Sexual Harassment ………….. still in the frying pan.

In this article we examine experiences of sexual harassment of women and the social and economic milieu in which these experiences are located. We propose to use this to map possible courses.

These are some of the stories that we have heard is the course of working to operationalise the Vishaka judgment. 

C is a woman working in a government organization. She is well qualified for the job she is holding. She is on a contract which is renewable every 6 months. She is harassed by her unit leader. The accused too is on contract. C is married for over year. She wants to keep the harassment secret as it might have an adverse impact on her marriage. Her contract is due for renewal. She makes a complaint but is hesitant to push hard. The responsible person does not renew the contract of either the complainant or the accused.

D is a woman who works in a government department. A Sexual Harassment Complaints Committee (SHCC) is duly instituted according to the letter, if not spirit of the Vishaka Judgment. Her complaint is referred to the SHCC. The SHCC inquires into the matter and concludes that the accused is guilty of sexual harassment. However, the department treats this as a preliminary inquiry and conducts another inquiry as a routine departmental inquiry. The complainant is unsure whether to attend the departmental inquiry or not. Legal advice is expensive and time consuming. Worried that she might be subject to disciplinary action for disobeying orders, she attends the departmental enquiry and is put through further and at times hostile questioning.

F works in government department and complains of sexual harassment. The committee investigates the matter and concludes that the accused is guilty and recommends action to be taken. The accused tries through different courts to have the action declared mala fide. Being unsuccessful, he files a criminal complaint of defamation.

L has complained of sexual harassment and action has been taken against the accused. This has happened 3 years ago. Now, she has been routinely transferred and she claims that this is linked to the harassment complaint.

P works in a large national NGO. She has been harassed over a period of time. The NGO refuses to acknowledge the harassment, despite repeated complaints. Eventually a complaints committee is instituted and the complaint inquired into. It is evident that the man is guilty. However she is asked to resign, as working in the organization is likely to be difficult for her. The woman eventually believes that it would have been easier to have put up with sexual abuse rather than complain.

In workshops with women in the garment industry, the women admit to being sexually harassed. But with unemployment rates so high, they fear termination. The women feel that in any case the harassment is not very severe. And in cases where it is severe the odds are against making a complaint, as families are dependent on their income. 
 
In workshops with NGO activists, the women here too acknowledge harassment, but are unable to cope with the challenges that follow when a complaint is made. Besides the women lack any support structure and subscribe to the notion that NGO work is value added. Other NGOs would hesitate to support and advice the complainant. The political and personal ramifications of this are far-reaching and ostensibly adverse. The complainant therefore is bereft of any support, as often NGOs are the only source of support. Further, in many NGOs there are few procedures adhered to. Many of them do not have office rules etc. in other words the functioning is completely arbitrary and women’s rights is a low priority. 

These are some of the women who have sought our support. Some of these complainants have taken 1 month and some have taken up to 6 months. When we listen to these women, what troubles us is that the existing mechanisms do not adequately address the problem. The expected pot of gold at the end of the rainbow is invariably at the other end. 

What are the mechanisms that are in place? How do they function? What are the conceptual categories that they work with? Who are the people on the committee and how is power played out? What is the intersection of morality and human rights? Are there spaces created for affirmative sexual discourse? These are some of the questions that appear with alarming frequency. 

We are informed by the experience of the committees that we are a part of. These committees are set up because they are legally mandated. Further, there is no other mechanism that is preventive. The committees are dormant and are activated only on receiving complaint. They have neither the interest not the ability to be proactive. Though the committees have legitimacy, it often lacks space and time to take initiative Very often the chairperson of the committee has to defer to the wishes of the head of institution, either because her career is jeopardized or because she can be over ruled. To add to this, there is not much attempt made to have a policy of non-discrimination in the workplace. The scope, power and responsibilities of the committee are undefined. Therefore there are no protocols, processes or budget worked out. The fall out of this is that decisions are ad hoc. The committee members themselves are not aware of the nuances of the rights debates. Therefore all decisions are dependent on attitudes of the constituent members of the committees. Because of this, though the mandate of the committee according to the Supreme Court guidelines is to frame sexual harassment as an equality and human rights issue it ends up being a morality issue, burdening the complainant further. The role of the outside expert is unclear both to the organization and the expert. In most cases there is a single outsider. Considering that most NGO staff travel, processes are delayed. This could be overcome by having 2 or more outsiders on the committee. The downside of this is that there are not enough NGOs who are adequately informed and act from a feminist perspective. 

The members’ sense and experience frequently leads them to fall back on myths and stereotypes which are neither celebratory nor empowering for women. Many of the members seem to be far more familiar with the criminal justice system rather that the human rights framework. This often leads to demands of ‘proof beyond doubt’ and this is translated into eyewitnesses of the act itself. In such a situation what would be the role of the outside expert? Given the limited understanding of democratic processes, the voice of the outsider is out voted. 

The conceptual categories that committee members work with are largely dependent of their personal politics and location in social matrix. Many of them subscribe to dominant, read common sense, beliefs and values. This is played out in terms of prioritizing the family above all else. This is reflected in the complainant encouraged to keep silent about the harassment, in case it has a detrimental impact on the family. Unfortunately this is a chilling reality for many women. In many work places it is near impossible to maintain confidentiality. The support of family becomes pivotal in the woman’s access to rights. Further, many women have entered the work force for the first time. While women have entered the organized sector in unprecedented numbers, power equations, favouring the woman, within the family has changed only marginally. On the other hand we hear of harassers telling the committee that the complainant is like his daughter, sister or mother. This is submitted as defense and often accepted as such.

