Fears and Furies of Sexual Harassment: Time to Go Beyond the Vishaka Guidelines

December 29, 2013

by Maya John

The high profile case of sexual harassment reported from the workplace of a reputed media house initially triggered much discussion not only on this grave and rampant problem but particularly so on the issue of its redressal within the workplace. Before this case and the resulting discussions completely fade from public memory one found it necessary to draw the attention of the wider movement towards some of the pertinent issues left out in the discussion. The case has proved to be particularly significant because it exposes the compromised way in which managements handle complaints of sexual harassment that implicate members of the management itself. Moments like these compel us to seriously ponder on the following question: considering that sexual harassment is intrinsically linked to the working conditions prevalent in the workplace and the power dynamics that govern labour–management relations, is it prudent to sublet the responsibility of providing working women justice against such sexual discrimination to committees constituted by managements? It is certainly not, for such procedures of redressal amount to privatization of the state’s juridical role; thus, resulting in the growing tendency to reduce the struggle on gender-cum-labour rights to a private affair between two private parties. It is time that we engage closely with the larger implications of the Vishaka judgment and the newly enacted Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act, 2013 before continuing to uncritically promote the internal complaints committee (ICC) system in its given form.

The response of the management of the concerned media house has drawn much flack. The discussion within many women’s groups and feminist circles has revolved around the issue of how the management of the media house failed to constitute an ICC to investigate the complaint, i.e. in accordance with the Vishaka guidelines or the aforementioned Act. Indeed, there is a predominant trend within the larger women’s movement to promote the formation of internal or intra organisation anti-sexual harassment committees as an essential step towards curbing sexual harassment in the workplace. In fact, the trend has increasingly been that of promoting ICCs to the extent that initiation of criminal proceedings against the accused is injudiciously assigned to a vague and ill-defined understanding of a victim’s ‘agency’. In the process, complainants of sexual harassment and various forms of sexual violence have been reduced to individuals whose experience of victimhood is taken as the invariable determinant of the mechanism of redressal to be pursued. Unfortunately, such an understanding instigates individualization of an experience that fails to sufficiently take into account workplace dynamics and how they can influence the decision of a complainant to settle for a particular form of investigation and redressal. Moreover, in the quagmire of discussions on the relevance of the Act and the resulting valorisation of the internal committee system, many activists and feminists have failed to take into account the fact that when an employer himself is accused of sexual harassment, an ICC cannot suffice. Ironically, as per section 6 (1) of the 2013 Act in cases where an employer is the accused, the district administration must forward the complaint to a Local Complaints Committee constituted by it [1]. In many ways then, our defensive upholding of the internal committee system has made us lose sight of the need for state intervention in such matters, the grave limitations of the 2013 Act as well as the need to evolve more women and employee-friendly mechanisms of redressing workplace-related complaints like sexual harassment.

According to the 2013 Act, and earlier according to the Vishaka judgement of the Supreme Court, all workplaces should constitute a mechanism of internal enquiry for complaints of sexual harassment which is based on a quasi-tripartite system of investigation involving representatives of employers/management, employees and an ‘outsider’ or an NGO as the third party. As argued by the broader women’s movement, the purpose behind constituting ICCs lies in the need to create adequate space for civil proceedings wherein sexual harassment is seen as a violation of human rights rather than a criminal offence. As we know, despite recent amendments to the Code of Criminal Procedure (CrPC) and a gradual change in the legal fraternity’s interpretation of legal statutes – which together have paved the way for less onerous and stringent evidentiary mechanisms – criminal proceedings still tend to put the complainant on trial instead of the culprit; making the entire process extremely tedious for the former.

The proposed logic then behind the Vishaka guidelines and the 2013 Act is that ‘strong probability’ is sufficient to establish a claim of sexual harassment and to warrant punishment of the accused by an institution/organisation. It is also argued by certain women’s groups and activists that the internal committee system institutionalized in Vishaka guidelines and the 2013 Act allows complainants quicker access to redress due to its redefinition of sexual harassment in ways which remove sexual harassment from the ambit of graver sexual offences like rape that involve criminal procedures. Furthermore, by maintaining a distinction from criminal proceedings and concomitant evidentiary procedures, it was hoped that sexual harassment would be arbitrated on by engaging with the impact of the harassment on the complainant rather than the intent of the accused. So far so good, for such proceedings of internal complaints committees seemingly come across as an ‘ideal’ alternative to the criminal procedure or police-led investigation, which has by and large proved to be biased against women.

