7 Years of the Sexual Harassment Law in India – What has Changed ?

’10 Judgements that changed India’ by Zia Mody has a chapter titled ‘All in a day’s work’ outlining the then seminal judgement on the issue of Sexual Harassment at the Workplace. Originally published in 2013, Mody talks about the Vishaka Guidelines as a judgement that had enormous value and power to change the way we looked at a nation at its threshold of change.  At the time that she wrote the book, the law had not been passed, and was still referred to as the ‘Vishaka Guidelines’.

Later that year, the Government of India under extreme pressure after the 2012 Nirbhaya gang rape case, looked for measures to make the country safer for women. Along with other laws to provide justice at a faster pace, they passed the Law against ‘Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal, 2013)’. The details of the law, its definition, administration and penalty for misuse have been discussed and spoken about at length here.

As we approach 9th Dec 2020, marking the 7th anniversary of this law, we want to recall how far we come and the changes we have experienced as we continue to speak and work with a variety of business and its leaders.

We cannot start any conversation around this law without acknowledging the Vishaka Case and Bhanwari Devi, a NGO worker who was raped, in her own field, by a group of Land Owners, for stopping a child marriage. When she was denied justice, a group of activists filed a petition with the Supreme Court seeking justice and the context ‘Was Bhanwari Devi’s employer ‘ the Indian Government’ responsible for the safety of its employees’ ?

This brings out to an important distinction of how we understand ‘Sexual harassment’ – As outlined in a research paper as quoted here

‘McLaughlin et al (2012) advocate that sexual harassment is used as an equaliser against women in power, rather than instigated by sexual desire. They contend that this is one way for men to  dominate and control women, who are seen as non-conformist and have risen to positions which have been traditionally occupied by men. Chamberlain et al (2008) argue that sexual harassment as an act is deeply embedded within organisational practices and policies and thus needs to be examined within the specific context. They point out that employees with tentative tenure, economic vulnerability, or those who are self-directed are inclined to experience sexual harassment.

They further add that the work culture plays a significant role in either increasing or decreasing such instances.
Organisations with co-worker solidarity and better grievance mechanisms face less of these problems, whereas large organisations which provide anonymity to its workers, report more cases of women being sexually harassed (Chamberlain et al 2008; De Coster et al 1999; Quinn 2002)’

What this directs us to do is to recall the change in the practices adopted by Organisations and Leaders over the last 9 years. By all means we can look at how often has the topic of ‘Sexual Harassment’ been on media. However, we fear that, as a reader and an employee of a workplace, you may end up with the blindsided view. Here’s why :
Here’s a list of high profile cases of Sexual Harassment at the Workplace. The industries/agencies covered here range from the years from 1990 – 2017. It also shows that there is immense power-struggle within the public and private sector agencies including but not limited to the State and Central Government, Private sector IT and Media Organisations.

• KPS Gill, former Punjab Director General of Police
• Phaneesh Murthy, Executive at Infosys and I-Gate
• Gopal Kanda, former Haryana Minister
• David Davidar, Head of Penguin, Canada
• Shaimak Davar, Bollywood Choreographer
• Ash Kumar Gangly, former Supreme Court judge
• Tarun Tejpal, Founder of Tehelka

However, these cases do not highlight the way that Sexual Harassment has changed in the way its used by perpetrators to intimidate coworkers.

In 2017, it showed how the latest uber- cool startups faced a similar situation. The founders of TVF, ScoopWhoop were accused of making lewd remarks on their female colleagues. And while these were also media agencies, it has revealed to us, that Sexual Harassment has nothing to do with the size of the organisation alone.

What about those who worked in the not-so-famous workplaces?

So, workplaces weren’t just Government agencies and Media companies. It included any place that women went to accomplish tasks ascertained as job-related. By definition, this meant that hospital rooms to homes were under this title called ‘Workplace’ and many of these followed few to no norms to set up committees for redressal.

