Sexual Harassment: Extending The Penumbra Of Thought

THEME: Mediation and Women’s Rights

Sub-theme – Exploring the Ethical Conundrum and feasibility of the process in Sexual Harassment claims

This article was authored by Shubhankar Tiwari and Laksh Kawatra from National Law University, Delhi and West Bengal National University of Judicial Sciences, Kolkata.

ABSTRACT

The basic purpose of this paper is to evaluate the concept of Sexual Harassment with respect to the Indian scenario. The landmarks cases of Bhanwari Devi, Tukaram v. State of Maharashtra and the Vishakha guidelines regarding sexual harassment at workplace have been closely observed to comprehend the existing legal framework in our country regarding Sexual harassment. The structure of the paper goes as such: First step is to examine the concepts by trying to remove the subjectivity element from its definition. That has been done by laying down a list though not exhaustive, of the acts that amount to sexual harassment.

Pointing out the chinks in the legal armour of the country with respect to dealing the cases of sexual harassment is the second step. The cases discussed have been substantial in achieving this object. The third step is to introduce the concept of mediation and its pros and cons. The fourth step adopted for the purposes of this paper is to draw a comparative analysis between mediation and litigation with respect to sexual harassment.

The inference drawn after following the aforementioned steps is the final objective of this paper. However, the further roadblocks and challenges post the achievement of the proposed objectives have also been mentioned for the proposed system to be made more full proof.

In today’s era there are so many research centers, journals, blogs, websites dedicated to discussions on violence against women and the instances of Sexual Harassment in our nation and all across the world. In international organizations like UNO and regional organizations like EU, sovereign states and provincial governments have frameworks and institutions to make policies regarding the rights, protection, freedom and equality of women. There are international and local non-government organizations which access private and public funds with the mandate to construct safety nets for women. Yet violence against women is a universal phenomenon.

INTRODUCTION

Before delving into the intricacies of the key elements of the topic, it is essential to have a basic idea of the concepts being dealt and the paradigm in which they’re set. For the purpose of this paper, the paradigm has been limited to India and all the suggested changes have been given, keeping in mind its existing legal framework and legislation procedures. The key objective is to reach the best possible solution without exceeding the limits that the basic structure of this country’s Constitution has set.

In the present time, when the tragic instances of sexual harassment have flooded every nook and cranny of the society, it has become necessary for us to arise, awake and act. However, before taking any of the aforementioned three steps, it’s necessary to have a clear cut idea about ‘sexual harassment’ or in simple words, ‘Learning the ABCs of Sexual Harassment’.

KEY ELEMENTS

Uninvited/unwelcome sexual advances of one person towards another[1]is the general way to define ‘sexual harassment’. An offensive behavior of sexual nature is what’s known as Sexual Harassment in common language. It’s a continuum of violence ranging from subtle unwelcome advances of sexual nature to outright violence in form of rape.[2] However, violence is not necessary for constituting it. The very concept is so broad that it is hard to give it any strict boundaries. On the face it, it amounts to be an act that has been done in violation of the accorded consent. However, its penumbra extends much beyond that. Elements of vitiated consent i.e. consent resulting out of coercion, misinformation, fraud, undue influence have a lot to do when it comes to an act as grave as harassment.

There can’t be an exhaustive list of the actions that amount to sexual harassment. However, on a basic pedestal, verbal acts like graphic comments on an individual’s body, unwelcome sexual advances, unwanted enquiries about someone’s sex life, requests for sex in return of job, promotion; non- verbal acts like leering, publically displaying sexually suggestive objects; physical acts like strip search, unwelcome touch, patting, fondling etc. are a few of the acts that amount to sexual harassment.[3]

EXISTING PATRIARCHY AND MISOGYNY

Violence against women is framed within n number of discourses. To name a few they can be: human rights, gender justice, sexual assault, woman abuse, rape, marital rape and what not. The haunting past of this nation bears testimony to the fact that even before the day they’re born, females are placed at the receiving end of the atrocious conduct of this heavily patriarchal society.

The main question that arises in one’s mind is: What’s the main reason behind a particular gender being at the receiving end of such instances? The answer to this question lies in the very patriarchal structure of the Indian society. Whether it is the violence taking place on streets or the ‘rape jokes’ being forwarded in every second cell phone in today’s ‘meme culture[4]’ or the way in which female politicians often get subjected to sexist commentary in the guise of criticizing the government, all of these clearly indicate how deeply misogyny permeates the political and cultural landscape in India.

