Sexual Harassment
The ongoing ‘Me Too’ campaign throws up a pertinent question as to whether confidentiality itself could become counterproductive to the object of the law, with non-disclosure serving as an encouragement to the perpetrator.

While #MeToo campaign victims are being hailed for coming out in public against their perpetrators, many of them are being viewed with a tinge of suspicion by the society. Why are they complaining now? Is it for publicity? Is it political? Unfortunately, many more such questions are being raised behind the curtains, indirectly vouching for the culprits’ action.

This kind of attitude has bolstered culprits to drag the victims to the court. In that case, what chances do the victims have especially if they do not have any material proof to back up their allegation? How does the law come to the rescue of these victims? Should the victims fight it out on social media or knock on the doors of the court?

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, could be a blessing for the survivors of ‘Me Too’ to reclaim their dignity.

Society for generations has been governed by patriarchal mindsets treating a woman like chattel owned by a man, at his beck and call, with no sense of individuality. Girls have been brought up to tolerate and remain silent. The occasional few who did dare to venture out in pursuit of their dreams were branded deviant. A woman venturing out to work was acceptable only if it was inevitable for her to contribute to the family income. If she complained about her work environment, she would be told to quit or adjust for the sake of the family income. Invariably, she would be blamed for putting herself in ‘dangerous situations’ if she faces violence. The only choice for a woman was to stay mum if she wanted a career.

It is this inevitability and vulnerability of women that made them easy victims of harassment at workplace. It was accepted as a necessary evil to cope with rather than complain.

But it is only in the 1990s that the concept of ‘sexual harassment at workplace’ came to be recognised and finally found a formal mention in the United Nations Convention on the Elimination of all Forms of Discrimination against Women, 1992 (CEDAW) which was ratified by India in 1993. However, no legislation was promulgated to fulfill this international obligation. It is then that the Supreme Court of India stepped in to fill in the lacuna by pronouncing guidelines to prevent and redress sexual harassment at the workplace in the landmark case of Vishaka Vs State of Rajasthan in 1997.  

Understanding the urgency and seriousness involved, the Supreme Court made it mandatory for every workplace – private, public or unorganized – to follow these guidelines till legislation was promulgated. However, not many employers took the issue seriously despite warnings and deadlines from court. It is only in 2013 that these guidelines crystallized in the form of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act.

However, one of the features of the Act is that confidentiality is to be maintained at all levels – and there, while several organisations and institutions are adhering to the mandate, most of the cases under the law are not in the public domain.

But the ongoing ‘Me Too’ campaign throws up a pertinent question as to whether confidentiality itself could become counterproductive to the object of the law, with non-disclosure serving as an encouragement to the perpetrator. As the Supreme Court recently said, albeit in a different context, “Sunshine is the best disinfectant.”

If the survivor wants to come out in the open in a bid to expose such perpetrators, especially those ensconced in the higher echelons of power who, but for such media glare, would dust off or trivialise the issue, is confidentiality really needed?

Defamation is a handy tool for the perpetrator to gag public exposure. However, if truth of the allegation is proved, action for defamation stands defeated and in fact could become a counterproductive handle for initiation of a counter defamation action by the survivor. If no charges are proved in an IPC offence, the perpetrator can initiate a proceeding for malicious prosecution against the complainant.

Sexual harassment law in India is specific in protecting women; however, the accused may be a man or a woman. In fact organisations are adopting gender neutral sexual harassment policies understanding that men could also be equally vulnerable.

As more skeletons tumble out we seem to be evolving towards new paradigms of workplace gender equality, crystallising laws and procedures to suit emerging situations. Crux being that sexual harassment in the workplace is no longer an issue to be swept under the carpet.

The author is an advocate and the Secretary of Karnataka State Bar Council Sexual Harassment Redressal Committee. Article provided by www.storyinfinity.com (Subs and Scribes Media Ventures LLP.)

Views expressed are the author's own.