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Sexual harassment
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Justice doesn’t come easy
Vishaka judgment and the Tarun Tejpal case
Redefining sexual assault
Law versus reality: Victims speak up
What employers must do
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Sexual harassment
Since
the long hand of the law got after noted journalist Tarun Tejpal, accused of sexually assaulting his junior at Tehelka, the dark realities of unsafe workplaces have become the centre point of most discussions. At the heart of every conversation these days is the courage this 20-something woman displayed in the face of extreme odds, the mightiest being her perpetrator’s clout that has the potential to unnerve any victim no matter how brave or aware. Like the instant case involving Tejpal, a powerful former editor of an investigative magazine, most cases of sexual harassment of women at workplaces boil down to the clash between the powerful and the weak, hierarchically speaking. The meagre research done in the area suggests that perpetrators are frequently persons in positions of authority and trust and victims are often women in subordinate positions. Power imbalances mark the majority incidents of harassment documented in “Sexual Harassment in the Workplace: Experiences of Women in the Health Sector”, the first-ever study in this field by an organisation called Sanhita. The objective of this work was to see if people’s behaviours towards women had changed since 1997 when the Supreme Court first recognised sexual harassment in workplaces and laid down guidelines directing employers to prevent crimes and provide redress mechanisms. The research involving interviews with 135 women doctors, nurses and patients in four government and private hospitals in West Bengal revealed that few women sought redress and fewer received swift action. “Out of 135 women we interviewed, 77 admitted to having faced some kind of sexual harassment at workplace and only 27 reported the case. The majority of cases (41) were perpetrated by doctors who are figures of authority in the hospital hierarchy. In 45 cases, the harassment was psychological followed by 41 cases where it was verbal, 27 cases of unwanted touch and 16 of sexual gestures. Five women said they knew of others who had faced attempted rapes,” notes Paramita Chaudhary, lead researcher of the study. The research found that sexual harassment in hospital settings had come to be perceived as “normal” and “harmless”, with victims often resigned to their fate and male doctors terming advances as “part of life”. The study quotes a 30-year-old doctor as saying, “Women will enter various professions and this is how men will behave. We have accepted this is how things will continue.” Another said, “Only few indulge in unwanted touching so it does not matter.” A 32-year-old nurse said, “Doctors touching you or holding your hand is routine in hospitals. Nurses are shy and don’t discuss this with anyone.” Terrifying narratives stare at you from the documentation, including that of a 25-year-old woman doctor who says, “I was working as an intern with a dentist who was 70 years old. One day he called me saying he had a very good book to show. It was pornographic. I stopped confronting him.” About another doctor’s conduct, a nurse said he would often call up a nurse and say, “A private room is empty. I am ready, come and join me.” “It is terrible, especially in hospitals where nurses are subjected to harassment both by doctors and patients. Reporting hardly helps,” says a senior nurse at a government hospital in Delhi. Reflecting similar concerns around the rising cases of sexual harassment of women, Sanhita concluded that notwithstanding the Vishaka judgment, sexual harassment continued to define the working conditions of many women in the health sector. It argued that while the Vishaka judgment was a necessary condition, it was not good enough to curb the crime. “What is required is an appropriate implementation mechanism which recognises the obstacles posed by power imbalances and gender norms in empowering women to make a formal complaint on the one hand and receive proper redress on the other,” the researchers say.
The law also provides for appropriate penalties against those complainants who, knowing the complaint to be false, press the charge of sexual harassment against a respondent. Under the Act, the internal complaints committee can penalise complainants if they find the charge to be false, malicious and motivated.