A person in an authoritative position may use his/her power to utilize, advance, distribute work or reject so as to convince a laborer to engage in sexual activity. Lewd behavior additionally happens between collaborators. In such cases, the harasser doesn’t really require the force related with proficient situation: rather, the cultural standards[5] which show women to be oppressed, adequately enable men who explicitly harass ladies. Since women are educated to feel disgraced and accept the fact that they can’t stand up, the capacity to explicitly hassle is certainly acknowledged.

EXISTING FRAMEWORK TO COMBAT THE PROBLEM

The two landmark cases in this arena are ‘Bhanwari Devi’ and the ‘Vishakha Guidelines for Sexual Harassment at Workplace’. However, the fight for setting up a holistic legal framework started way back in 1970s after the gruesome rape of Mathura, a 16 year old village girl in Maharashtra. In the Mathura case though the incident took place in 1972, it came into public light only in 1979. This wasn’t the saddest part of the case. The conviction of the accused policemen given by the Bombay High Court being removed was! The grounds were that the appellant was ‘habituated to sex’[6]. However, this wasn’t the only ground involved. The grounds that the complainant at the time the incident at issue took place did not raise any alarm for help and the absence of any signs of hurt caused were ones that took away the case in favour of the accused.[7]

Though the case is a clear cut evidence of the lack of a proper system in our country to report such incidents, the analysis of ‘consent’ and ‘submission being a part of the consent’ was substantial in laying down the foundation of sexual harassment laws in our country. The Mathura case has time and again been criticized over the denial of human rights and the abrogation of the spirit of the Indian Constitution and the Indian Penal Code it caused. However, the fact that it brought to light the lack of knowledge amongst the common public regarding the legal aid available to them, the effect of social-status in such instances, the fear complex that haunts the people coming from the lower rungs of the social ladder.

A question was raised post this case by several academicians in their letter to the Chief Justice to India, “Must the illiterate, labouring, politically mute Mathuras of India be condemned to their pre-constitutional Indian fate? Nothing short of protection of human rights and constitutionalism is at stake”[8] The criticisms received by the case led to the inclusion of the concepts of ‘power relationships’ and ‘gender equality’ in the rape laws in India by 1983.[9] The shift of the burden of proof from the complainant to the accused and the ‘custodial rape concept’ were a few of the striking developments that took place post Mathura case.

However, around 10 years after these changes, the circumstance had not changed altogether. In 1992, Bhanwari Devi, a sathin (town level specialist) in the Women’s Development Program in Rajasthan, was assaulted by five upper-caste men of her village for having the audacity to prevent them from a child marriage.[10] As a social activist, Bhanwari knew about the procedural prerequisites to report an assault, and combat uninterested medicinal faculty. It was just two and a half days post the assault that the required medicinal assessment took place. The law took its own drowsy course. A chargesheet was recorded a year later, and in 1995, a sessions court acquitted the men on the ground that “the upper case men couldn’t have raped a dalit woman”[11]. The bench likewise could hardly imagine how an uncle and nephew could assault the same woman.[12] The exemption of the family and rank framework in terms o caste and class stayed intact.

The case is still in contention in the Supreme Court and Bhanwari is yet to get her due justice. However, the battle that she has fought has resulted in Bhanwari Devi becoming a pioneer of the feminist movement in India. She has become an inspiration for millions, as the entire nation has been testimony to her struggle and fight. It has rightly been said, “Not all battles are fought for victories. Some battles are fought to show that someone was there on the battlefield”. And this is what Bhanwari Devi did. And the wave that resulted post her case led the Court giving ‘Vishakha Guidelines Regarding Sexual Harassment at Workplace’ in 1997. Vishakha was the name of a group formed by a few female social activists of Rajasthan, which had filed a PIL in the Supreme Court post Bhanwari Devi case.

Before these guidelines, Sec 354 of the IPC which was regarding ‘outraging the modesty of women’ was the sole resort for women experiencing sexual harassment. In the Vishakha guidelines it was held that Sexual Harassment at workplace violated Article 14 i.e. Right to Equality and Equal Protection by law and Article 19 that also guarantees the Right to practice any trade and profession of one’s choice. The Right to Life under Article 21 was also violated as the case reiterated that people had the Right to live with dignity even at the workplace.

