This Act Falls Short

It was exactly 10 years ago that the women's movement in India could lay claim to having achieved substantial success with the landmark Vishakha Guidelines laid down by the Supreme Court. The guidelines were formulated to address sexual harassment of women at the workplace until a suitable legislation was enacted in this respect. Its most important clause was regarding the formation of an internal complaint committee in an organization, from which a woman facing sexual harassment could seek help. (The Vishaka case - Vishaka vs. the State of Rajasthan, 1997 - was a petition by social action groups and NGOs, seeking legal redress for women whose work was obstructed or inhibited because of sexual harassment at the workplace. The case culminated in the Supreme Court judgement of August 1997.) 

The Vishakha Guidelines brought to light the seriousness of a crime trivialized by many as simply 'eve-teasing'. As if to commemorate the 10th anniversary of the landmark judgement, the Ministry of Women and Child Development (WCD) is all set to introduce the Protection of Women Against Sexual Harassment at Workplace Bill in Parliament this monsoon session. The passage of this Bill, then, would seem to be yet another milestone in fulfilling the Constitutional promise of rendering gender equality and justice in the country. But there is a hitch. Women's groups and activists are extremely displeased with the Bill.

During a workshop organized by Women Power Connect, a lobby group of some hundred women's organizations and activists from across the country, Priya Narula (AGE), a Rajasthan-based lawyer voiced her concerns on the ambiguity of many terms in the proposed draft. "The entire draft is loosely worded," she said.

Taking off from the Vishakha Guidelines, the Bill mandates setting up internal complaints committees in all organizations. The Bill stipulates that the Chairperson of this committee should be 'from amongst employees, who shall be a senior level woman, committed to the cause of women. In case a senior level woman employee is not available, the Chairperson shall be appointed from a sister organization or a non-governmental organization'. According to Narula, terms like 'committed to the cause of women', 'sister organization', 'non-governmental organization' are ambiguous and could be manipulated and misused once the Bill became an Act.

Further, the Bill makes no mention of who is to appoint the members of the complaint committee, what the committee's agenda is to be, how often it should meet, and what the quorum should be. Another concern is that in many organizations there are no women in senior decision-making positions and so even that requirement is bound to be difficult to fulfill.

The Section 6 of the proposed Bill stipulates the constitution of a Local Complaints Committee in a block wherever 'at a workplace, constitution of the committee is not possible or practicable'. This committee is to consist of 'a chairperson to be appointed by the appropriate government from amongst women committed to the cause of women'. Narula felt that terms like 'appropriate government' and 'women committed to the cause of women' were again not well-defined. She further pointed out that priority given to women in such committees under the Vishakha Guidelines had caused many to dismiss them as simply 'mahila mandals' (women's groups) which were alleged to be exploiting men employed in organizations.

According to Soma Sen Gupta, Director, SANHITA, a Kolkata-based NGO that deals with violence against women and runs a helpline to deal with complaints of sexual harassment, the role of 'third party' in the Bill has also not been clearly spelt out. Gupta, who has participated in around 36 complaint committees in government departments in West Bengal as a third party representative, opined that in most cases third parties were expected to play the role of mute observers.

She also expressed concern at the provisions under Section 14, which state that 'the action taken by the employer under the provisions of this Act shall not be published, communicated or made known to the public, press and media in any manner', even under the Right To Information Act. Sen Gupta remarked that this could curtail public space for campaigns and advocacy against sexual harassment. Although the clause has been included to apparently maintain the confidentiality of the aggrieved woman, it was felt by many that the identity of the 'respondent' (the guilty) should be widely disclosed for future prevention and deterrence of the abuse.

But, what really has the women up against the proposed Bill are the provisions under Sections 11 and 12. Section 11 provides that no action will be taken regarding the complaint if 'the allegation against the respondent has not been proved'. Section 12 further states that if a Committee or Local Committee concludes 'that the allegation against the respondent is false', then action will be taken against the 'the woman or the person who has made the complaint'.

Long years of discrimination and a subordinate position in society show that in 99 per cent cases of sexual harassment, women prefer to maintain silence. Only about one per cent of such cases are reported and extreme courage is needed to do so, as there are many impediments that come in the way.

Nandita Konwar, President, Living Heritage Foundation (Guwahati), has served on complaint committees of the Directorate of Elementary Education, Assam. After discussions with a cross-section of women in the state, Konwar has come to the conclusion that even well meaning people often do not know how to go about investigating complaints of sexual harassment, making it extremely difficult for a woman to prove her case. And the fear of punishment would deter women from coming forth with such complaints. Facts and witnesses could also be manipulated to prove allegations false and this would be a double burden for the aggrieved women.

Justice Verma, the architect of the Vishakha Guidelines, says that these sections (Sections 11 and 12) would render women even more vulnerable since there was no provision in the draft Bill of appeal against the recommendation of the committee. If passed, the Bill would kill the "spirit of Vishakha". He also pointed out that "it is not clear whether the committee was required to be an investigating one or a disciplinary one".

Anindita Sengupta, a Bangalore-based journalist, who fought a sexual harassment case against the general manager in her earlier workplace - a multinational firm headquartered in the US - said that sexual harassment is difficult to prove as it usually occurs in private. When the accused, as was in her case, is a senior employer then witnesses - if any - often shy away from providing evidence.

The Bill, under Section 8, provides the option of reconciliation. According to Narula, this clause presents an opportunity for the offender to put pressure on a woman to withdraw her case. Instead, she said, the Bill should lay down provisions for complainant and witness protection. The draft Bill does not talk about the initiation of criminal proceedings by the employer against the guilty. It provides for compensation to the victim, which only trivializes the anguish and trauma of the crime. Simultaneously, the maximum fine that can be imposed on an employer who has not set up a committee is Rs. 10,000 (US$1=Rs 40) - a pittance for most companies.

Hence, while this current Bill has been drafted after a number of changes were already incorporated on the recommendations of women's groups and activists, it is still far from what was aspired for. Also, the draft has been allegedly amended, but the amendments have not been made public. Activists are considering putting pressure on the government to incorporate necessary changes before introducing it in Parliament. For, once enacted, it would replace the Vishakha Guidelines and in its current form would do little to ensure the safe and secure work environment that all women have a right to. 


More by :  Aditi Bhaduri

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