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Legal The Other Half: Too Many Lacunae


1947-2014 (Archived)
Jun 17, 2004

The Other Half: Too many lacunae


Finally we have a law that addresses sexual harassment at the workplace. But some controversial clauses need to be debated…

No one wants to talk about it. Even women shy away from discussing it. Do women really get sexually harassed in the workplace? Many women, when asked this question, often give a vague reply. Some are more forthcoming. Others suggest that this is a non-issue, that women need a sense of humour to deal with ‘harmless teasing' at the workplace.

But, as women become more aware of their rights, they are speaking up. Thus, recently policewomen in Mumbai spoke about sexual harassment. Teachers have talked of it. Women in other professions are also acknowledging that it exists. However, one of the reasons many hesitate to bring the issue up is the unequal power equation between them and the harasser. If a complaint means losing a job, then women prefer to hold on to the job and be silent. In any case, even if they wish to complain, very few organisations have mechanisms in place where a woman can give a written complaint with the complete confidence that it will be investigated without bias.

Ineffective guidelines

For many years, the only precedent that operated in this area was the Supreme Court judgment of 1997 in the Visakha vs State of Rajasthan case. In the absence of a law, the court had laid down guidelines to prevent sexual harassment in the workplace. These included asking employers to set up an internal committee to look into complaints. But this could only work for women employed in formal organisations. What of the millions outside the formal sector? Also, as these were guidelines, and not a law, they were routinely ignored, or followed without any seriousness. Thus, even where committees were set up, they often did not work or women employees were not informed of their existence.

Women's groups have been pushing for a law on sexual harassment so that there are penalties for not implementing its provisions. Finally, such a law has seen the light of day. On December 7, Minister of State for Women and Child Development Krishna Tirath placed the Protection of Women against Sexual Harassment in the Workplace Bill, 2010 in Parliament.

Unfortunately, this has happened in a session where no work has been done. Days and weeks have gone by with the deadlock over the 2G scam. As a result, laws like this one have been left hanging. One does not know whether it will ever be discussed, leave alone passed, given the amount of work that will be pending if and when our parliamentarians ever get back to doing the job for which they were elected.

Although the introduction of this law is a welcome step, it still needs to be discussed in detail before it becomes law. In its statement of Objects and Reasons, the Bill states: “Sexual harassment at a workplace is considered violation of women's right to equality, life and liberty. It creates an insecure and hostile work environment, which discourages women's participation in work, thereby adversely affecting their social and economic empowerment and the goal of inclusive growth.”

The law requires every employer to set up an Internal Committee to look into complaints and also mandates the setting up of Local Committees at the district level to address the complaints of women who are not in the formal sector. The latter is particularly important as the majority of women are employed in the informal sector and thus would fall outside the ambit of the law if it were restricted to formal organisations.

It lays down provisions for compensation to be paid to the women complainant and punitive measures against the harasser. As in rape cases, the law prohibits the media from publicising the name and address of the complainant or the witnesses.

Yet the law falls short on several important measures. For one, it specifically excludes domestic servants from the ambit of the law. This is a strange exclusion given the millions of women in our cities who survive on domestic work and the problems they face. An alleged rape of a domestic worker by a film star is still being heard in the Mumbai courts. Many such cases never reach the stage of a formal complaint. The women would probably decide to leave the job and look for another.

I know from having discussed this in detail with a couple of domestic workers in Mumbai that they work out their own defence mechanism. So, if they hear that a woman domestic has been harassed in a particular household, they spread the word and ensure that at least young women do not take a job in such a house. Therefore, why the government has chosen to exclude these women, who are as vulnerable if not more so than other women in the workplace, is inexplicable.

Controversial clause

The other mysterious clause seeks to punish women who cannot prove sexual harassment after registering a complaint. While it is possible that some women can misuse the law, should the word of an Internal Committee that is not convinced by a complaint be enough to actually penalise the complainant? When a woman who has been raped cannot establish this in a court of law, she is not penalised. Rape cases fail in court most often because the prosecution cannot, or will not, make a strong enough case.

In sexual harassment cases, women face an uphill task to prove their case. Unlike rape, where there is physical evidence, what can you produce to prove the kind of harassment that consists of words and gestures? Only the woman and the man concerned know the truth. Whose word will be accepted? As in the majority of such cases, the power equation is weighed heavily against the woman, it becomes even more difficult to prove sexual harassment. Against this background, if there is a punitive clause, women will shy away from even trying to prove sexual harassment for fear that instead they will be punished.

These are some of the questions that should have formed part of a discussion in the last session of Parliament. One hopes that our MPs will be attentive when this Bill finally comes up for discussion. However, given Parliament's record on these matters, it is unlikely that too many of them will give the minutiae in the Bill any serious thought. It would be a pity if, after the efforts of so many women's groups at formulating the law, this particular version of it is passed without any changes.



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