• The Feminist Times

Reading further into the Vishakha Narrative of Legal Protections

It is not difficult to find the authority that permits the laws to be made for such flaws in the fabric of our society that at a glance seem painfully obvious. These Meta documents of norm or authority exist at many stages and in many forms, The Constitution of India, The United Nations Declaration of Human Rights, The Statute for International Labour Organization, The Convention on the Elimination of all Forms of Discrimination against Women’s treaty etc. They have existed so for many years, sure, but what effect have they had on the social structures that we hold to be pernicious to us? Law as a function exists never in isolation. It is woven tightly with many other “fields” of society, from politics to economics to waste management to human lives and rights management, law has become a function that propels motion, it allows for ideas to be implemented in the form of legal sanctions (Rights and duties) and in case of their infringement, penalization. In fact I would be bold enough to say that it is easier to not categorize law as its own area of study than to do so. A very old argument in the “field of law” is the issue with the language of law, where on one side the argument is that the language so constructed allows for easier transactions for those who are well-versed with it, that is the lawyers and the judges in the courts of law, and the other side of the argument is that the language alienates the people from their own matters of legal nature. I may be well versed that my dignity and rights have been infringed but unless my lawyer correctly surmised the facts and the language of law in the court of law with its own secret language of politics, my very personal facts of crime or indignity have no substantial repercussions in the real world. Although, this recantation of the language argument is an oversimplification and it may not be the best analogy for the matter at hand, but it bears importance in underlining a particularly dangerous attitude that the people have developed regarding matters that trace their roots to the legal fields: an attitude of ignorance. Ignorance that exists in multiple stages, firstly in the acknowledgement of the fact that the criminal and social problems exists at all, and secondly in the fact that the solutions of these problems are not a matter they should concern themselves with, it is for the lawyers, the HR, the courts and judges to decide and cater to. It is for the person who falls prey to the crime to deal with, not a matter for daily discussion and definitely not a matter to be talked about openly, or be involved in as part of finding the solution. This division of labour is debilitating than helpful for the particular matter that we will concern ourselves with in this particular article i.e. of Sexual Harassment of Woman at the Workplace.

In a recent news clipping (March 2020) the DGCA issued a one-page letter to the CEOs of the Airline Companies operating in India to show compliance to the Vishakha Guidelines which later became the Sexual Harassment of Women at Workplace {Prevention, Prohibition and Redressal} Act of 2013 (POSH Act). Due to a deluge of complaints that they received by the women working as pilots, cabin crew and in other technical areas regarding sexual harassment by their senior colleagues1. The matter of sexual harassment at the workplace has been bouncing around in the playgrounds of law and policy makers since 1997. The girls born in the same year would be turning 21 in the coming year, passing their under-graduation degrees and entering workplaces and yet the circumstances that existed and threatened the safety of women both mentally and physically as workplaces remain more or less the same. Every woman that enters a workplace has her own story about understanding how the concept of “power” is played between the sexes at a workplace. The landmines of soft power struggles are experienced by every single one of us. The gender inequality is not just manifested in the ugly extremisms of sexual harassment and violence but also in the ways of preferential treatment, detrimental treatment, threats about promotion, dumping of extra workload and even the unsavoury notion that a woman wouldn’t be able to say “no”. This premise of workplaces in India has maintained its status quo since the 1990s till today. Why is the change so slow, if happening at all?

The guidelines that emerged from the 1997 case instated in the Supreme Court of India bears repetition here because of two important aspects of the case: The elements of Caste and Class. The Wikipedia page for the case boldly quotes that the lady, Bhanwari Devi became a victim of crimes of sexual nature directly in connection to her body of work, but also because of her status as a lower caste woman doing work that perturbed the social structure of the community she was working at. The fact of caste and class is ubiquitously present along with the definitions of workplaces and work that women undertake in India. A definition that does not include these two facets of the social truth make the law tone deaf to the needs of the women that it swears to protect.

A 2015 report surmised by Ernest and Young, regarding the compliance of companies in corporate sector shows that 31% of Indian Companies are not compliant with the requisite features of the act, i.e. the construction of the Internal Complaints Committee.