Zero tolerance In all matters pertaining to crimes against women there has to be zero tolerance, be it sexual assault on the Tehelka journalist or the charges of snooping on a woman against Gujarat CM Narendra
Modi. Shobha Oza, All India Mahila Congress Chief
Shocking incident It is mandatory for the management of an organisation to assist the victim in pursuit of justice. I am appalled by the arrogance of Tarun Tejpal and Tehelka which sought to brush aside the assault and indulged in penance by stepping aside for six months. I am
shocked. Smriti Irani, BJP Women's Wing President
Will ensure women’s safety I have instructed the Prasar Bharati Board and our representative on that board to look into the concerns around women’s safety voiced by the NCW who probed a charge of sexual harassment against a senior Prasar Bharati official. We will go to any length to ensure our workplaces are safe for women and to change the rules if required. I am told casual workers feel vulnerable. We are willing to see how we can improve things for
them. Manish Tewari, Information and Broadcasting Minister
Harassment rampant It is very difficult for women in the media to report these cases. The unwritten and unstated rule of solidarity is practised by the top bosses in the industry when it comes to these matters. Harassment
abounds. Sujata Madhok, President, Delhi Union of Journalists
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Justice doesn’t come easy
The committee of three sitting apex court judges constituted by the Chief Justice of India to inquire into the allegations against a former SC judge held seven meetings and on November 29 submitted its report to the
CJI. All it said in the report was: “The statement of the intern has been recorded and the statement of Justice AK Ganguly has also been recorded and the report submitted to the
CJI.” Justice Ganguly, accused by the law intern, has denied the allegations. The new committee only has the power to go into complaints levelled by women against lawyers, other staff and visitors, but not sitting and retired judges. “Judges continue to enjoy immunity from any legal process in cases of sexual harassment,” says Additional Solicitor General Indira
Jaisingh. Top Prasar Bharati officer suspended: This October, Prasar Bharati suspended Additional Director General Raj Shekhar Vyas after the National Commission for Women
(NCW) established that he had sexually harassed a worker, who suffered mental trauma for eight years before finally reporting the matter. The girl was terrified of going public against a top Prasar Bharati official, but when she did, she was handed out a transfer of Vyas from Doordarshan to All India Radio (AIR); this despite an internal committee finding him guilty. It was only after NCW’s intervention that the official was suspended. “The victim had no support. Women we interviewed in AIR and Doordarshan had no clue about the complaint committees. The accused was shielded by the top management citing staff shortage. When we persisted, he was suspended,” NCW member Charu Wali Khanna admits. AIR duty managers: BN Shelly and NK
Verma, senior duty managers at FM Gold, were recently ousted after a radio presenter alleged sexual harassment at their hands. Action came after the AIR Broadcasters Association moved the Delhi High Court which pulled up the government for lack of seriousness on the Vishakha guidelines. In its affidavit, the government admitted that cases of harassment had taken place at AIR and redress mechanisms had been put in place. Victim dies seeking justice: A 40-year-old chemistry laboratory assistant died this October after setting herself ablaze outside the Delhi Secretariat. Pavitra Bhardwaj had long been alleging harassment at the hands of the principal of BR Ambedkar College. She even took her complaint to Delhi Chief Minister Sheila Dikshit before resorting to the extreme step. An NCW probe into the matter, however, gave a clean chit to the principal, saying her last letters didn’t mention sexual harassment. Top CEO sacked:
Earlier this year, Phaneesh Murthy became the first Indian CEO to be sacked on a charge of sexual misconduct at workplace. An IIT and IIM graduate, Phaneesh was ousted as iGATE CEO for not disclosing his relationship with a subordinate. The company said in the sacking order that charges against him had not been proved. He had faced similar charges in the past.
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Vishaka judgment and the Tarun Tejpal case
Nothing
seems to have changed in the 16 years since the three-judge Supreme Court Bench headed by the late Justice JS Verma (who also chaired the three-member government panel to suggest criminal law amendments post the December 16 Delhi gang-rape) delivered a landmark verdict in the Vishaka case. The case filed by several social activists sought justice for a Rajasthan-based social worker who had been gang-raped by upper caste men for trying to question societal stereotypes against women. The apex court ruled that the employers would have to provide complaint committees to help women report harassment and come out with policies to prevent the vitiation of work environment. In the Tejpal case, the managing editor of Tehelka, Shoma Chaudhary, to whom the victim wrote an email detailing the two instances of sexual assault in an elevator, is on the wrong side of the law as she failed to intimate the case to the police, which has since booked Tejpal for rape and aggravated sexual assault and is likely to book her for trying to cover up matters. Though Chaudhary resigned from Tehelka on November 28 citing “inexpressible dismay” at the victim’s allegations of a cover-up, she faces serious charges of criminal conspiracy on two counts — one, without forming a complaints committee and letting it probe the charges she presumed that Tejpal, having unconditionally apologised to the victim and offering to recuse himself from work for six months, had done more than what the victim had demanded. Two, she kept defending Tejpal saying “he had a different version of the account and whether it was consensual or non-consensual”, least realising a sensitive feature of the anti-rape law which tasks courts to believe the victim’s testimony unless proved otherwise. “The onus of proving that the sexual engagement was consensual rests on the accused. The victim’s account is to be taken as the truth otherwise,” says leading rights activist Madhu Mehra. This position has been repeatedly upheld by the Supreme Court. In the Apparel Export Promotion Council versus AK Chopra case of 1999, the Supreme Court slammed the High Court for reinstating an officer found to have attempted molestation. The accused had been dismissed but the High Court ordered his reinstatement saying, “The petitioner only tried to molest the victim and did not actually molest her.” The apex court said the lower judiciary’s order “rebelled against realism…where the evidence of the victim inspires confidence the courts are obliged to rely on it. Sympathy in favour of the superior officer is highly misplaced”.
