Chief Justice of J&K High Court Gita Mittal, Lawyers Meenakshi Arora and Vrinda Grover, and Disability Rights Activist Nidhi Goyal spoke at ILS Law College Webinar
Chief Justice of J&K High Court Gita Mittal, Lawyers Meenakshi Arora and Vrinda Grover, and Disability Rights Activist Nidhi Goyal spoke at ILS Law College Webinar

Laws against sexual offences should be Gender-Specific: Speakers during Webinar on Gender Equality and the impact of the Vishaka Judgment

J&K HC Chief Justice, Gita Mittal, senior lawyers Meenakshi Arora and Vrinda Grover, and Nidhi Goyal, a disability rights activist spoke at a webinar on "Collaborative Activism in the Sphere of Gender Equality."

Lydia Suzanne Thomas

The Centre for Public Law at ILS Law College, Pune, hosted a webinar on “Collaborative Activism in the Sphere of Gender Equality: Some reflections on Vishaka Mechanism" as part of a webinar series to commemorate Chief Justice YV Chandrachud’s Birth Centenary.

The discussion featured Chief Justice of the Jammu and Kashmir High Court, Gita Mittal, Senior Counsel Meenakshi Arora, Advocate Vrinda Grover and Nidhi Goyal, founder of NGO Rising Flame and disability rights activist. Advocate Dr Devika Singh moderated the event.

A prominent topic discussed during the webinar was the Supreme Court's landmark judgment in the case of Vishaka and Others v. State of Rajasthan (1997).

The Vishaka judgment recognised, for the first time, the right to a safe working place for women and laid down guidelines for the tackling the issue of sexual harassment.

The guidelines, popularly called the Vishaka guidelines, held the field as the governing principles to define, inquire into, and prosecute instances of sexual harassment in a place of work. The judgment formed the basis of the Prevention of Sexual Harassment at the Workplace Act, 2013 (POSH Act).

Each of the speakers discussed a specific aspect of the law after the judgment, and their experiences with the workings of the harassment law on the ground.

The speakers broadly spoke around six themes:

  • the impact of Vishaka,

  • the working of the POSH Act,

  • the #MeToo movement,

  • the invisibilisation of women,

  • issues faced by the disabled, and persons of divergent identities, and the need for a sensitive approach to issues faced by these distinct groups of people, and

  • the necessity of gender-specific rather than gender-neutral laws.

On the impact of Vishaka

The moderator, Dr Devika Singh, began the session with statistics around the number of times Vishaka has been cited in the Supreme Court and the High Court.

She informed that the Vishaka judgment was only cited fifty times less than the momentous “Kesavanada Bharathi”, which was declared at least two decades prior to Vishaka. The name Vishaka is synonymous with efforts against workspace sexual harassment, she stated.

Chief Justice Mittal described Vishaka as a pathbreaking judgment that for the first time weaved international norms and domestic law together. During her travels and speaking engagements outside India, she has witnessed the veneration the ruling has received worldwide, she said.

Senior Advocate Meenakshi Arora, who was one of the lawyers who argued the case, and incidentally assisted with the framing of the guidelines, said that its impact was unprecedented.

She recounted of how little they anticipated that a small paragraph in the Vishaka petition, which otherwise focused on a prayer for a CBI enquiry into a government employee’s gangrape during work hours, would work such changes in law and practice.

The paragraph the Vishaka lawyers had inserted sought for the safety of women in their places of work.

On the deficiencies in the working of the 2013 Act

Chief Justice Mittal, tailored her session around how a uniform, “one size fits all” procedure could not be adopted into sexual harassment inquiries.

Since by its very nature sexual harassment is subjective, it is necessary that each complaint be considered based on the specific facts that constituted it, she advised.

"Uniform procedures do not necessarily result in uniform justice.”
Chief Justice Gita Mittal

She lamented the absence of accountability upon the Internal Complaints Committees (ICC). The Committee’s impartiality was to be effectively conveyed to a complainant, she said so that justice could be done effectively.

For instance, a victim could not be expected to keep her composure or be forthright if the proceedings are conducted in the presence of her perpetrator, the Chief Justice explained.

Speaking from her experiences on how a particular narrative is weaved in every case of sexual harassment, Advocate Vrinda Grover pointed that every such narrative was an exercise of power and patriarchy. Chief Justice Mittal, as well as Nidhi Goyal, echoed this sentiment.

The constitution of the ICC itself was problematic, with no transparency about voting, or decision-making. Often times, the employer himself would chair the Committee, even if he were the perpetrator of the act.

Advocate Grover referred to the recent allegation of sexual misconduct against the Vice-Chancellor of NLU-Assam.

Grover pointed out that under the 2013 Act, it was the Vice-Chancellor (the head) of the NLU himself who is generally expected to constitute the ICC. In this backdrop, Grover questioned the norm of believing in pyramidical power hierarchies and assuming that the person on the top would know best.

It is not enough to resolve a complaint of this nature, it is necessary to understand it, she further said.

The Government must not shirk its responsibilities by saying that sexual harassment is a woman’s issue. It must actively use the powers conferred upon it by the Act to seek reports and monitor complaints of sexual harassment, especially where the proceedings are opaque, she outlined.

Due process should be followed, she emphasized, but with sensitivity.

Nidhi Goyal, of Rising Flame, spoke of how bereft of rights the physically and psycho-socially/intellectually challenged were. There are very few persons with disabilities who are educated, with a still smaller fraction of them employed.

Goyal spoke of how during public consultations about the POSH Act, efforts was made by the drafters to declare the sexual harassment of a disabled person as statutory rape, despite harassment and rape being different altogether. People tend to infantilise persons with disability, she observed.

Because of their lived experiences, people with disabilities internalise ‘blame’ for their disabilities, and even attribute distinct acts such as sexual harassment to their disability, she explained.

On the #MeToo movement

Chief Justice Mittal observed that Twitter seemed to have become a woman’s "police station" for complaints of sexual harassment, explaining further that this reflects on how our workplaces have failed women.

Advocate Grover said that the entire movement had brought to light the fact that most workplaces had failed to set-up ICCs. As to the possibility of reputational damage for the alleged perpetrators, which people attribute to allegations of sexual harassment, she said that empirical data did not back up such a claim.

There is always a risk of suits being used to silence complaints of sexual harassment, Advocate Grover explained, citing the defamation suits filed against her by the late RK Pachauri, the former Chief of TEHRI, for her defence of women who had accused him of sexual harassment.

On the invisibiisation of needs and the necessity of gender- specific rather than gender-neutral laws

The disabled are rarely included in the process of lawmaking, Nidhi Goyal noted. For instance, as a person with a 100% sight impairment, she pointed out that she could not read scanned pdfs sometimes uploaded on government websites.

Chief Justice Gita Mittal shared anecdotes from her experience while working in the Delhi High Court and the Jammu and Kashmir High Court to comment on how the needs of women are often invisible in the workplace.

All of the speakers spoke of the need for laws to be identity/ gender-centric and sensitive, rather than "gender blind."

Advocate Grover opined that the way ahead is not to transform laws against sexual discrimination of sexual violence into gender-neutral laws. Rather, gender specificities and lived experiences have to be understood to frame laws that cater to their specific concerns, she said.

To be "gender-neutral" is to be "gender-blind", which does not protect anyone, she added.

During her address, Chief Justice Mittal also pointed out how discussions around sexual harassment, shattering ‘glass ceilings’ (impediments to opportunity) and discrimination were ‘gendered’, even when spoken of by women of influence.

This serves to prove how pervasive these issues are, and how they are faced by women at all levels, she said.

The session concluded with a vote of thanks.

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