Business Today

Indira Jaising

While women are capable of dealing with this by themselves, there is an even more formidable problem they face: Lack of an adequate legal remedy

Print Edition: October 17, 2010

Why has sexual harassment reached epidemic proportions at the workplace? One obvious answer is that women themselves are more visible in workplaces and they have to some extent broken away from the stereotyping at work - they are no longer confined to being secretaries and stenographers. This poses some issues of adjustment for men, who are accustomed to treating them as arm candy. While women are capable of dealing with this by themselves, there is an even more formidable problem they face: Lack of an adequate legal remedy - and indeed no remedy at all when it comes to the private sector.

The fact is that the Vishaka judgement (of the Supreme Court, which provides the basic definition of sexual harassment) has ended up being nothing more than a statement of intent for the private sector. There are no sanctions for failure to set up a complaints committee and nowhere to go if there is sexual harassment. A woman who is harassed can only file a civil suit after paying huge court fees and fees to lawyers. Then she will have to wait for a lifetime for the outcome during which period she will be out of a job.

The public sector has its own problems. All public sector undertakings do have sexual harassment committees in place and a writ petition can be filed against the State for relief. However, a recent case required the woman to face yet another inquiry under the disciplinary rules, even after the internal committee came to the conclusion that sexual harassment has taken place.

Public sector employees argue that they can only be removed by the disciplinary authority and not on the basis of an inquiry by the internal committee. This means the woman faces two inquires, one by the internal committee and the other by the disciplinary committee. This is disastrous to say the least and amounts to re-victimising the victim. Such is the power of the bureaucracy that they are able to insist on this procedure as a "protection" from dismissal or discharge.

The law is in a state of flux. We have been promised a new law by the government. But what this new law will say is an open-ended question. If it maintains the provision for two inquiries, no person will ever be found guilty of sexual harassment during the lifetime of the complainant.

To add insult to injury, there is yet another proposal: that if a complaint is not proven, the woman will be prosecuted. Most people are unable to make a distinction between a complaint that is not proved and one which is false. While it is very difficult to prove a case, as often the harassment takes place in private, out of the purview of any eyewitnesses, it is another matter to say that the complaint is false. A false complaint presupposes a malicious intent. In practice, what will happen is that in every case where the complaint is not proved, the woman will be told that the complaint is false and she will face prosecution. Such a provision will have a chilling effect on women bringing a complaint in the first place and will defeat the purpose of the law for protection of women from sexual harassment.

Should it not be sufficient that the complaint is found prima facie sound for investigation? What is amazing is that employers tolerate sexual harassment and do not send the signal loud and clear to their employees that sexual harassment will invite termination of employment. I have yet to come across a contract of employment for a managing director or a CEO that says his services will be terminated if any complaint of sexual harassment is proved against him.

We hear the same old argument that the private sector is not bound to implement fundamental rights, not subject to reservation laws, etc. Thankfully the proposed statute will cover the private sector and, perhaps for the first time, bring women in the private sector within the protection of a law on sexual harassment.

Indira Jaising is an Additional Solicitor General of India and Project Director, Lawyers Collective Women's Rights Initiative

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