Conspiracy of silence The fact that Phaneesh Murthy, the first Indian CEO to be sacked on a charge of sexual misconduct at workplace, progressed despite his alleged history of sexual misdemeanours raises questions about equitability and transparency claims of the IT industry. NASSCOM, which has 1,500 member companies engaged in IT, has no centralised database of the nature of complaints made by women employees, though they say all their member firms have complaint redress mechanisms. Ground checks, however, reveal a different story. Most complaint committees in IT and BPO firms, where harassment abounds, are comprised of company’s own officials and inspire little confidence in women. “We have a committee and its members are in house,” HR manager at a Gurgaon-based IT company says, admitting that the committees have not been constituted the way Supreme Court guidelines stipulate. Women working in the technology sector have meanwhile developed their own protection mechanisms. “We have something called a ‘dishonour list’ which names senior people given to sexually suggestive behaviour. We try and keep off them. Corporate bosses practice unstated solidarity with each other when it comes to these things. Anyone who complains is branded as ‘difficult to work with’. A complainant in our world faces a real risk of job loss,” says an IT firm employee based in Delhi. NASSCOM says reporting of sexual harassment by women is on the rise on account of leadership provided by the firms. “There is an increase in the number of such cases being reported. This is a clear indication of the growing confidence of women in our redress systems,” Nidhi, a NASSCOM official says in an email response to The Tribune. Statistics show women make up 40 per cent of the workforce in IT firms. That said redress mechanisms in the corporate world have often come under question. The NCW, which alone maintains some kind of data on sexual harassment at workplaces, says they encounter scores of harassment cases involving women from the IT world. In most cases, the complainants’ services have been terminated while the accused prospered. Charu Khanna, NCW member. says the private sector has no service rules even when the complaint committees are required to recommend punishment as prescribed under the service rules. All private employers must draft proper service rules elaborating upon the kind of disciplinary or other proceedings which people accused of sexual harassment will attract. These rules should be part of recruitment contracts. Additional Solicitor General Indira Jaisingh once represented a woman who was sexually harassed by an MNC firm. The victim lost her job while the perpetrator was promoted. Charu Khanna adds, “Most women we meet want to live in peace and are not interested in getting someone sacked. We hear horrendous cases of harassment. While we have a law in place, we do not yet have the rules. The draft rules the Ministry of Women and Child Development have circulated for comments on the new law makes the procedures very complicated for women. The rules require saying things on oath, giving advance notices to respondents, giving copies of the statement to various stakeholders. These procedures defeat the purpose of the law which seeks to keep the complaint mechanisms simple for the victim.”
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Tejpal could be instantly booked for rape thanks to the enhanced definition under the reworked criminal amendment law passed by Parliament earlier this year. This law expands the definition of rape to go beyond peno-vaginal penetration and cover non-consensual penetration of a woman’s private parts and mouth with any other part of the body of the accused (fingers in Tejpal’s case). It also provides for aggravated assault which is defined as “perpetrated by someone in the position of trust” (as Tejpal). While the punishment for rape under the new law is minimum seven years of rigorous imprisonment, that for aggravated assault is a minimum of 10 years up to the rest of the natural life of the accused. The third count on which Tejpal has been charged is Section 354, IPC, which recently replaced Section 509, IPC, which only spoke of outraging a woman’s modesty. Section 354, IPC, recognises a range of sexual harassment offences such as “touching with an intention to disrobe a woman” (as Tejpal allegedly did), stalking and voyeurism. The crime of disrobing attracts rigorous imprisonment between three and seven years. While the anti-rape law is clear on how the police should progress in cases of sexual assault, it is hazy on what a victim should do in case she has suffered a graver offence. “The law gives the victim a choice to either approach the criminal justice system or the internal complaints committee which has been provided for under the Vishakha guidelines and also the new Sexual Harassment Prevention, Prohibition and Redressal Act 2013,” says Supreme Court lawyer Vrinda Grover. The employer’s responsibility is clear and he/she must approach the police if the crime is an IPC offence. In the Tejpal case, Shoma Chaudhary failed to intimate the police and decided that his self imposed six-month sabbatical from work was good enough.
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Law versus reality: Victims speak up
Workplace: Tehri Hydropower Development Corpn, Ministry of Power
“He would make lewd comments in the presence of my boss. I complained in 2004. A committee was set up, but it comprised my juniors. After years of struggle and five commissions later, all I managed in 2007 was an unconditional apology from this man. The apology came with a rider that I withdraw my complaint, which I did. I lost two promotions while my perpetrator and my juniors were promoted. I was not given details of the department promotion committee meetings despite directions by the Central Information Commission. I petitioned the then Power Minister Sushilkumar Shinde but got no help. Ultimately, I applied for a job in another department and moved out. I was discouraged by my women colleagues and got threats. I can’t say if it was worth it. Laws remain only on papers.”
