The Vishakha Guidelines was the beginning of a new era for sexual harassment laws, but does more work need to be done?
From time immemorial, womxn have faced suppression. Bound to their houses, given no civil rights, regarded as the inferior sex. Times have changed, womxn are no longer as meek and docile. Today they can go out in bold colours, they can vote with patriotism and they can assert their independent identity fearlessly. However, can one say with absolute certainty that times have changed and society has progressed further? Can they dare to say that they have left behind the days of blatant suppression of womxn?
The rise of both the #MeToo Movement and the trend of sexual harassment implies that perhaps they haven’t. If rape is a tool of suppression and this tool is still utilised, how can one say things have changed? Perhaps society remains similar, but #MeToo has taught us that womxn don’t. It has enabled survivors to courageously come out, name and shame harassers when recounting their experiences and bring the incidents under social scrutiny. This shows the restructuring of the balance of power between males and females.
#MeToo is a reminder of how the feminist movement has sidestepped accountability as well as a way to reopen discourse on the issue of violence in an overwhelmingly patriarchal society. In India where womxn have limited access to justice, violence against womxn is ignored except when these stories are used as trauma porn. This is exactly why womxn need to speak out- they are not for consumption by the masses, they are the gruesome realities of society. Vishakha vs the State of Rajasthan was one such case which opened up India’s eyes to its realities.
Bhanwari Devi was sexually assaulted in a village of Rajasthan when she tried to stop an act of child marriage under a social development program. This program was administered by the state government. Subsequently, a movement came up in Rajasthan which recognised Devi was assaulted at what was essentially her workplace, leading to a writ petition being filed in the Supreme Court. The petition asked for redressal of sexual harassment at the workplace by demanding guidelines which would enable organisations to recognise, prevent and redress the issue. In 1997, this culminated in the formation of the ‘Vishakha Guidelines’ through which measures to redress and prevent sexual harassment at the workplace were made compulsory.
Vishakha vs the State of Rajasthan (1997) was not the end of the battle. Expanding on these guidelines, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act of 2013 was enacted. It defines sexual harassment, lays down the procedure for inquiry as well as the action to be taken This legally binding act, therefore, put three obligations on institutions- prohibition, prevention and redressal. For this purpose, a Complaint’s Committee was to be formulated on the Supreme Court’s orders.
Despite the achievements of the Vishakha case, Nathan alleges that her experience with criminal justice has taught her that route fails women like she expected it to fail Bhanwari Devi. Stating that the criminal justice system had consistently failed victims of sexual assault, the time had come for the remedy to move towards a constitutional solution. This would entail focusing on prior accounts of sexual assault that women experienced at work as well as the inability of local authorities to act on complaints.
The nature of the Indian society is such that women are not taken seriously, relegating their status to that of an inferior. In this patriarchal society, it is no surprise that there would be an imbalance of power between the womxn and the mxn, in which the male is above the female in its hierarchy. Therefore, at the crux, the issue is a constitutional one- womxn are denied equality and dignity which permeates society deep enough for a ‘neutral’ organ of state to be biased. They are consciously able to deny them their rights to file an FIR based on the structure of society which leads to the domination of certain stereotypes, however incorrect they might be, without facing any social consequence much less a legal one. In such a situation, the status of womxn as equal members of society must be enforced, and what better to do this than constitutional laws?
There is nothing which represents the social and constitutional aspects of sexual assault better than the ‘#MeToo’ movement. The idea was conceived by American activist Tarana Burke (2007) to stand with and raise awareness about victims of sexual assault. Flash forward a decade later and the hashtag has gone viral, implicating powerful men in accusations of harassment and misconduct. Now a global movement, #MeToo has influenced countries over the world, with each country contributing its flavour to it. In India, the movement started in September 2018 with actress Tanushree Dutta accusing co-star Nana Patekar of sexually harassing her in 2009 on the sets of the movie ‘Horn Ok Please’. This accusation opened the floodgates for women to share their experience with harassment through posts, accusing a spectrum of people from actors, directors, artists, writers, politicians- womxn called out men for their unwarranted behaviour at the workplace. Das describes the movement in India, “Be it a spontaneous overflow of suppressed psychological and emotional trauma or a practical manifestation of ‘the theory of contagion’, the ‘#MeToo movement’ has come to stay in India”.
With its underlying themes of feminism, sexism, unaccountability, victim-blaming, slut-shaming, rape, sexual assault along with many other themes, #MeToo remains an important point of discussion. The fact that #MeToo remains a hot topic in India implies that the work in the field of sexual harassment at the workplace remains incomplete. Womxn still face difficulties coming forward and with redressal and thereby, many barriers to access to justice remain as far as they are concerned. The Vishakha Guidelines and the subsequent 2013 Act was supposed to redress these issues and therefore, #MeToo raises an important question in the socio-legal world- are the Vishakha Guidelines and the 2013 anti-workplace harassment act adequate?
Before #MeToo, India was plagued by violent rapes. Nonetheless, since most of these cases were communal, they were largely overshadowed by other issues, especially those like communalism, religion and honour killings. However, #MeToo was the jolt which reminded India of its reality- sexual harassment does not live in the shadows of remote, dark villages of India, it also strives in the broad daylight shining through the glass windows of skyscrapers. Rape permeates all nooks and crannies of India’s demography, ranging from Hindu to Muslim, poor to rich, Dalit to Brahmin, manual scavenger to elite professionals. No one is spared, neither the rural nor the urban. This realisation came as a disappointment after the implementation of Vishakha Guidelines and its expanded conception in the Prevention of Sexual Harassment at Workplace Act, 2013 (PSHWA, 2013). People had hoped that this issue had been resolved through the legislation. However, the rise of #MeToo in India portrays a different picture- the inadequacy of the law in place.