The cases presented in the paper relate to rape laws and the point of concern before us is much broader, as we address the issue of sexual harassment. However, the relevance of these cases is to point out the chinks in the armour of the legal framework of our country. The concept of rape laws dates back to the age of Macaulay and sexual harassment on the other hand is a pretty niche concept. When a law that has already been a part of the Indian Penal Code for nearly a century and a half, can be massacred at the hands of the Judiciary time and again, Sexual Harassment automatically becomes vulnerable to such misinterpretations. The main reason behind this is a lack of legislations and available jurisprudence over the issue.

The Vishakha case laid a few basic guidelines:[13]

Physical contact and advances
A demand or request for sexual favours
Sexually coloured remarks
Showing pornography
Any other unwelcome physical, verbal or non-verbal conduct of sexual nature;

Were the key features of an act of sexual harassment at workplace. While these more or less cover the facets of sexual harassment as discussed in the preceding chapter however the element of vitiated consent hasn’t properly been addressed.

‘Prohibition, prevention and Redress’ [14]was the motto behind the Vishakha guidelines and the inception of all the workplaces and other institutions having an Internal Complaints Committee was also done in this case itself.

Speaking of the current scenario, the Vishakha guidelines have been replaced by Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. The act was in order to broaden the scope of the Vishkha case and the concept of ‘aggrieved woman’ which includes women irrespective of their age, work status or employment status.

The Act specifies five circumstances that amount to sexual harassment. These are[15]:

Implied or explicit promise of preferential treatment in her employment Implied or explicit threat of detrimental treatment.
Implied or explicit threat about her present or future employment status.
Interference with her work or creating an offensive or hostile work environment.
Humiliating treatment likely to affect her health or safety.

Moreover, the publication of an entire handbook on what all would amount to Sexual Harassment and that even innuendoes of sexual nature are covered under the ambit of Sexual Harassment are the key evidences that help us in deducing that the act has been a major step in direction of establishing a strong framework to deal with the instances of Sexual Harassment. And insertion of words like ‘one sided’, ‘demeaning’ etc. have also broadened the scope of harassment.

However, it is still debated whether the existing system is the best possible way to deal with the exponentially rising number of cases of sexual harassment after the definition of Sexual harassment being made so specific and yet broad that even asking inappropriate questions or making remarks about someone’s sex life and unwelcome sexual invitations with sexual overtones, commonly known as flirting may also amount to sexual harassment according to the Act.

Since the launch of #MeToo, there’s been a great deal of consideration on issues of sexual inappropriate behaviour. Sadly, this has not added up to a lot of progress as far as decrease in inappropriate behavior and upgrades in conviction rates is concerned. This is to some degree because of the social and political discord in regards to the veracity of allegations and what comprises decency of fair treatment when cases emerge.

In the nationally representative sample of the approximately 2,000 Americans whom we surveyed in early 2019, 81% of women and 43% of men said that they had experienced sexual harassment or assault at least once in their lives. Eighteen percent of women and 16% of men reported recent sexual harassment or assault in the last six months, which is not a significant change from 2018.[16]

And therefore the next chapter aims to evaluate whether mediation might be a plausible solution to address the existing problem of rapid outburst of Sexual harassment claims.

MEDIATION: A PLAUSIBLE SOLUTION FOR PREVAILING ETHICAL CONUNDRUM?

Alternate Dispute Resolution method of resolving the disputes is a relatively new trend in India. The mediation process in India is not a new method and dates back to the Vedic period.[17] Mediation benefits both, the court and the parties involved. Court on one hand gets lesser burden of cases and the parties get a quicker and smoother way to resolve their legal hassles.

The difference between litigation and mediation is that, while in litigation there is always a winning party and a losing party, in mediation there isn’t a clear cut distinction between a winner and a loser. The dispute doesn’t involve any burden of proof or to deny any particular allegation[18], but the pre existing relationships between parties and their financial situations and other factors are evaluated. And putting those factors in conjunction with each other during the negotiation process that is done by a mediator, the outcome is yielded[19]. And the chances of that outcome being plausible are very likely as they involve the opinions of the parties to the dispute.

