The Sexual Harassment Bill undermines the innovative spirit of Vishaka- Naina Kapur Lawyer and Equality Consultant

The Sexual Harassment Bill undermines the innovative spirit of Vishaka- Naina Kapur Lawyer and Equality Consultant

Bar & Bench

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2012 was passed by the Rajya Sabha on February 26, 2013. In this interview with Bar & Bench,  Lawyer and Equality Activist Naina Kapur shares her thoughts on the Bill, and the reasons why she is disappointed with the way the legislation has come about.  

Passed 16 years after the landmark Vishaka judgment, the new Bill seeks to provide for prohibition, prevention and redress against sexual harassment of women at the workplace. It defines sexual harassment to include any one or more of the following unwelcome acts or behaviours viz., physical contact and advances; a demand or request for sexual favours; making sexually coloured remarks; showing pornography;  any other unwelcome physical, verbal or non-verbal conduct of sexual nature as well as hostile workplace environment. During the debate over the Bill in the Rajya Sabha, the Minister of State for Women and Child Development, Krishna Tirath assured the House that rules would be framed to ensure that the provisions of the Bill are properly implemented.

However, Naina Kapur who was instrumental in framing the Vishaka guidelines, is quick to point out that the new Bill was passed by the Lok Sabha without discussion (amidst a din over coal block allocations issue at the time). Before the Rajya Sabha it was presented by  Minister Tirath as a Bill whose main objective was “to prevent sexual harassment (of women) and to make them economically empowered so that they can do their work properly”.

Constitutional equality, which was the legal backbone of the Vishaka Judgement, finds no mention in the “debate” which then followed. Yet as Naina points out, almost three-fourths of the Vishaka judgment is devoted to understanding sexual harassment in context of women’s fundamental constitutional and human rights. “Vishaka created a fundamental shfit in perception around sexual harassment as an equality issue. The overt absence of that perception in the so-called debate exposes an abysmal lack of regard, homework and informed understanding on the issue by the legislature.  Instead we hear the same old ‘women are worshipped’, ‘women are vulnerable’, and other moral rhetoric which excludes any notion of women as citizens with rights.”

A specialist in workplace discrimination and sexual harassment policies and practices, Naina shares how she was always opposed to legislation especially when Vishaka had already created an innovative and “legally binding” precedent. According to her if it has taken sixteen years since Vishaka to frame a Government version of the Vishaka law, “the expected outcome should be nothing short of exceptional and innovative – one that would enhance the precedent setting shift Vishaka created for women’s Constitutional Equality. Otherwise why undermine what is already exceptional and legally binding.”

Despite her reservations, when the Ministry of Women & Child first considered legislation, drawing on a problematic draft by the National Commission for Women, Naina wrote regularly with her comments but never received a response. Subsequently, she as well as many organizations and individuals participated in consultations to express their views and criticism of the draft bill where members of the Parliamentary Select Committee were also present. Says Naina, “The final outcome takes on a life of its own to the exclusion of those whom it impacts most – Indian women”. In her view, drafting legislation should be an “inclusive process” from beginning to end. “It is important to draw on years of accumulated skill and expertise amongst women, experts, activists and others that have evolved since the Vishaka judgment and not abandon it when it matters most – at the time of crafting and drafting.” The absence of an informed, inclusive process in this way has led to an outcome which Naina describes as  “carelessly drafted, prejudicial and in many respects uninformed”.

Take for instance, the Bill’s reference to “hostile workplace sexual harassment”. As the most pervasive form of sexual harassment, Naina describes the definition as “inaccurate and incomplete.” Rather than make it “environment” specific as is understood universally, the Bill has made it complainant specific.

As for the complainant, the Bill refers to an “aggrieved woman” which includes only two categories – a woman in relation to either a workplace or ‘a dwelling place or a house’. It excludes “students” in educational institutions – an exclusion which was brought before the Justice Verma Committee who recommended they be brought into the ambit of the legislation.

“Conciliation” as an option to “settle” a sexual harassment complaint is another area of concern in terms of the new law. “Nowhere is conciliation defined” says Naina. “It illustrates the random and uninformed understanding of sexual harassment and women’s experience of it.  In the Indian context the pressure to “settle” is a little like persuading a woman to “adjust” to domestic violence – the message being, its just the way things are. While one can envisage a situation where a woman encounters a one off sexist expletive and wants the offender to shut up or apologise on the spot (the option always being hers), this is at most an informal handling of a situation. Conciliation suggests more than that. One which calls for a 3rd party intervention. In that case, who is this “conciliator”? What skills would they possess? On this, the Bill is silent.”