It’s no secret that sexual harassment comes with more stigma for the womxn than the mxn, making Section 9 (prescribes a period of limitation for the filing of complaints and the committee’s power to condone delays are limited) of the PSHWA, 2013 extremely disappointing. The decision to file a complaint is nuanced for womxn and requires elaborate deliberation and time to consider reporting. By limiting this, the Act severely hinders the womxn’s choice to deliberate. Often this works in the assaulter’s favour as decisions taken in this hastened manner (not to mention the contribution of immense societal pressure) tend to favour social security (no social stigma) over justice.
Section 354A has made the offence punishable with imprisonment which may extend to three years. For an offence which is as physically and psychologically damaging as sexual harassment, with its numerous layers and hierarchies of the extent ranging from eve-teasing to rape, one has to wonder whether the punishment of 3 years is adequate? The cases may vary significantly and to reduce the punishment to the same figure, though at the discretion of the judge, is an abomination which does nothing to serve justice. Moreover, the courts are notorious for their slow advancement which may make the criminal trial itself the actual punishment and with no period given to resolve the case within, the victim may choose to abandon the proceedings due to its mental toll and emotional labour.
The PSHWA, 2013 also fails to redress the sexual harassment of the LGBTQIA+ community as well as mxn. This is despite the Oncale v Sundowner Offshore Services Inc which unanimously held that same-sex harassment is also actionable and Section 377 which decriminalised. Yet no amendments have been made to include these developments into the legislation.
Irrespective of illegality, sexual harassment is a social issue which occurs in society due to the way its womxn are perceived. This perception is not just a matter of individual victims, it is the byproduct of the patriarchal structure which results in the systematic oppression and discrimination against womxn. Resultant harmful stereotypes are not only perpetrated by men but also womxn, who internalise them and contribute to its continuation over generations. Unless legal principles are accompanied by social change, rules and regulations will be futile. Sexual harassment would continue due to the lack of change in perception in society as well as social disapproval. Law’s ability to bring change is limited and thereby as long as the root cause persists, so will sexual harassment. As a result, womxn will face issues in accessing justice despite legislations like the PSHWA, 2013 in place.
Experience of victims show that most of them don’t report harassment due to family pressure, police attitude, faulty legal system and prolonged trials, corrupt practices as well as social stigma. This is not to mention the unequal balance of power between the perpetrator and victim, especially in cases of workplace harassment where the perpetrator is often a superior male. Surveys show 78% womxn didn’t report workplace harassment and only 6.6% of reports resulted in a conviction. 2016 saw 34,186 cases filed in which investigation was complete for 75% and charge sheets prepared for 67.3% cases. While this shows that police may be performing their obligations, 78% of unreported cases show that society is not.
Even if reported, pressure by the accused is frequent. The story never ends. Powerful organisations at play prefer to hush up cases of sexual harassment by their employees for the sake of their reputation, willingly flouting the norms. If it was not enough that family, friends and workplace serve as barriers to womxn, the police and courts themselves may act like one. Victim blaming and slut-shaming are common practices along with apathy towards female survivors who aren’t taken seriously enough. Prolonged cases like Vishakha vs the State of Rajasthan and more recently, Ruben Deol Bajaj vs KPS Gill, illustrate “the legal system has failed women and that the culture of violence with impunity is prevalent inside and outside the court rooms”.
Feminists allege that the patriarchal nature of courts are more sympathetic to mxn and therefore it often finds technicalities and legal jargon to let off male perpetrators of violence. Moreover, since sexual harassment occurs in private spaces, they become difficult to prove in court– especially in the patriarchal system of discrimination and stigma due to which police do not easily believe victims. When womxn don’t report but talk about these issues online, they are called liars by men and women alike.
In light of a crumbling legal system and apathetic society, women’s choice and the agency found space through an informal structure. The internet provided both support and a platform womxn to raise their voices in a way the legal structures barred. Moreover, instead of mere punitive action against perpetrators, #MeToo aimed at changing mxn’s behaviour so that womxn neither had to change themselves nor tolerate violence committed by males against them in the future. It also allowed making space in a toxic, male-dominated work environment.
The narrative surrounding sexual harassment is not only heartbreaking but an incredible insight into the functioning of the machinery of the state as well as the minds of the people. It no doubt tells us how the legal system in place is inadequate but additionally, it also answers why the system is such. The system is placed in another system of people who influence it and vice versa. Thereby the interrelation between society and law that is implicit in the case of sexual harassment is undeniable. For example, rape is not taken seriously enough since the legal system is neither punitive nor efficient, but this is the case only because the severity of rape is undermined by shifting the blame onto womxn instead of perpetrators by people.
To those of us who live in privileged urban areas, the idea of rape not being a serious matter may seem abhorrent. However, the truth of the matter is that rape is a tool of oppression. This has been the case so from centuries- think of womxn who committed sati to avoid being sullied by enemies, think of the communal rape during Partition, think of Kashmiri womxn, of Dalits- quite frankly, the list is endless. In a patriarchal system, womxn are the inferiors and rape is a tool of oppression against them. It is utilised when the position of mxn in our societal structural is threatened, as is the case with changing societies. It may be mxn who rape us but they are aided by the support of society in which we live.
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Vishakha and others vs State of RajasthanAIR SC 3011 (1997)
Archana Nathan, Dalit woman’s rape in ’92 led to India’s first sexual harassment law – but justice still eludes her. Scroll.in. 22nd October 2018 https://scroll.in/article/899044/dalit-womans-rape-in-92-led-to-indias-first-sexual-harassment-law-but-justice-still-eludes-her
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