However, the intrinsic problem with the ICC system becomes apparent precisely when we begin to consider the larger socio-economic context of its being and becoming. Let us not forget that this piece of legislation has been debated, deliberated upon and put into force at a time when the Indian state is increasingly withdrawing itself from its role of regulating employer–employee relations and work conditions. An epitome of such withdrawal is the relaxation of the pro-labour content of labour laws, which has created the space for immensely insecure work contracts and work ambience. Due to persistent pressure from industry and corporate-friendly media, the Indian state has obliged industry by turning a blind eye to the rampant violation of labour rights and also by releasing several executive orders under the aegis of state governments that reduce the stringency with which pro-labour measures within labour laws should be enforced by local authorities. From large private establishments like powerful media houses, hospital chains, educational hubs, etc. to all kinds of industrial and agrarian establishments, the state has hardly been intervening to regulate work relations and working conditions. Not surprisingly, the relegation of investigation and adjudication of sexual harassment to the realm of the private or to intra institutional players fits well with this larger scheme of deregulation.

Such deregulation, or basically, the withdrawal of the state as a party in proceedings has pushed the issue back into the realm of the private; therefore, projecting this malaise as an individuated problem between two private parties who share a workplace. The fallout of this entire process has been twofold. On the one hand, it has facilitated enhancement of the authority of employers as adjudicators in the realm of the workplace by devolving onto the employer the entire responsibility of constituting an ICC, nominating its members and finally implementing the ICC’s recommendations. As a consequence, in matters such as these the employer has emerged as a quasi-state in the realm of workplace relations. On the other hand, the committee system has facilitated the bifurcation of gender-related concerns from labour issues, and the concomitant development of economism within trade union politics. This entire process has been fuelled – among many crucial factors – by the law. Taken together, several landmark labour laws, the Vishaka ordinance and the recent legislation on sexual harassment have firmly distanced unions or employee associations, which are otherwise crucial for asserting the rights of working women in the workplace, from raising a dispute in the workplace on the issue of sexual harassment. For a long time now, laws such as the Industrial Disputes Act, 1947; the Industrial Employment (Standing Orders) Act, 1946; the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971; etc. have created only a very narrow scope for unions to raise the issue of sexual harassment within the workplace, i.e. through the painstaking process of establishing a direct connection between employment discrimination and sexual harassment. In this context, the introduction of a separate committee system has acted as the last nail in the coffin – a point to which I will return shortly.

Expectedly, the overall shift towards deregulation and non-intervention has been most keenly felt by those trapped in lower segment jobs and those who constitute the more vulnerable sections of the working population. That the average woman worker and employee constitute this more vulnerable section is a well-established fact. This is precisely why rampant sexual harassment and its concealment is a rather general picture across workplaces. Concealment of sexual harassment is particularly effortless since the majority of workplaces, i.e. factories, construction sites, offices, hospitals, educational institutions, farmlands, etc. usually have no redressal mechanism in place through which complaints of sexual harassment can be taken up and resolved in the best interest of women employees. Couple this with the lack of unionization within most of the industrial and agrarian workforce and we have a recipe for a disaster. Indeed, when sexual harassment complaints surface, especially within a non-unionized workforce, they are easily hushed up. Only in some cases are committees for investigation hurriedly created overnight in an ad hoc fashion. In such cases, representatives from the management outnumber those of employees and no transparent process of electing representatives to enquiry committees is pursued. This is hardly surprising, considering how, both, the government and private employers across the board have increasingly created hostile workplaces that are intolerant of dialogue, discussion and, as a consequence, stubbornly resistant to instituting formal redressal mechanisms that address multifarious concerns of their employees. Clamp down on unionization and employee associations across workplaces is the best indication of this resistance on the part of employers.