The Indian National Bar Association, a non-profit organisation, put this question to 6,047 survey participants in various cities – including Gurgaon, Delhi, Kolkata and Noida – between April 2016 and October 2016. Around 67% of the respondents replied “no” when asked if Internal Complaints Committees dealt fairly with complaints.

In the same year (2016), there was an amendment to the 2013 act, which renamed the Local Complaints Committee (LCC) as the Local Committee (LC). This amendment implies that the LC is no longer conceived to be only a complaint resolving mechanism. It should work proactively at awareness generation about the rights of women employees in order to fulfil a key objective of the 2013 act in the prevention of sexual harassment. Prevention campaigns would be helpful in breaking the silence around the issue and enhance reporting of sexual harassment. Practically, the LC has the district government machinery backing it, which provides it a wide scope and reach. The LC has wide coverage, as its jurisdiction expands to the whole of the district as per Section 6(3) of the 2013 act.

The change in definition was applicable to Internal Complaints Committees set up in Organisations as well and was a much needed impetus that gave authority and pushed them to strategically execute programs for taking strict action on any form of Sexual Harassment at the Workplace.

A 2018 study by the Martha Farrell Foundation and Society for Participatory Research in Asia based on Right to Information sent requests to 655 districts in the country. They found many districts had failed to establish the committees or constitute them in line with the legal provisions. Even where they existed, it is difficult to find any information on websites or public spaces displaying their names and location.

The study also found a lack of awareness regarding roles and responsibilities among the committee members, indicating a lack of capacity to handle sexual harassment complaints. Out of 655 districts in the country, 29 percent replied that they had formed Local Committees, while 15 percent had not done so. The majority, 56 percent, did not respond.

By May 2020, even in the capital, Delhi, only 8 out of 11 districts had constituted Local Committees. Anagha Sarpotdar, chair of the Mumbai city district Local Committee since 2018, said that by May 2020, the committee had only received five complaints, all from the formal sector.

The Central and State Government alone employs over 3 million women workers under various schemes – Community Health Workers to mid-day meal cooks who work in conjunction with Government Schools. These women workers travel to places for dispensing medical care and face rampant sexual Harassment. When asked about reporting, they would respond with no knowledge of how to go about it.

Clearly there appears that the government, as an employer, has a huge gap to plug. In 2019, when the Women Development and Child Welfare Department, in Telegana issued a general notice that any business that had ten or more employees was now required to register their IC with the State Shebox portal by no later than July 15, 2019. This was in an effort to allow officials to better track the compliance statuses of businesses around the area.

The Government of Maharashtra issued a similar letter, requiring all businesses to fill out a form outlining their compliance status and internal committee and submit it to the Sub-Divisional Magistrate by no later than July 20, 2019. In both situations, a failure to follow the rules could lead to businesses getting fined as much as $50,000 in local currency.

However,  as it has been pointed out earlier, without proper reporting by the State and Central Government, it is difficult to gauge and understand the change these schemes have brought to Workplaces – be it private or the government itself.
Summary : So, what’s the journey that we have accomplished with the 2013 Law? Here are my interpretations. Small but significant, I believe that these changes have made a pathway for the future :

1. We have the Law and Definition that most who are studying society, workplaces and practitioners of the Law know and understand.
2. We know the execution of this law does not start after an incident/ complaint on Sexual Harassment, but at the time that organisations are formed. An Internal Committee must be created for a group of employees that exceed the number 10.
3. Talking about Workplace Dating, Relationships in a Team (With or Without direct reporting) and its repercussions allow employees to come out in the open and seek solutions.
4. Organisations – Government and Private, play a important role in embracing the existence of such power struggles that exist in our society and must create opportunities for employees to be made aware and a forums to speak on these matters.

Lastly, like all mankind related matters, Leaders – Private or Public organisations are the ones to lead the change, that they want to see. As a woman, working in 2020, I am privileged that these laws and changes have come into being. But as many women along with me have attested,

How well will the law really protect us?

Will those harassed till date, get real justice?

Are the homes, workplaces and the road to it all, safe?

Not yet. There are miles to cover, before I can say, we have arrived!