New Trade Union Initiative
Welcome move, but will it be implemented properly?
The recently introduced Sexual Harassment Bill, which is to be taken up by parliament in the upcoming session, is a welcome step undertaken by the Ministry of Women and Child Development. However such an act, if it were to indeed come into existence, would only significantly mean something for women workers if stringent steps are taken to implement it and the responsibilities of the employers and the state are upheld.
The Bill itself has gone through a number of iterations and is the culmination of many years of struggle led by women’s groups. The Visakha Judgement in 1997, which laid out guidelines to follow on sexual harassment cases, was one of the key highlights of this struggle. But it was to be another few years before the National Commission for Women along with civil society activists took up the task of formulating a proper piece of legislation to deal with sexual harassment. This was in turn submitted to the Women and Child Development Department of the Human Resources Ministry and soon suggestions were invited in 2004, and more iterations in 2005 and now.
The bill in a nutshell proposes that sexual harassment be dealt with through complaints mechanisms at the workplace (internal complaints committees), the block level (local complaints committees) and at the district level (local officers). The complaints committees have the authority to conduct enquiries and establish the veracity of the complaint, as well as recommend action to be taken by the employer, district officer or courts, which has to be acted upon within 90 days.
This is all well and good, but there have been many cases where progressive acts have come through with negligible impact on the ground due to poor and delayed implementation. One of the important aspects for speedy implementation is to have in writing in the Act itself that once the Bill becomes an Act, a clear timeframe should be stated within which Local Officers, Local Complaints Committees and Internal Complaints Committees will be instituted in all districts and workplaces. Failure to do so should result in punitive actions towards the concerned authorities responsible for the institution of such committees and officers, and the authorities should be held liable.
Discrepancies, gaps and regressive parts that need to be addressed
Notwithstanding implementation, the bill itself does have some discrepancies that need to be addressed. The most important of this is that it does not provide the choice for an aggrieved woman to have a member of her own choosing on the complaints committees, i.e. amicus, which has to be provided in order to mitigate, to some degree at least, the enormous power imbalances that would exist between an aggrieved woman and the forces she’s fighting in order to get justice. To look at such a situation with false equitability is wrong, since such power imbalances exist between the aggrieved party and the perpetrator, and the law should make attempts at evening the playing field a little.
The law should also make attempts to ensure that more powers are given to complaints committees in order to conduct enquiries suo motto if they have reason to believe that women are not filing complaints due to grave danger or fear of repercussions. In addition, in order to ensure that perpetrators don’t get away scot-free even after guilt has been established, once a report is prepared, then the disciplinary authority such as a court should be mandated to act upon it within a certain timeframe and the recommendations of the committee should be upheld to the satisfaction of the complainant.
A particularly regressive section, which has been added recently, states that if the allegation of sexual harassment is found to be false a woman can be punished. This is extremely disturbing and must be struck down. It is highly unlikely that, in a society where a victim of sexual assault or harassment is stigmatised and further victimised, there would be someone willing to go through all that just to make up a case. Furthermore, this creates enormous space for employers to manipulate the committee, and the evidence to stack it against the woman. Having such a measure against the aggrieved woman is completely against the spirit of such a bill. This will only ensure that women refrain from making complaints due to the fear that employers or the committee could act against them.
There is also nothing detailed in the bill with respect to the employer or head of establishment himself being the perpetrator. Liability should be much more stringent since there is lesser possibility that the victim can continue at the same job. Thus, compensation should be very large since apart from sexual harassment to the aggrieved woman this also contravenes the responsibilities of the employer in creating a safe working environment, and endangers other women workers in the establishment as well.
The bill provides for the choice to withdraw a complaint, which provides space for harassment and pressure on the woman to withdraw, as well as giving a chance for perpetrators to clear their name. To mitigate this the committee should be given the powers to carry on with the case suo motto, especially if there is evidence that pressure was brought on to the complainant to withdraw the case
Steps back from the 2005 Bill
An aspect of immense concern is that the genuinely positive and progressive features of the 2005 Bill seem to have been diluted or removed from the 2007 version.
The explanation in the 2005 Bill under the definition of ‘sexual harassment’ clarifying that it is the reasonable perception of the woman in determining whether any conduct was sexually coloured and unwelcome is important as it presupposes sexual harassment based on the victims statement. It is also critical that the burden of proof rests with the alleged perpetrator and not with the victim, when an aggrieved person claims compensation in an appropriate court of law after submitting an authorised or certified report of the Internal Complaints Committee. The 2005 Bill also has sections clearly indicating that employers have to take responsibility in ensuring compliance with the law and that failure to do so can result in punishment for violation of the law, which is important to uphold. All this is missing in the 2007 version.
The progressive features under Rules of Evidence before Complaints Committee in the 2005 Bill such as sensitivity to the complainant; non-permissibility of evidence/examination based on aggrieved woman’s character, personal/sexual life and history; taking note of socioeconomic conditions and hierarchy etc. are all very important and displayed a progressive understanding. Sensitivity and non-permissibility of evidence related to the aggrieved woman’s character or personal/sexual life and history is critical as this has been used very often in courts running under patriarchal norms to quash proceedings of sexual violence. This was also a clear attempt, however feeble, through stated law, to address patriarchy within society, and it is very wrong that this is missing in the 2007 version.
The 2005 Bill also had features such as issuing interim orders to protect the aggrieved woman during an enquiry as well as protect her and her witnesses/supporters even if the complaint is dismissed. This means that women will at the very least not be legally penalised for filing complaints. Finally this law should not be in derogation of any other ones such as those on rape and sexual assault, but rather in addition to those. This means that the aggrieved woman can also can take up other proceedings in addition to any ones taken under this Act. The fact that all of these important sections were missing from the 2007 version represents a step backward in the iterations of the bill and must be corrected.
Where Trade Unions come in
One aspect of implementation of the Bill (once it comes into existence) is the State, but another aspect to it is the people, and this is where trade unions come in.
The Bill clearly indicates that complaints committees will have an activist from a trade union as a representative of the employees. This means that the left-democratic trade unions need to lead the way in ensuring that these committees are instituted fairly and democratically in all establishments and at the block/district level.
Another very important area for intervention is education. All trade unions should study the act clearly and develop training programs for workers on how to fight for their rights under the act. This also provides an excellent opportunity for trade unions to address issues of patriarchy and sexism within their own formations, thereby further contributing to the unity of the working class and addressing gender-based violence.
Sexual harassment at the work place is something that historically has been taken up by trade unions in a very piecemeal way. This bill represents an excellent opportunity to undo that past and clearly show that the left-democratic unions are committed to holding up women’s rights, which is integral to the advancement of the working class
Vol. 1, No. 3, March 2007, Union Power
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