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What workplaces owe women -Indira Jaising
-The Indian Express


The law is clear on how to handle sexual harassment. But our most important institutions have been slow to catch up.

The notification issued by the Supreme Court on November 26, 2013 does not address the issue raised by the young intern who has made a complaint that she was sexually harassed by a former judge. The 10 eminent members of the Gender Sensitisation and Internal Complaints Committee will have no jurisdiction to entertain complaints of sexual harassment against sitting judges or former judges. In that respect, it is deeply disappointing. The young intern, who has made the complaint, is not the only one in the same position. Where are they supposed to go? Impeachment is not an option, since that is an entirely political process and the criminal process, far from being woman-friendly, is intimidating and corrosive of the dignity of women.

The committee will, however, come to the aid of women lawyers who are sexually harassed by other lawyers, staff or visitors in the precincts of the SC. Our judges, in all courts, particularly the high courts and the SC, continue to enjoy immunity from any legal process in the case of alleged sexual harassment and sexual abuse. Parallel developments in the media seem to indicate that the media too does not have in place a regulatory regime for dealing with sexual harassment at the workplace. Tehelka, admittedly, had neither a policy nor a committee in place.

These two incidents compel us to look at the institutional response required to such situations by law. The judiciary and the press are meant to be two pillars of society, one charged with the duty of doing justice, the other playing an important role in guaranteeing freedom of expression and thus upholding the rule of law.

The law laid down by the SC in the Vishaka case clearly says that when a complaint to an employer by an employee discloses a criminal offence, the employer must initiate proceedings with the appropriate authorities - which surely means the police. Regardless of whether the committee was in place or not, Tehelka was under obligation to file a complaint with the police.

There is much confusion about the role of the internal committee. Its role is limited to taking cognisance of a complaint for the purpose of taking disciplinary action against the person complained against, if the complaint is found to be true. It is important to remember that proof in this matter depends on the balance of probabilities and is not, as in criminal law, beyond doubt. This too did not happen. Instead, we saw a voluntary stepping down. Far from being punishment, this has been described as a "paid vacation".

The next question that comes to mind is, who can take disciplinary action against a senior editor? If a corporation owns Tehelka, it would be the board of directors; and if it is a trust, the board of trustees. The editor is governed by the terms of the contract of appointment, and ordinarily such contracts are terminable by a one-month notice or payment in lieu of notice.

In the case of the law intern, when the SC became aware of the allegation of sexual harassment against a former judge, it immediately set up a three-judge committee (not under the regulations) to inquire into the incident. The intern was invited to give information about the alleged sexual harassment, which she is reported to have done. The report of the committee is awaited. It must, of course, be put in the public domain. Further questions will arise thereafter. Did she disclose the name of the judge in question? Is it a cognisable offence? What will the committee do if it is a cognisable offence?

And that brings us to another issue: why are the details of what happened to the Tehelka journalist out in the public domain? Why are these being so endlessly debated in the press and social media? Every person has a right to privacy and to the confidentiality of information that concerns her so intimately. Whatever may have been the source of the leak, we know now that an FIR has been registered by the Goa police. Section 288A of the Indian Penal Code makes it an offence to disclose the identity of the person or any information about the incident, once the crime is alleged. When an FIR is lodged, the offence is surely alleged. This provision, weak as it is in that it does not specifically say at what point an offence is alleged, is breached over and over again by the media. Some TV channels have allegedly broadcast the full text of the email sent to Tehelka, and must surely be prosecuted.

It is precisely the fear of the publication of these details, or the traumatic event, that deters women from complaining. The publication of the details violates them as much as the incident itself. This is not about stigma or the fear of losing one's job, but about the fear of losing one's own dignity. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013, in Section 16, excludes the application of the Right to Information Act to any information that would disclose the identity and details of the case. Section 17 of that act also imposes an obligation on the committee members to keep all such information confidential, on pain of a penalty under service rules. The law is thus clear - that while the perpetrator of the crime must be punished, the dignity of the woman must be maintained at all costs, and she must not be exposed to further assaults by publications in social media as well as print and electronic media.

Another chilling factor, which deters reporting of the crime, is the fear of being disbelieved. In this context, the intern has said that she too had feared the same. It is critical, therefore, that if we want to encourage women to report crimes of sexual abuse, we have to ensure that there is no character assassination of the complainant in any court proceedings. This is one of the prime reasons why women do not report crimes of a grave nature.

Over and above the letter of the law, there is constitutional morality, which governs all institutions of society. In 2013, Phaneesh Murthy was accused of sexual harassment by his subordinate at iGate, which led to a majority of shareholders removing him from the board effective from June 7, 2013 - after a sexual harassment investigation revealed that he had not disclosed the relationship with his subordinate.

I once represented a woman who was sexually harassed at a multinational accountancy firm. Not only did they terminate her services, but they went on to promote the person complained against. She wrote to the US head-office, asking them to invoke the rules of the Global Ethics committee. They declined, on the ground that they had no control over the Indian company. She continues to fight a lonely battle to this day, while the employer is represented by respected senior counsel. Irrespective of the context in which a crime of sexual abuse occurs, it is a crime against humanity, and must be treated as such.

The writer is additional solicitor general of India. Views are personal.