Legislation to protect women from sexual harassment at work continues to be a matter of debate over two successive governments. The Bill, renamed several times, has been circulating among different stakeholders but it seems that the debate on this proposed legislation is far from being amicably resolved.
Comments and suggestions regarding The Protection of Women Against Sexual Harassment at Workplace Bill, 2007, had been invited by the Ministry of Women and Child Development with a deadline of March 31, 2007. Various women's organizations responded with their recommendations to fine-tune the Bill in order to make it more effective, especially with regard to timely redress for the victim. But the fear is that the whole exercise may, yet again, prove to be futile.
Having served on more than 10 Complaints Committees and Enquiry Committees in the last five years, Kalyani Menon Sen of Jagori, a leading Delhi-based women's NGO, finds there is much similarity in the strategies adopted by NGOs and government bodies to delay, if not deny, justice to the complainant. "I suppose this is proof of the essential anti- women nature of these institutions. In many cases, a lot of time has gone in clueing-in the members of the committee to the definition of sexual harassment and explaining that the past employment history of the complainant and speculation about her morals are not germane to the issue," she observes.
Earlier this year, various women's organizations, under the aegis of Jagori, held a two-day deliberation session on the Bill, at the end of which they issued a combined note that has since been forwarded to the Ministry.
Among their many recommendations is the need for procedural training of the members of the Complaints Committee. According to them, the Labour Department and Social Welfare Department should be assigned the task of conducting periodic training sessions, which will help prevent further victimization of the complainant during a hearing. "We should specifically mention that the committee can give interim orders that no disciplinary proceedings will be initiated against the complainant and the term 'grievance' should not be used as the act of sexual harassment is not a grievance", says the combined note.
For trade unions, the main flaw in the Bill is that it gives inadequate coverage to women working in the informal sector. "The structure of the Bill in its present form caters more to women in the formal sector and ignores the majority of women working in the unorganized sector in India," states Amarjit Kaur, Secretary, All India Trade Union Congress (AITUC).
Under the landmark Vishakha Judgment of 1997, the guidelines presented by the Supreme Court included a definition of sexual harassment, a list of preventive steps and a description of the complaint proceedings to be "strictly observed in all workplaces for the preservation and enforcement of the right to gender equality of the working women". But how can this be translated into effective legislation at the
"How do we help vulnerable women in the large informal sector who do piece-rate work at home or work in the agriculture sector or as contract labour on construction sites? The question is who will set up the Complaints Committee as directed by the Vishakha judgment?" asks Amarjit. "We have recommended a district or taluka-level structure, which should primarily deal with sexual harassment and must have, apart from district and government officials, representatives of trade unions and women's organizations on it," she adds.
Suggestions from various organizations, which have been received and compiled by Public Services International (PSI), South Asia, and sent to the Ministry of Women and Child Development endorse similar views. An important suggestion is that of compensation for harassment. "We have questioned how the harassment is to be measured; whether compensation is to be given in cash or kind," says Ananda Lakshmi, Sub-Regional Secretary of PSI, South Asia.
PSI has also called for speedy resolution of complaints as experience has shown that most complainants get discouraged because the whole process is very time consuming. "Most of the time, the committees transfer either the victim or the accused, which does not serve the purpose," points out Lakshmi. "We have also recommended the creation of a protection programme along the lines of the witness protection programme existing in some countries or else people may not come forward in support of victims," she adds.
As an external member of past committees, Menon-Sen has often found herself alone in defending the rights of the complainant to protection from further harassment by friends and supporters of the accused. "Worst of all, even if the inquiry finds that the complaint is justified and recommends action, the organization delays the action for as long as possible by invoking official procedures or allowing the accused to appeal again and again on the grounds of natural justice," she says.
A first-of-its-kind survey in India on sexual harassment at the workplace, undertaken by Delhi NGO Sakshi in 2001, revealed that most perpetrators of sexual harassment are co-workers, followed by immediate superiors. Out of the 2,400 men and women interviewed, the survey found that 40 per cent of the women said they face job discrimination for promotions and valuable assignments - because they were women.
A total of 23 per cent of the respondents were aware of the Vishakha Guidelines on sexual harassment and 45 per cent believed that the implementation of the guidelines would create a healthy environment at the workplace.
Six years after the survey was conducted, have things changed for working women? Well, many are reluctant to speak out against sexual harassment - either experienced by them or their fellow workers - because of loopholes in the law that come in the way of speedy justice, says Lakshmi. Even women holding senior positions in organizations are reluctant to talk freely about the issue. In fact, a woman vice-president in a leading private company admitted that they had gag orders against talking to the press on this subject.
"I see very little in the present draft of the Bill that will guard against the well-honed tactics of the accused," says Menon-Sen. "Taking advantage of the law in this situation will be a major challenge for feminist groups like ours," she adds.
The government, meanwhile, seems noncommittal to the concerns raised by the various women's groups. "The Bill has been gone through extensively with different groups. The ultimate parameters will be determined by what is practical and not ideal as it is, after all, the state governments which will have to implement it," summed up an official at the Ministry of Women and Child Development.