A New Order
Mumbai-based lawyer Rutuja Shinde was one of the first to offer free legal representation to women who suffered sexual harassment in the workplace. She writes about India’s existing laws regarding such cases, their loopholes, and the action needed to take the #MeToo movement offline
The first time the #MeToo movement gained focus in India was when the 24-year-old law student Raya Sarkar released her list of sexual harassers in academia (LoSHA). The second wave hit when a Bollywood actor accused another mainstream artiste of sexually harassing her on the set of a movie they were shooting for 10 years ago, and since then the movement has taken Twitter and the country by storm. Professional women from various spheres of life have come forward with their stories of everyday sexism and sometimes gut-wrenching harassment, which they have faced at their workplaces or otherwise. American civil-rights activist, Tarana Burke, who founded the Me Too movement in 2006, states on her official website: ‘Our vision from the beginning was to address both the dearth of state resources for survivors of sexual violence and to build a community of advocates, driven by survivors, who will be at the forefront of creating solutions to interrupt sexual violence in their communities.’ For any movement to sustain itself, there has to be a strong legal system to back it up in order for real and tangible change to take place in society, and hence it becomes necessary to look at the existing laws and their scope. It is also important to see the interplay of the law with the movement and bring focus to issues that may have been sidelined.
In India, the problems of workplace harassment came to the fore through the efforts of Bhanwari Devi, a social worker from Rajasthan who was gang raped by upper-caste men in 1992. Bhanwari’s story led to the now landmark judgment of Vishakha v. State of Rajasthan, which changed the laws relating to sexual harassment in the workplace. Subsequently, the Government of India passed the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act). However, is the law all-encompassing? Has the law been able to address the problem of sexual harassment in the workplace adequately? What happens to the survivors who faced sexual harassment outside their workplace? With the oncoming of the #MeToo movement, it is now necessary to look at the current legal framework and see if it is sufficient to sustain the movement offline in the coming times.
The definition of ‘workplace’
The POSH Act applies to any workplace that has more than 10 employees, and these places are required to have an Internal Complaints Committee, which addresses cases related to sexual harassment. This definition, however, does not take into consideration freelancers, people employed on movie sets, women working in the unorganised sectors, domestic workers etc., who have found it extremely difficult to legally address their experiences of harassment. This is one of the biggest loopholes in the law in India right now. Even though the POSH Act provides for Local Complaints Committees that must be formed at each district level, it has not yet been properly implemented, which leaves those who are not employed in a workplace that is contemplated under the POSH Act remediless. This gap has been recognised as a major drawback of the POSH Act especially after the #MeToo movement began in India, and currently its only remedy is to approach the police. This issue was raised by several stakeholders at the Stakeholder’s Consultation for Reviewing POSH Act held by the National Commission for Women. Hopefully an amendment to the POSH Act or the setting up of Local Complaints Committees will help to better address the existing issues.
Sexual harassment outside the workplace
The POSH Act specifically targets harassment that takes place at the workplace, so as to address the power imbalance between superiors and their employees, and to create safe working spaces for women. However, this is just one part of the problem of sexual abuse faced by women on a daily basis — on public transport, in crowded places, intimate relationships, etc. Statistically, it has been seen that 73 per cent of sexual abuse that occurs is perpetrated by someone who is known to the victim. In such cases, there is a lot of internalised shame and fear that the survivor has to face. Their only path is to approach the police and lodge a criminal complaint. In 2013, the Indian Penal Code was amended to bring about major changes in the sexual harassment laws in the criminal law system. Section 354 of the Indian Penal Code was amended. Along with that, the National Commission for Women also has an online complaint system which can be used to complain against stalking. The Commission expedites such cases, and asks the police to investigate these matters. However, despite the law being in place, what we generally see is apathy from law and order authorities, victim blaming and delayed justice. This discourages survivors from approaching the authorities. What the system needs right now is for the authorities dealing with cases of sexual harassment to be adequately sensitised, provide emotional and mental counselling and facilitate the process to make it easier and less traumatic for the victims. Legal aid should be provided to all survivors so as to reduce the emotional and financial burden of litigation and to make justice more accessible.
Acknowledging all victims
The POSH Act as of today only recognises cisgender women as victims and the right to file a complaint against sexual harassment in the workplace is restricted to them. This gender bias has resulted in many instances of harassment of trans persons, cisgender men and others.
Trans persons face sexual abuse on a daily basis, and the law has failed to adequately protect them. Along with the inadequacy in the law, there is a general apathy towards sexual abuse of the LGBTQIA+ community, which faces higher rates of sexual abuse due to underlying causes such as poverty, stigma and marginalisation. Another reason is that hate crimes against the community sometimes take the form of sexual assault. There is also an increased rate of intimate partner violence within the LGBTQIA+ community as compared to heterosexual couples. Cisgender men, too, are not recognised as victims. As is the case of those who harass women, perpetrators in the case of men can also be of any gender, sexual orientation or age, and may even have a relationship with the victim. Men can also be subjected to physical force or psychological and emotional manipulation. Since the POSH Act does not account for survivors who are not cisgender women, the burden lies on the organisations where such employees are working to frame policies that are inclusive and hold all perpetrators to the same standards regardless of the gender identity and sexual orientation of their victims.
#MeToo and the future
The #MeToo movement in India has been monumental in its impact. From politics to academics, there is a shift in the way that cases of sexual harassment are being dealt with, and this paints a hopeful scenario for the future. However, there is a long way to go before the legal system carves out a safe space for the survivors to speak and get justice in a time-bound manner. The voice of marginalised communities; caste-based sexual violence that is deeply ingrained in the system; the harassment of friends and family of survivors, who also have to bear the burden of the acts committed by the accused; sexual violence in rural areas that do not have access to technology; and a diminished faith in due process are some of the issues which were glaringly overlooked by the movement. And it has a long way to go before these lacunae are addressed. One can only hope that with the spread of the #MeToo movement, the process becomes easier for survivors. In the end, the goal should be to give every survivor a safe space to voice their experiences and for justice to be served. Having due process is the way this movement can be sustained, and for that the law has to be followed in letter and spirit.