“44% of the respondents’ organizations did not display the penal consequences of sexual harassment at conspicuous places, Indian companies ranked low, and standing at 50% as compared to MNCs which stood at 40%. Here again, small and medium companies too fared low with 71% of the respondents indicating that their organizations did not display such warnings clearly. 41% of the respondents are yet to train their ICC members, although the Act specifically mandates this. Indian companies fared low with 47% of the respondents saying that their ICC members were not trained. On the other hand, MNCs stood at 34%.

The POSH Act of 2013 functions by identifying workplaces that have more than 10 employees, workplace means “any place visited by the employee, arising out of, or during the course of employment, including transportation provided by the employer”, the burden of prevention of crime and creation of a gender neutral working environment in on the employer, thus the liability falls on the employers. The complaints that arise out of the workplace are to be handled by an Internal Complaints Committee(ICC), compulsorily presided by a Woman, constituting of 50% of women members and should have the presence of a 3rd Party, NGO which has worked in this sector and has extensive knowledge on the matters of sexual misconduct and industrial misconduct, this particular requirement has been deviated from the criteria set out for Presiding Officer, or have appointed independent members from NGOs who may not have adequate experience and expertise in matters of sexual harassment, with the ultimate effect being a half-hearted compliance with POSH. Moreover the lack of clarity regarding the process of investigation and the documents that are required for the same has allowed for a unique situation where the internal hearing and final recommendations of the ICC is many times declared void for the lack of documents in the appeals at Courts. The rule of limitation of a maximum of 6 months for filing the complaints (especially when the ICC has not been given clear cut power to allow or investigate the delay) frustrates real issues from reaching the forum.

The definition of workplace in the Act has been a bone of contention since its days as a bill in 2010, the issues arising out of a fluid workplace are relatively challenging in comparison to fixed workplaces. The same issue is aggravated more so due to the COVID19 alterations to our understanding of the term “work from home”. Although earlier some states had instated online portals for complaints, the same were not followed up by the Internal Committees of the particular employers from the other side, thus making these portals moot. Another major issue that has been pertinent within the vague outlines of the Act is that there are no compulsory means of checking whether the protections of the act are actually working or not because the government is not involved in the last stage of legal implementation: checking the effect of the law on the curbing of the problem it aims to eradicate. As of 2019 only Maharashtra and Telangana have made it compulsory for the workplaces that fall under the categories to institute the ICC along with electronic means of filing complaints4.

Lastly the solutions that are provided by the Act are also misinterpreted by the companies and employers. With the aim of maintaining confidentiality and a “no-fuss” policy, the corporations especially have relied on the solutions of “ATL- Ask to leave”, rather than pursuing more criminal and permanent record based final outcomes. The companies/employers choose this to keep their reputations intact but it also allows for the perpetrator’s reputation and work record to be free of any warnings for their next employer and thus ensuring that they retain themselves in environments that can be misused by them again and again.

A very important aspect that the POSH Rules of 2013 require the employers to work on is creation of policy7 within the institutions that would allow for help, development and clarity of the attitudes that are healthy in the promotion of an environment that is gender-equal. The employers have to focus on the training and awareness aspects of the Act as well8, the problems of our society are multifaceted, only implementation of the law when a violation occurs would not be the keystroke that changes the programming of how we are functioning. When the gist of the law is assimilated in the social movements, then only the problems would become scarce. Although the examples set by the states of Maharashtra and Telangana have to be followed by the rest of the States of India, this process would be faster if we understand the problem of sex-inequality as an issue that affects us all, instead of having to talk about compliance, a proactive role by both the employers and the employees has to become the fabric of our realities. Sexual violence is an extreme manifestation of issues that frack our society, but especially our industries: Starting from the lesser number of female children who get primary or even higher education, less of them go on to attain professional degrees, their numbers in offices are thus in minorities, they get lesser promotions than their male counterparts, less women reach senior management positions, they get paid less, they are afraid to ask for the pay that they are due, there are lesser women in leadership positions than men. These culminate into creating an environment where their dignity and safety is finally threatened. Again at the risk of repeating myself, I must say that these protections granted by the law have to be supplemented by the actions we take in our everyday lives. As the final word I encourage you to read the POSH Act: and tell us what you do and do not understand, what you think should change, what your experience with this piece of legislation has been. Let’s start a conversation.

- Pragya

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