Workplace: Maulana Azad Medical College, GB Pant Hospital; Delhi Govt
Postgraduate students of the psychiatry department complained to Delhi University in 2012 that a senior doctor was harassing them. “He would call us home at odd hours, often around 7 am when his wife and children would have left for work and school. Sometimes he would be seated too close for comfort. Once he called our senior home. She was shocked to see him in underpants. That was when we filed a formal complaint and a committee was formed,” says a complainant. The committee, however, concluded that the nudity episode was a “miscommunication”. The victims petitioned the NCW and he was transferred.
Workplace:
Delhi University College
Women teachers at a college complained to Delhi University about certain senior male teachers commenting on their undergarments, discussing with them their menstrual cycle and sometimes the delivery of their female relatives. The NCW is investigating the complaint. It says recruits from small towns often complain about employers following them to toilets. “It is a myth that women dressed in a certain way are less vulnerable. Women in cotton sarees invite equally suggestive remarks,” a 2012 NCW documentation states. Women in banking, education and corporate sectors are also vulnerable. “Lack of presence of women on the board of directors in companies and negotiating table adds to the problem. In the banking sector, women make up for 25 per cent of the workforce but only 2 per cent of the top management is comprised of them,” the study says.
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Elaborating
on the Vishaka judgment, the new law provides for a complete procedure to set up internal complaints committees. All government and private sector organisations are required under the law to set up four member committees in every branch where the strength of their workforce is 10 or more. The four-member committee should have a senior woman employee as president, one NGO representative and two employees having knowledge or legal and gender issues. One of these two should preferably be a woman. The contacts and emails of committee members need to be widely publicised in the offices and the employer must ensure the committees meet regularly and their members attend the proceedings. To cover the organisations with workforce less than 10, the law obligates district magistrates to set up local complaint committees in every district to enable the women to approach. Domestic workers can also petition these panels and they in turn can refer the matter (of domestic workers) to the police to investigate under the relevant IPC procedures if a prima facie case is made out. The local complaint committees are critical to the success of the new law considering 41.2 million organisations out of the 41.83 million listed in the 2005 Economic Census have less than 10 workers. The complaint committees would have to complete their probe in 90 days following which the employer would have 60 days to act on the committee's recommendations. Importantly, the employer would also have to draft a policy against sexual harassment to indicate zero tolerance to the crime. "The private sector has no service rules even when the complaint committees are required to recommend punishment as prescribed under the service rules. So all private employers must draft proper service rules elaborating upon the kind or disciplinary or other proceedings which people accused of sexual harassment will attract. These rules should be made part of the recruitment contracts so everyone knows that appropriate behaviour at workplace is required of them," Charu Khanna of the NCW says, adding that the government sector already has well defined service rules.
Yet to be notified Having signed the Convention on the Elimination of all Forms of Discrimination against Women on June 25, 1993, India was under the legal obligation to bar sexual harassment at workplace. The Act was passed by the Lok Sabha on September 3, 2012; by the Rajya Sabha on February 27 this year and assented to by the President on
April 22, 2013. Seven months on, the government is yet to notify rules of the law to explain how employers must go about securing workplaces for women. But there’s still a lot the employers can do even in the absence of rules which will be notified by early December. To begin with, the law, for the first time, gives all working women, including domestic workers, the right to redress. To extend the umbrella of protection further the law defines a workplace not just as the office but all places a woman visits during the course of her job, including the transport she uses. In Tarun Tejpal case, the elevator in which he allegedly assaulted the victim qualifies as workplace because she was using it to discharge the duties assigned to her during Tehelka’s Think Fest in Goa.
Ministries no better None of the ministry websites have a sexual harassment policy on their official pages. They are required to widely publicise such a policy. Most do not have the complaint committees as per the new law or the Vishakha
guidelines.
The SC umbrella
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What is harassment
Checklist for victims
Penalty corner
Right to privacy
Room for conciliation?
Gender disparity
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The study is replete with shocking revelations from nurses who talk of doctors pulling on their bra straps instead of calling out their names; and of male patients feigning illness so they can get a sponge bath.
Malicious complaints
Law intern accused former judge: On November 27 this year, the Supreme Court constituted a 10-member committee to look into the allegations of sexual harassment by a law intern against a retired Supreme Court judge. The intern, who had recently narrated her victimisation on a
blog, has already testified before another panel the court set up earlier to look into the matter. 
A 30-year-old professional in personnel and industrial relations joined the corporation in 1997. Her husband was working in another city. Some months into the job, she began facing harassment at the hands of a private secretary-cum-personnel officer of her immediate boss. 
In 1997, the apex court first recognised sexual harassment in workplaces and laid down guidelines directing employers to prevent crimes and provide complaint redress mechanisms.