involving the high-ups in power does highlight the fact that it is prevalent but rarely out in the open, not much has changed for women at the workplace, says Delhi-based advocate Dheeraj Malhotra. “Women are forced to approach social organisations and courts as they fail to get justice in their own offices. This, despite the fact that the Apex court has underlined that sexual harassment at the workplace is not only personal injury to the victim, but also a violation of fundamental rights,” he adds.

It is true that the silence of the victims gives strength to the greatest human rights violators in India, and reporting such incidents are important to bring about the change required. But then, it is also pertinent to note that many cases go unreported as they also threaten to ruin the womens’ dignity. “The society itself would ensure that she cannot live a peaceful and dignified life. Here the fear of the society plays the greatest player who rips off the victim’s right,” says Pune-based human rights activist Alka Joshi, calling for drastic changes in societal beliefs. “When one such victim in Maharashtra decided to pursue her complaint, many of her senior colleagues told her that her experience was nothing extraordinary, and that pushing it would not harm the men but only give her a bad name. Unfortunately, even senior women officers advised her to give up, and she eventually did,” she observes, adding, “Even when complaints do come up, the attitude of authorities have been found to be crude, dismissive and insensitive in many cases”.

The most recent example is the case of Komal Singh, an air-hostess with Air India, who suffered a major setback in a sexual molestation case after the National Commission for Women chose to tread a safe path by coming out with a report that confirmed “assault”, but did not take a stand on whether the employee had been sexually molested by the pilots in the cockpit of a Sharjah-Lucknow-Delhi flight on October 3, 2009 or not. In an affidavit filed later by Komal, she went on to state that she was being pressurised by certain members of the NCW to withdraw her complaint, and that even her version of events was being ‘doctored’. The NCW finally stated that the air hostess had not been molested, but only pushed during a mid-air scuffle.

Sexual harassment has for long been recognised as the most intimidating form of violence in many developed countries where they have not only taken note of how degrading the experiences of sexual harassment can be for women as well as employers, they have also adapted legislative measures to combat sexual harassment. The point is that combating the issue of sexual harassment involves developing an understanding and requires a change of attitude in all employees, colleagues, friends, administrators, employers and the law makers. Even if it was recognised late in India, it cannot be an excuse to allow it to flourish to an extent that it becomes unnoticeable. As the world celebrates the liberalisation of women, in India, the real challenge for the Act will be to effectively address deeper issues which generally never come to fore.