Sexual harassment: Guilty even without proof

Last Updated: Tue, May 21, 2013 06:50 hrs

You have been accused of sexual harassment. In case this is already unnerving you, let's say, person A has been accused of such abominable behaviour; his (it could also be her) employer conducts a detailed enquiry (in accordance with the new law, an internal committee, a third of which must be women, has to investigate such complaints within 90 days); and finds that the charges are either malicious or false.

Common sense tells you the complainant, who has fabricated such charges, will also be punished - may be as severely as the accused if the charges were established. But no. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill 2012 passed by Parliament last month treats such complainants with kid gloves.

The Act, which is the first legislation to deal with sexual harassment at the workplace, rightly calls for action against the complainant in case the internal committee concludes that the allegation against the respondent is "malicious or the aggrieved woman or any other person making the complaint has made the complaint knowing it to be false". So far, so good. But the lawmakers perhaps feared a backlash from activists, and quickly added the following sentence: "Provided that an inability to substantiate a complaint or provide adequate proof need not attract action against the complainant".

Indian companies have preferred to mask their private thoughts about this particular provision in deference to prevailing popular sentiment, but most say in private that this is totally against the principles of natural justice.

There is no doubt that perpetrators of sexual harassment must be punished at all cost and that such harassment is not just a personal injury to the affected person, but violates a woman's right to equality at the workplace - something that the Supreme Court had observed way back in 1997 in the Vishaka vs State of Rajasthan case. There is also no denying that women do routinely face sexual harassment in the workplace, and there have indeed been many cases of victims undergoing severe post-traumatic stress disorders because of such wayward behaviour of the boss or colleagues.

But this does not mean that the law should go to the other extreme and allow complainants who make unsubstantiated charges to go scot-free. That's because the converse is also true - the person against whom such charges have been made also goes through enough trauma and social ostracism during the period when the enquiry is taking place. They also should get justice in cases where the charges were not proved or could not be substantiated.

Activists, though, say there is no case for action against such complainants under the sexual harassment law for two reasons: one, "not proved" does not mean that the complaint is false; and two, there are enough remedies under the ordinary law (for example, defamation), if the complaint is found to be false. Allowing internal committees of companies to take action against unsubstantiated complaints will deter women from making sexual harassment complaints, they argue.

This is specious logic. In any case, human resources (HR) experts say employers in general face a strong temptation to issue disciplinary action regardless of what their investigation determines, and regardless of whether or not the employer believes that any inappropriate conduct actually occurred. That's because all of them want to swim with the tide and do not want any negative publicity of being indifferent to sexual harassment charges.

Leading lawyers have also cautioned against using subjective impressions to decide the merit of sexual harassment at the workplace. The HR head of a multinational company refers to a famous photograph, American Girl in Italy, by Ruth Orkin. Taken in 1951, the photograph shows a young woman walking down a street in Florence and all around, men gawk at her.

The photograph led to an intense debate, with most seeing it as an evidence of the powerlessness of women in a male-dominated world, and how sexual harassment is rampant on the streets of Italy. The controversy died down only after Craig Orkin, the woman in the photograph, spoke about how, despite what some might say, the photo wasn't a symbol of harassment and the image was more of a symbol of a woman having an absolutely wonderful time. She also said she never felt in danger while walking among the admiring men and none of them crossed the line at all.

The sexual harassment law suffers from other infirmities, too. For example, it's quite strange that the law leaves room for non-monetary "settlement" between the complainant and accused before enquiry proceedings start. For example, Clause 10 of the Act says the internal committee may, before initiating an enquiry and at the request of the aggrieved woman, take steps to settle the matter between her and the respondent through conciliation, and once such a settlement is arrived at, no further inquiry can be conducted.

This, lawyers say, gives legal sanction to the possibility that the victim might be pressured to withdraw the complaint and might be threatened of action if he/she refuses to do so. The other loophole is that the Act does not cover members of the armed forces, even though many such complaints have come to the court in the last decade.

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