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Above: Activists holding a protest after the panel gave a clean chit to the CJI/Photo: UNI

While the Sexual Harassment at Workplace Act is a welcome idea, there is an inherent unfairness about the victim remaining anonymous while the alleged perpetrator is named and shamed by anyone with an axe to grind 

 

By Maithili Shaan Katari Libby

The World Health Organisation has recognised sexual violence as a serious public health and human rights problem. It can take many forms including rape, sexual slavery, harassment, forced exposure to pornography, pregnancy, sterilisation, genital mutilation and others.

Any office worker facing unwelcome sexual advances in the “workplace” has the right to sue the perpetrator under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. Chief Justice of India (CJI) Ranjan Gogoi has spent weeks of his tenure fighting off a sexual harassment claim. Unhappy with the way the Supreme Court in-house panel was handling this particular case, the complainant eventually refused to attend further hearings, and the rest of the proceedings were done ex parte; the CJI was found not guilty of any harassment.

What is the right way of handling such sensitive complaints? Empathy is the key and so is the need to be completely neutral. In the CJI’s case, for instance, the original panel was rapidly swapped for a fairer one comprising Justices SA Bobde, Indu Malhotra and Indira Banerjee. Also, when the complainant expressed discomfort with Justice NV Ramana being part of the panel, he promptly recused himself. Making the complainant feel totally comfortable is crucial.

Section 4(1c) of the Act clearly states that one half of the members on the panel must be women. The original panel in this case had no women members, although the later one comprised two women. There should always be an external member on the panel as well.

In short, the panel needs to be beyond reproach. Nemo judex in sua causa is a Latin phrase that literally means “no one should be a judge in his own case”. Therefore, under no circumstances should the accused—even if he is the boss—be permitted to be privy to, or worse still, sit on the panel. When it comes to sexual harassment cases, even small companies take pains to make the procedure clear, make provisions for recordings, and the transcripts are given for the complainant/witnesses to endorse. Having legal counsel present is less common, but given the imbalance of power, one does not see why this request was not acceded to in the CJI’s case.

The Act is, as the title suggests, meant for women in the workplace. This is a welcome idea, and there is much that is right with this Act. However, there is an inherent unfairness about the victim remaining anonymous, while the alleged perpetrator is named. Anyone with an axe to grind could make a complaint, or persuade someone else to do so. This would serve to dilute the Act itself, as all complaints will then be viewed with some degree of suspicion, and genuine complaints will be lost in the noise—so to speak.

Under Article 1.1 of the International Covenant on Civil and Political Rights, 1966, to which India is a party, everyone charged with a penal offence has the right to be presumed innocent until proven guilty. It is submitted that here too, he should receive the same treatment. The Act has a provision for punishment for false or malicious complaints (Section 14) but this is too little, too late, especially for someone of stature/ standing—whose life is turned upside down, reputation tarnished, while he is spoken about, whispered/written about—until the proceedings are over.

And how many will wait to read the outcome before passing their own judgements? And will we be able to turn back the clock and restore public perception? Justice AK Ganguly had to resign as chairman of the West Bengal Human Rights Commission even though the sexual harassment allegations made against him by an intern were never proven!

In India, as in many other countries, self-respect is everything. With it goes your standing in society, and by extension that of your family’s. The Delhi High Court had restrained TV channels, print media and news websites from reporting allegations of sexual harassment against another former Supreme Court judge, but a simple Google search links him with the charges. In an age where the first step of any HR department is an internet search on a potential employee, prospects will be slim for any man who has once had these charges made against him. Any passing reference to this online is a blow to the reputation—even if they were later disproved or found to have been malicious.

By contrast, the complainant—genuine or not—continues to live her life with only those close to her knowing what is underway. A malicious complaint will result in “appropriate punishment” in accordance with the internal rules (if any). This could mean anything from a slap on the wrist to a stern warning or removal from service. None of these will show up on a Google search.

As a strong proponent of equality between men and women, one can see that there is currently a distinct imbalance in this law. It is possible to be discreet about both parties. The settlement provision at Section 10(1) of the Act envisions the Internal Committee encouraging conciliation—via discussion, apologies, job reinstatement, and other amends—without a monetary exchange. Where is the possibility of such conciliation if the woman is permitted to go straight to the press? It would appear that in some cases, there is in fact no desire for conciliation—only an urgency to tarnish.

Some believe that the Act is too open to manipulation. This is what Bar Council of India (BCI) chairman Manan Mishra was referring to in his open letter. Essentially, women with ulterior motives can drag a man through the slime, if they wish to—so also corporates, political parties or even ambitious subordinates. This is inherently unfair. A tragic consequence is that women with genuine harassment claims are difficult to decipher and getting justice for them should be the priority.

As WOICE (Women of India for Collaboration and Empowerment in Law) rightly said in its open letter, societal realities are “that complainants usually risk shame, social ostracisation and the potential ruin of their futures in coming forward to complain of sexual offences. Legal procedures require a complainant to subject herself to invasive (and often insensitive) scrutiny by the police and other state authorities, the defence counsel, the media and society at large. In view of this, survivors of sexual offences often prefer not to make complaints”.

Therefore, only two types of women will ultimately complain. The first category includes those who have truly been aggrieved and desperately need justice. These are the ones we should be actively protecting and encouraging. The second includes women with an ulterior motive. The latter is the category to be wary of.

Anonymity for both sides is needed urgently—with only the Internal Complaints Committee being privy to the identities. Severe penalties for any “leaks” are a must too. Ultimately, if the man is found guilty, his name can (and should) be slapped across headlines. Equally, if he is found to be innocent then he should have the option of slapping the false claimant’s name across headlines.

Of course, the choice should be theirs. Either aggrieved party has the option of choosing to let it go.

—The author is a barrister-at-law (Honourable Society of Lincoln’s Inn, UK) and a leading advocate in Chennai. With inputs from Nikita Nayar

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