In other words, the concept of ‘pure woman’ is very strongly and deeply rooted and seeps into, repeatedly frustrating rights assertion. This is evident when it comes to defining ‘unwelcome’ which is the core of sexual harassment complaint. Welcome or unwelcome is determined by the dress, demeanor and sexual knowledge of the complainant. The pure woman is heterosexual, monogamous and if unmarried is completely asexual, whether in thought, word or deed. There is the underlying assumption that only good women are deserving of rights. Hence any woman who falls outside of this definition doesn’t deserve justice, because she invited the sexual harassment by stepping out of bounds. We are disturbed by the frequency with which we come across this and it is one of the most difficult impediments to overcome. 

What is the larger context in which these committees function? We can look at different layers that mediate and are mediated by the milieu. We look at a few, which we believe are significant. 

One is the rise in fundamental right wing politics. It is not so much that it is the party in power, but that it has permeated into popular imagination. In other words it has seeped into the dominant discourse. The construct of ‘woman’ in this discourse is the one who is sequestered at home and looks after the family. The family being the most important, indeed the only institution worth nurturing, women should do the nurturing. This is the norm and women who don’t conform, deserve what they get. In fact they welcome and intentionally invite sexual harassment. This has a considerable impact as the view of the committee members.

The second major factor is silence and taboo surrounding anything to do with sexuality. There is embarrassment and wishful thinking that the harassment will go away if not spoken about. In the course of our study, in collaboration with Sakshi (New Delhi) at one organization, the women and men held the opinion that the word ‘sexual’ should be deleted and a suitable euphemism used. Women complainants hesitate to use the word and couch their complaint in ambiguous language. The complaints committees are loath to take up such complaints. Unless there is a healthy dialogue between men and women and among women, the implementation of the Vishaka judgment will be in letter and not spirit. Further, much of the debates on sexuality have been in the framework of violence and violations. This has skewed the as yet nascent discourse. In some of the cases the person responsible has terminated both the complainant and the accused. In other cases, stronger, narrower and stricter dress codes have been put in place. Another option has been to segregate women and men. To add another dimension to this same sex harassment is not even recognized, let alone addressed. Though there is nothing in the Vishaka judgment to specify that it is limited to men harassing women, it is often construed as such and any other complainants are met with laughter and derision. Another dimension is the life and work of hijras. Neither their work nor their gender identity is recognized as such. What would be the redressal mechanisms for them? 

Another factor is the lack of public space for women. As women have entered the labour force, even traditional spaces for them have shrunk. On the other hand they are not encouraged to join groups or clubs independently. The sites for creating social capital are thus very limited. This reflects in the lack of support for the women. Consequently they fall back on an ideology and support systems , which are detrimental to women’s rights. Hence many complaints go unvoiced. 

There is a great deal of power differential among women too. Very often it is the upper class, upper caste women who has the wherewithal to complain. Therefore women who are most vulnerable accept it as a part of doing wage work. 

Yet another factor, which constitutes the larger milieu is the increasingly polarized civil society. It is polarized on the basis of caste, language, region and religion. The caste politics plays a central role in many organizations. As a result, sexual harassment is viewed through the lens of caste and religion. In one committee, the accused man threatened, the support of the complainant, the committee and the complainant that he would file a case citing the Prevention of Atrocities on ST and SC. He reminded us that it is a non-bailable offence. Language and region politics have the same adverse impact. 

The function and responsibility of the outside expert is not clearly defined. Many of the organizations resist the idea of an outside expert. Further, the rules of the organization are a labyrinth. Negotiating in this is often a Herculean task. In one work place, the committee was duly set up, but the standing rules were not amended. Undoubtedly the organization should do this, but given the climate prevailing, they don’t. There is no guarantee that the outside expert will provide a feminist perspective and be familiar with the terrains of law. The few experts that are available are so often strapped for time that action for complaints take months. In the rural areas where there are fewer NGOs, the task grows exponentially difficult. 

The Vishaka judgment is landmark in myriad ways. It is indeed a powerful weapon. However this is the grim reality that it has to activate in. What then will ameliorate the sexual harassment that is a painful reality in workplaces? How do we bridge the disjuncture between the law and the lives of the harassed, be they men, women or hijaras? 

We have no answers. We have scores of questions and a few suggestions. We believe that the Vishaka judgment is only the first step. This needs to be followed up by other action. One such is to challenge several existing laws like the law on obscenity for instance. The obscene representation of women as defined in this leaves everything to be desired. It is entirely from the male gaze and is protective of the ‘modesty’ of women. This results in educational material being declared obscene and effectively shuts spaces where women can define themselves affirmatively. Another way is to create spaces for affirmative sexuality. The most important and therefore most difficult is to change attitudes. Undeniably attitudes and law impact on and are impacted by the other. Radika Coomaraswamy proposes that “the future of human rights in South Asia does not lie with the state but with the confluence of the interests of the state and movements in civil society”. She cautions that “unless human right values take root in civil society and unless civil institutions and non-governmental organizations (NGOs) take up the cause, then women’s rights as human rights will have no resonance in the social institutions concerned”. (Human Rights of Women ed. Rebecca Cook, University of Pennsylvania Press, 1994) 

This means that unless we have a multi pronged strategy, which is layered, rooted in equality and justice, with competence and information to match, this particular weapon will remain unused.

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