In such a scenario, if internal committees are formed, they are heavily influenced by employers who are simply looking for quick fix solutions or a cover-up. Such calculations of employers find resonance in the 2013 Act. For instance, section 10 (1) of the Act talks of conciliation before initiation of an ICC enquiry. Furthermore, section 4 (2) of the Act gives unilateral power to employers in the nomination of ICC members. It in fact ensures that nomination carries forward given workplace hierarchies and management authority, i.e. in terms of the prescribed structure of an ICC. For example, the employer can nominate to the ICC one senior level official as presiding officer, two employees and a third party. Of course, such nomination and ICC formation excludes trade union representatives.

Clearly, non-sexual dynamics of workplaces such as the growing contractualisation of work contracts, of which predominant forms are the decline of permanent jobs and introduction of a compulsory period of internship/apprenticeship; steady increase in work hours; enhancement of workloads and introduction of the piece-rate system of remuneration; etc. are creating fertile ground for overexploitation of the more vulnerable sections of the working population. In other words, insecure work regimes breed and institutionalize sexism and a sexist work culture that ultimately preys on working women. In this light, can employers with their anti-labour stance be entitled to arbitrate on matters of sexual harassment? Certainly not, for if managements or institutions are unwilling to protect the interests of labour in all other matters, they can hardly be expected to or given the responsibility of imparting justice to those for whom they have directly and indirectly created conditions of sexual harassment.

While the case of sexual harassment reported from the media house is a good illustration of this fact, it is worth taking note of examples that easily skip notice because of the nature of the work contract involved. Interestingly, despite the existence of ICCs and appended gender sensitizing committees in a prominent place of work like Delhi University (DU), many cases of sexual harassment do not get reported. One is not referring to DU students, teachers or permanently employed non-teaching staff (who often hesitate from filing complaints with existing ICCs), but to contractual women staffers and workers tied to the institution in various ways, i.e. as cleaners, construction workers, security guards, etc. Despite the University/affiliated college being the principal employer of these women workers, there are no efforts made by the University to enforce terms and conditions of employment that are legally stipulated by various labour laws like the Building and other Construction Workers (Regulation of Employment Conditions of Service) Act, 1996; the Equal Remuneration Act, 1976; etc. Burdened and intimidated by highly exploitative terms and conditions of employment, and resigned to the nexus between the University/college and contractors, this large body of contractual women workers is in no position to seek justice from ‘duly’ constituted college ICCs against sexual harassment that they face within their workplace. This is especially so because they are non-unionized. With DU and hired contractors refusing to recognize the labour rights of contract women workers, and with the lack of unionization within this workforce, there is little or no scope that their sexual harassment will be separately recognized, reported and arbitrated upon. Perhaps, the lack of any communication and interaction between existing ICCs and contractual staff in colleges is an expression of a silent submission of the limitations of such committees.

Hence, the dynamics of the work contract and working conditions have to a large extent determined the scope/outreach of existing ICCs – a fact which brings us back to two important questions; namely, whether gender-related rights can exist in a vacuum or independently of labour rights in the workplace, and whether it is possible to envisage a different system of committees to address the issue of sexual harassment in the workplace without bifurcating gender and labour issues that confront a workforce. Taking the first question, it is worth noting that the possibility of sexual harassment and the act itself is closely interlinked to the nature of work conditions and power hierarchy within the workplace. A woman worker or employee is never sexually harassed simply because she is a woman. She is subjected to such violation because she is in a position of subservience vis-à-vis her perpetrator, or because she is compelled to perform/work in a vulnerable condition which is nurtured by the very nature of her job contract.

