Opinion Complainant in the dock
The sexual harassment law was passed,but lack of debate has left flaws
The sexual harassment law was passed,but lack of debate has left flaws
The Sexual Harassment of Women at Workplace (Prevention,Prohibition and Redressal) Bill,2012,was passed by the Lok Sabha earlier this week. In the din over coal allocations,this was done without any discussion. It is a shame that we women were denied the opportunity to hear what our elected leaders had to say about the bill. The purpose of any law that proposes to provide a grievance redress mechanism for the harassed woman at the workplace is to recognise the fundamental rights of working women under Articles 14,19 and 21 of the Constitution,and to prevent such harassment.
Section 14 of the bill calls for action against the complainant in case the internal committee or the local committee,as the case may be,arrives at a conclusion that the allegation against the respondent is malicious or the aggrieved woman or any other person making the complaint has made the complaint knowing it to be false. This section is likely to have a chilling effect on women wanting to complain about sexual harassment,since she might fear that the complaint will not be proved. It must be remembered that popular thinking often collapses complaints that are not proved with complaints that are allegedly false. Yet the two are not the same.
Often,the only witness is a colleague at the workplace. He or she will be reluctant,for obvious reasons,to depose against a colleague. As a result,the internal complaints committee could find the complaint not proved for want of evidence. We need a clause to the effect that the sole testimony of the woman,if otherwise found credible,will suffice to prove the case. Otherwise,there is a chance that the complaint will not be established. From not proved to false and malicious will be a short journey,causing untold misery to a person who made the complaint seeking justice. Moreover,it is surely not the job of the internal complaints committee to decide or prove that a complaint is false or malicious? Such a provision does not exist in any other law. It seems to be based on a presumption that all women lie when they say that a sexual advance is unwelcome. The argument advanced for the provision is that it will present misuse of the law. Yet all laws can be misused judges exist to take care of that issue. One wonders why the problem of misuse must come up only when it is a question of womens right to live free of violence.
After the internal complaints committee finds that sexual harassment has taken place,it is required to send the report to the disciplinary committee for action under the service rules. The bill must clarify that once the inquiry by the internal complaints committee is complete,and the offence is proved,the disciplinary authority will not start another inquiry to decide on the issue of guilt. It may only decide on the issue of punishment. The procedure of an inquiry cannot be in accordance with the service rules. Such rules deal only with a situation in which the employer accuses an employee of misconduct. The bill covers the charge of misconduct against a co-worker. Service rules also overlook the rights of the aggrieved woman,call for cross-examination of witnesses and deposition. They are therefore inadequate to govern cases of sexual harassment.
The law should have spelled out provisions to protect the woman during the inquiry. These should have included screening the woman from the perpetrator,disallowing obnoxious questions that could amount to character assassination,and doing away with cross-examination of the woman,except through questions administered by the committee if necessary. It is also not clear why the complaint must be lodged within three months of the offence being committed. A woman who has suffered sexual harassment or other forms of gendered violence cannot articulate her injury in the immediate aftermath.
The bill has other shortcomings. It does not take care of sexual harassment in the armed forces,where the chain of command is strong and power is deeply entrenched. Given that such offences are rampant in the armed forces,and that the crime is often committed by persons in authority,it needs to be addressed by law.
It is a heartening sign that domestic workers have been covered by the law. However,no effective remedial measures have been laid down for them. Section 11 lays down that domestic workers who have undergone sexual harassment will have to make a complaint to the local committee. If sexual harassment is proved there,the local committee will direct them to the police. This roundabout method of redressing the complaint will only cause delay and is likely to doubly harass them. A procedure facilitating access to the police and mandatory recording of FIRs needs to be put in place. It should be mandatory for the employers of domestic workers to contribute to a fund for unorganised workers. This could be used for compensation for domestic workers. These and other issues ought to have been debated in Parliament before the bill was passed.
The writer is additional solicitor general of India,express@expressindia.com
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