Monday, December 4, 2023

Casting Out the Couch

On a petition filed by Women in Cinema Collective, the Kerala High Court has directed film production companies to constitute an Internal Complaints Committee under the POSH Act to avoid sexual abuse under the casting couch system.

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The Kerala High Court took an important decision to prevent frequent sexual abuse by the casting couch system to protect young women in the film industry. The Court directed film production companies to constitute an Internal Complaints Committee (ICC) by implementing the POSH Act to provide protection under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, in the film industry. The Court said that this Act will be applicable to all those production companies where 10 or more people work. The Division Bench of Chief Justice S Manikumar and Justice Shaji P Chaly passed the order while hearing a petition filed by Women in Cinema Collective.

The petition also mentioned that political parties should be included in the matter. The Court, however, responded, saying that political parties that do not have employees or where employees do not have direct relation with party members, are exempted from forming an ICC. The Court’s order focused on big film production houses and directed that all organizations related to the film industry who have 10 or more people working there, including women employees, will have to form an ICC.

The paramount contention was that the Association of Malayalam Movie Artists (AMMA), with its registered office at Thiruvananthapuram, is an association registered under the provisions of the Travancore Cochin Literary, Scientific and Charitable Societies Registration Act, 1955, and its membership is restricted to actor/artists in feature films. According to the petitioners, as per the bye-laws of the society, its objectives are to protect the rights of its members, to maintain and develop self-discipline and professional and social ethics among members; to highlight issues concerning the artists and to find out possible remedies; and act as arbitrators in all disputes that may be submitted to them for arbitration by the members and others in the film industry.

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According to the petitioners, the Association, in spite of being the dominant professional association for actor-artists in the Malayalam film industry, has failed to implement a grievance redressal mechanism for its members against sexual harassment at workplace. It was also the case of the petitioners that the inaction of AMMA is conspicuous at a time when revelations of widespread sexual assault and harassment of women in film industries across the country have emerged. Accordingly, it was submitted that the inaction of AMMA in setting up a grievance redressal mechanism against sexual harassment is also a breach of the Vishakha guidelines laid down by the Supreme Court and a violation of the provisions of the 2013 Act related to sexual harassment of women at workplace.

In the petition, apart from the film industry, allegations of sexual harassment were also raised against members of a political party. There were also allegations of sexual harassment against women who are members of the Kerala Union of Working Journalists. Therefore, the sum and substance of the contention was that the respondent organisations would also come under the provisions of the 2013 Act related to sexual harassment at workplace. The 2013 Act was basically introduced in line with Article 11 of the convention on elimination of all forms of discrimination to which India is a party and which requires state parties to take appropriate measures to eliminate discrimination against women in the field of employment.

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The Court observed that the relief sought for in the petition wants that directions be issued to the state government to conduct an enquiry into the compliance of the provisions of the 2013 Act, in respondent organisations viz, Kerala Television Federation, Thiruvananthapuram; Indian Newspaper Society, Kozhikode; Kerala Union of Working Journalists, Thiruvananthapuram; Film Employees Federation of Kerala (FEFKA), Ernakulam; Indian National Congress Party, Kerala Chapter, Thiruvananthapuram; Bharatiya Janata Party, Thiruvananthapuram; and Communist Party of India (Marxist), Kerala Chapter, Thiruvananthapuram, Further, a direction was also sought for the respondents to set up a body for the conduct of social auditing in the establishment and effective functioning of the ICC under the 2013 Act.

According to the petitioners, failure on the part of the respondent organisations to constitute a grievance redressal mechanism for its members in the form of an ICC against sexual harassment is arbitrary, illegal and violative of the fundamental rights of its members. It also submitted that the failure on the part of the organisations to constitute committees against sexual harassment is in breach of their obligations as per the directions of the Supreme Court in Vishaka (supra) and under the 2013 Act.

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It was also submitted that all institutions having more than 10 employees should have an ICC, but unfortunately despite the legislation coming into force, the implementation has not happened in the organisations. According to the petitioners, this amounts to grave illegality as per the provisions of the 2013 Act, and the state government is bound to take action in accordance with the provisions of the Act. Therefore, it was the case of the petitioners that the absence of a grievance redressal mechanism against sexual harassment for members of the respondent associations was violative of Articles 14, 15, 19 and 21 of the Constitution.

The Court was of the view that in order to sort out the issue, a reference to the relevant provisions of the 2013 Act is required. The Court also clarified that any organisation, establishment and private institution employing workers whether for wages or not in contemplation of the provisions of the 2013 Act and coming under the definition of employer, employee and workplace, is duty bound to constitute an ICC.

Even though the counsel for the petitioners made submissions relying upon the judgment in Vishaka and Medha Kotwal Lele and others vs Union of India and others (2013) of the apex court, the High Court said that the directions contained shall continue till such time a legislative enactment on the subject is in place. Therefore, consequent to the introduction of the 2013 Act, all organisations and institutions will have to adhere to the provisions of the 2013 Act.

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In the light of these discussions, the Court observed that:

  • The production unit of each film industry is an establishment employing actor/artists and other workers, and therefore, such production units have to maintain an ICC, if they employ more than 10 workers.
  • The respondent organisations, apart from political parties, are duty bound to maintain an ICC, if they engage 10 workers or more, whether women workers are employed for wages or not.
  • If women workers are employed by any of the respondent organisations related to the film industry in which less than 10 workers are employed, they are entitled to make suitable complaints to the local complaints committee in accordance with the provisions contained under Section 6 read with Section 9 of the 2013 Act.
  • Since the AMMA has volunteered to appoint a committee to deal with sexual harassment at its workplace, we record the same and accordingly direct for action to notify the members of the ICC, in accordance with the law.
  • From the discussions made above, we find that the political parties, which are not having any employer-employee relationship with its members and which are not carrying on with any private venture, undertaking, enterprises, institution, establishment, etc in contemplation of a “workplace” as defined under Section 2(o)(ii) of 2013 Act, are not liable to make any ICC.
  • In all other cases, a woman employee subjected to sexual harassment is entitled as a right to file any complaint of sexual harassment before the local committee in contemplation of the provisions of the 2013 Act under Section 9 r/w Section 6 of the Act.

—By Adarsh Kumar and India Legal Bureau

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