Sexual harassment cases usually have a marked power imbalance between
the victim and the accused; this may well affect the negotiation
scenario, with the victim being unable to hold her own
In
recent times, the issue of sexual harassment of women at the workplace
has assumed prominence with serious allegations being made against a
former Supreme Court judge, whose court pronounced verdict on huge
scams, and the editor of a magazine with truth and exposure as its
masthead. In the case of the former, a court-appointed committee found
that the complainant’s statement prima facie disclosed an act of
unwelcome behaviour of sexual nature, but matters went no further as the
judge was found to have demitted office prior to the commission of the
alleged offence. The second case has followed the traditional process of
criminal law, beginning with investigation and arrest.
A
Central Act brought into force on December 9, 2013, provides an
alternative method of handling complaints of sexual harassment made by
working women. The purpose of this article is to highlight some key
problems with this well-meaning but inadequately-formulated piece of
legislation.
The
Sexual Harassment of Women at Workplace (Prevention, Prohibition and
Redressal) Act, 2013, was a response to the public outrage over what has
come to be known as the Nirbhaya case. The redress forum under the Act
is an Internal Complaints Committee appointed by the employer to be
comprised of a woman senior employee, two other employees, and a social
worker; it is mandated that at least half the committee must be
constituted of women. Where such a committee is not set up by the
employer, or where the complaint is against the employer himself, a
provision is made for the setting up, by the District Magistrate, of a
panel drawn from social workers and NGOs.
Based
upon the complaint of the victim, the Committee is to conduct an
inquiry and submit its recommendations to the employer (or District
Magistrate), who is required to take action on the same. Where an
offence is made out, the punishment for misconduct is as per the service
rules of the employer; where no such rules exist, then as per the Rules
under the Act. Under the Act, redress ranges from apology and censure
to withholding promotion and increments, and stretches to termination.
The Act, however, is silent on the situation where the employer’s
service rules contain less stringent provisions.
Conciliation process
Section
10 provides the possibility for conciliation between the parties to be
undertaken by the Committee prior to inquiry; this can be done only at
the request of the victim. Conciliation is the process where a neutral
engages with the parties to try and arrive at a settlement of their
differences and disputes. The process has been in vogue in our
industrial dispute enactments and in matrimonial litigation proceedings.
Under
the synonymous term of mediation, it is increasingly a feature of the
country’s courts, many of which have set up their own mediation centres,
offering the service free of charge in thousands of cases where lawyers
trained in the process mediate a range of commercial, property, and
divorce disputes. The advantages are several — it enables better
communication and understanding, is conducted in a confidential setting,
and seeks a solution acceptable to both sides. At first sight,
therefore, it seems quite reasonable to contemplate conciliation being
used in sexual harassment cases.
However,
this is an area where we have to tread warily, and certainly not rush
in. Sexual harassment cases usually have a marked power imbalance
between the victim and the accused; this is implicit in the nature of
the offence. This may well affect the negotiation scenario, with the
victim being unable to hold her own, and end with a result advantageous
to the other side.
Some
acts labelled as harassment are grave violations of a woman’s body and
dignity; these ought not to be the subject matter of a compromise. There
is need to draw clear markers between negotiation and punitive action
and to realise that some offences have the starkness of black and white,
without intervening shades of grey. In these cases, there is also the
need for co-workers to know the identity and culpability of the
transgressor so as to safeguard themselves; such information will remain
cloaked in the confidentiality of conciliation agreements. In a wider
context, public naming can be a societal need.
All
this is not to take away the choice of the victim, who is the central
figure of our concern, but to emphasise that there are factors balancing
the attractiveness of a quick settlement. The Act gets some basics
wrong.
Firstly,
it is a central tenet of the conciliation process that the neutral,
being privy to confidential information usually obtained in private
discussions with each party, cannot, if the conciliation fails, become
the adjudicator to determine wrongdoing. The enactment gives both roles
to the Committee.
Secondly,
good conciliators come from training and experience, and must possess
the sensitivity to deal with emotionally distraught parties, apart from
deftly maintaining negotiating balance. It is not likely that the panel
members taken from the organisation’s employees will possess such
skills, besides the fact that they may well think twice before indicting
a superior.
Third,
compensation is a key punitive and deterrent measure, as cases abroad
show. This Act enables the Committee to recommend compensation and
preserves the right of the court to do so as well but forbids the award
of monetary compensation in conciliation proceedings. The logic is
unfathomable, unless the lawmakers thought that there would be a flood
of women blackmailing hapless men with deep pockets.
Fourth,
there is little justification for the Act to mandate secrecy when the
Committee reaches a determination of guilt and recommends punishment.
The person who has poisoned the workplace may well do so again if not identified.
A mindset of empathy
Given
that many victims will shy away from the publicity, the procedures, the
delay and the harshness in the criminal justice system, the alternative
structure and process is welcome, but needs much alteration.
Helping
victims to make informed choices about the different resolution
avenues, providing trained conciliators, a monetary compensation
settlement option, an inquisitorial approach by the Committee when
indicated, naming and shaming in grave cases, and in-camera trials are
some areas of improvement. We need something else which legislation
cannot provide — the mindset to understand the fears, compulsions, and
pressures on women victims.
The legal concept and test of the “reasonable man” should give right of gender way to that of the “reasonable woman”.