As for the definition of “workplace” the categorisation appears to be haphazard. While it extends to public and ‘private sector organisation’, it goes on to insert ‘hospitals and nursing homes’, ‘sports institutes’ and so on. [Section 2(o)]. Naina views the section as one which is “struggling to create a random yet incomplete laundry list of locations and circumstances because you don’t know any better.”

Talking on prioritising the prevention of sexual harassment, Naina believes, “Human rights are about systemic change. That is why we sought to prioritise “prevention” as the primary goal of Vishaka. If you look through the lense of equality, unlike the criminal justice lens, women are not required to go to the police station to report sexual harassment. Rather, Vishaka shifted the onus onto institutions making them responsible for preventive practices. We keep talking about changing mindsets. Mindsets don’t change with a legal definition – they change when you make your systems gender informed. That is the goal of prevention.”

The Bill makes it mandatory for every employer to constitute an ‘Internal Complaints Committee’. An aggrieved woman can approach the Internal Complaints Committee (at workplaces) or the Local Complaints Committee (at the local level) in a case of sexual harassment and file a complaint. As per Section 11, the Committee is required to complete the enquiry into the complaint within 90 days.

Section 26 of the Bill makes the employer liable to the extent of Rs. 50, 000 for failure to constitute an Internal Complaints Committee or to take appropriate action.

While discussing composition of the Internal Complaint Committee, Naina explains how, “Vishaka created a novel mechanism for redressal of workplace sexual harassment. It included a committee with 50% women, a woman chairperson and the presence of a 3rd party/ NGO with expertise in sexual harassment. To me the third party role has always been a wonderful innovation, which we brought through Vishaka. In my years of acting on Committees, the need to possess both knowledge and skill on this issue is essential for effective and compliant functioning of these Committee and to their larger role.”

The current Bill calls for a committee with 50% of the posts to be held by women and a woman chairperson as provided in Vishaka. However, it also provides for two persons to be from amongst the employees preferably ‘committed to the cause of women’ and the external third party person ‘committed to the cause of women’ or familiar with issues of sexual harassment. “Making the criteria for a third party so vague or the need for expertise optional simply dilutes the relevance of skill and knowledge in this area of rights”, says Naina.

“This implies you could be any random person committed to the cause of women. To dilute the skilled nature of this issue is potentially disastrous. It’s like telling a software engineer to do an electrical engineer’s job”, adds Naina.

The most controversial provision of the Bill provides for punishment for false or malicious complaint or false evidence (Section 14).

Naina says, “This whole issue of punishing “false charges” in the Bill is most disturbing. Such provisions areonly peculiar to  gender specific  legislations relating to women and violence. In no other area of law, do such penalty clauses exist as a matter of practice. It’s an assumption and a provision which have no legal justification. Investigations (and this is true of any law) are designed to determine whether a harm occurred or not. That’s it. To premise a Bill on the assumption that women are potential liars about their human rights abuses smacks of stereotyping women and is discriminatory.” The section also goes on to state that – “mere inability to substantiate a complaint or provide adequate proof “need not” attract action against the complainant under this section”. “What does “need not” mean?” asks Naina. “Does it imply that if a complaint doesn’t succeed it “ought not to but still might” attract action for false charges? The absence of user friendly, clear and accessible provisions will invariably invite gender stereotyping in such cases. In all consultations this retrograde provision was rejected outright. To foist it into legislation can only be perceived as an attempt to discourage women from making complaints of sexual harassment. My hope is that a Public Interest Litigation will emerge to challenge this provision on grounds it violates women’s constitutional equality.”

“In the 16 years that have passed, so many developments and improvements have taken place in international guidelines and practices on workplace sexual harassment yet none of that is reflected here. And even then, what we did have in the spirit of Vishaka threatens to be undermined. If Government really thought there was an urgent need for upholding women’s human rights and constitutional equality, it would have made every effort to enhanceVishaka and not dilute it. Then again, it never did anything more than the minimum to implement Vishaka so what could one expect”, adds Naina.

“When you’ve waited 16 years for a piece of legislation, there is no excuse for it not to be a global model for excellence in systemically tackling workplace sexual harassment. The absence of any such an aspiration is reflected in what we finally got – a mediocre outcome”.

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