The alternate dispute resolution India consist of following types of ADR in India – arbitration, conciliation, negotiation and mediation. Mediation in India is the most popular method among all the three processes. The words ‘mediation’ and ‘conciliation’ are used synonymously.[20]

In Mediation in India, the mediator works together with parties to facilitate the dispute resolution mediation process and does not adjudicate a dispute by imposing a decision upon the parties. A mediator’s role is both facilitative and evaluative[21]. A mediator facilitates when he manages the interaction between the parties, encourages and promotes communication between them and manages interruptions and outbursts by them and motivates them to arrive at an amicable settlement.

Process of Mediation in India is completely confidential[22] as any information furnished by any party and a document prepared or submitted is inadmissible and sealed. Any admission made during mediation can’t be used in any other court case and any information provided to the mediator can’t be disclosed to the other party unless the other party specifically permits the mediator to do so.[23] The mediator cannot be called as a witness to testify in any court case and cannot disclose any information related to the proceedings.[24]

The highlights of the process of mediation have already been mentioned in the aforementioned paragraphs. The rising number of cases and the existing system’s failure in curbing them has also been duly cited with the available records and statistics. Now weighing both the available methods from a reasonable person’s perspective, a comparative analysis is what’s necessary to reach any feasible conclusion.

Firstly, the mediation process takes far lesser time than the litigation procedure. In India, we have the system of appellate jurisdiction and therefore, matters take a long time to get resolved via litigation. It has rightly been said that, “Justice delayed is justice denied”. Even the Bhanwari Devi case is still pending before the court even after so many debates that have taken place over it for almost two decades.

Secondly, mediation is less costly when compared to the litigation process. The costs of mediation have been explicitly made reasonable and only include fee and expenses of the mediator or the witness called after taking the consent of the parties to the concerned dispute. However, no such provision has been made regarding the procedure of litigation.

Thirdly, litigation follows the principle of res judicata and aims to serve the purpose justice in a holistic manner using that principle. But when it comes to addressing the issues like sexual harassment, the opinion of the parties involved must be given more significance rather than the existing precedents. The simple reason being the subjectivity and sui generic nature of each and every case. Especially, after the definition of sexual harassment laid down in the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

CHALLENGES THAT NEED TO BE ADDRESSED

The major challenge that must be addressed before resorting to ADR methods to resolve the incidents of sexual harassment is serving the ends of social justice. It must be accepted that before adopting such advanced methods awareness regarding the same must be spread among every strata of the Indian society. A large section of the Indian society is still unaware about the latest developments that have taken place in the existing legal framework. It is difficult to say that they would even consider mediation as a means to address their issue, especially in case of sexual harassment, where the survivors hardly even come up to procure justice.

It has rightly been said that, “Justice must not only be done, but also seen to be done”. Firstly, the common public must be shown that mediation is an effective way of dispute resolution because unlike us, they don’t have access to reputed journals and commentaries. They don’t have orientation sessions regarding the pros and cons of such methods.

Another point is that sexual harassment is a criminal act and not every incident of sexual harassment can be subject to conciliation as compoundability withers away as criminality creeps in.

The aforementioned challenges are a few roadblocks in an otherwise efficient system to deal with the conundrum of the increasing sexual harassment claims. Adjudicating the matters of sexual harassment has several parts to it. And mediation can act as a filter mechanism to judge the veracity of the sexual harassment claims. The matter can then be resorted to the courts if the mediation with respect to that particular case fails.

[1] Sexual Harassment, Oxford Dictionary, 3^rd edn. OUP (2011).

[2] MIRIAM ALTMAN AND PATRICIA, Combatting Sexual Harassment :Women and Religion (25^th edition,1995).

[3] Id.

[4] HOWELL, L ,The insidious effects of trolling women on TV and radio in the UK (2013)

[5] Supra Note 1

[6] Tukaram v. State of Maharashtra, 1979 AIR SC 185

[7] Id.

[8] 4, BAXI U, LOTIKA SARKAR, RAGHUNATH KELKAR AND VASUDHA DHAGAMWAR, AN OPEN LETTER TO THE CHIEF JUSTICE OF INDIA, SCC Journal (1979).

[9] Supra Note 6.

[10]Smt. Bhanwari Devi v. The State Of Rajasthan (1) WLC 42 (1997)

[11] Id.

[12] Id.