Considering this essential fact, sexual harassment constitutes a violation of not just gender rights but also labour rights, which means that it is an issue on which trade unions and employee associations must take a stand and adjudicate. Unfortunately, it is becoming more and more evident with time that the scope for unions and employee associations to do so is steadily decreasing due to the bifurcation created between labour and gender issues by the law. As discussed earlier with reference to certain kinds of laws, the existing mechanism of anti-sexual harassment committees is actually contributing to the growing bifurcation of otherwise interrelated issues/concerns. Like it or not, the gender–labour bifurcation is somewhere erasing rather than establishing/enforcing the fact that gender discrimination is embedded within labour relations. It does so by relegating (what is identified as purely) gender-related concerns to a separate arena of adjudication rather than perceiving such concerns as a legitimate trade union issue which requires intervention of the workforce’s collective. Unions have, as a consequence, increasingly come to restrict their mobilization and struggles to strictly ‘economic’ questions while being compelled to clear the way for other adjudicating platforms when it comes to issues like sexual harassment of a constituency they are supposed to represent. Indeed, with the coming into existence of complaints committees constituted and dominated by employers, there emerges a great possibility of such committees eliciting opposition from the larger body of workers/employees [2].

The dangers of the bifurcation of gender and labour issues and the resulting economism in trade union politics are evident when we consider the fact that violation of gender and labour rights frequently play themselves out between co-workers. Given the existence of a tangible workplace-related hierarchy, male co-workers exploit women colleagues because they happen to find them in certain kinds of vulnerable circumstances. Importantly, cases involving co-workers indicate how the constitution of a separate arena for adjudication of sexual harassment through the mechanism of ICCs cannot substitute the more important task of making issues of women workers/employees a key agenda of union mobilization – a process which compels union members to connect the need for gender sensitivity with the collective interest of the entire workforce. In fact, the prescribed ICC system reduces possibilities of collective mobilization of women workers and employees on this front by laying the foundation for a battle for ‘better’ or ‘more empowered’ ICCs but not for greater and stronger unionization of working women on one of the most basic problems confronted by them as part of the workforce. In this vein, the defining of sexual harassment in contradistinction from other labour issues and the constitution of a separate realm for its adjudication is going to adversely affect the women workforce and the workers’ movement immensely in the long run.

In this light, rather than arbitration of sexual harassment through ICCs constituted by managements, working women require the constitution of support/struggle committees within their workplaces. Far from being nominated tripartite bodies that carry out internal enquiries into complaints of sexual harassment, support/struggle committees should exist as a genuine representative platform of employees. Only elected representatives of employees should be constituent members of such committees, and instead of adjudication they should be entrusted with the responsibility of providing all kinds of support, advice and a representative voice to aggrieved women employees. By extension of this very logic, support/struggle committees would assist victims of sexual harassment in pursuing complaints to a logical conclusion outside the ambit of an employer-influenced enquiry and redressal mechanism. It is in this way alone that we can prevent sexual harassment from becoming an internal or private affair of individual workplaces at a time when the overall work culture is highly anti-labour. It is with this approach that we can begin to demand of the state the responsibility of actively representing the rights of complainants against those accused of sexual harassment in the workplace.

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Notes

[1] Section 6 (1) of the Act also states that in cases reported from workplaces employing less than ten persons the Local Complaints Committee must take up the investigation. In this way the 2013 Act has attempted to bring within its fold the otherwise highly unregulated informal sector in which a large number of women work. Of course, the question is that with overall lack of state regulation of work hours, wage rates, etc. prevalent in the informal sector, can we even expect the district administration’s intervention in the specific matter of sexual harassment? It is an irrefutable fact that neither in Delhi nor in any other state in this country do we find duly constituted Local Complaints Committees in place. In the current women’s movement no one has raised this issue of the non-existence of Local Complaints Committees, which reflects the obsession of mainstream feminists with internal committees.

[2] For more on this issue and for a detailed critical assessment of the Vishaka Guidelines and the erstwhile bill, see Sexual Harassment in the Workplace: The Vishakha Guidelines, Implementation and After, January 2013, document released by Centre for Struggling Women (CSW).

1 Comment »

One Response to “Fears and Furies of Sexual Harassment: Time to Go Beyond the Vishaka Guidelines”

  1. meenakshi gupta Says:
    July 15th, 2014 at 02:06

    what if,if there is only 1 woman in whole organisation then how cn we form internal complain comittee

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