Sexual Harassment: Breaking the Wall of Silence

By Akshya, USLLS

Editor’s Note: This paper begins by discussing the landmark Visakha case and later analyses the changes that the judgment brought in. There is also a brief discussion on Justice J.S Verma Committee Report and the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. The next part of the paper deals with the scenario in schools and Universities in Delhi. The various regulatory authorities have prescribed guidelines to ensure that there is no sexual harassment. The last part of the paper is a survey of such mechanisms in three Universities in Delhi.

INTRODUCTION

Sexual harassment in the past had always received a lukewarm response: be it sexual harassment of nurses in public and private hospitals; of air-hostesses by their colleagues and passengers; of teachers by their colleagues, principals and management representatives; of PhD students by their guides and so on. But this trivialisation did not deter the women rights’ activists and “Several women’s groups came forward in support of the concern about a variety of sexually violent acts against women.”[i] Women have been suffering the ignominy of sexual harassment at workplace, either because of the patriarchal mindset or out of fear of being exposed to further ridicule or expulsion from the job.

PRE-VISHAKHA SCENARIO

The catalyst for the change in many ways was the 1990s brutal gang rape at workplace of a Rajasthan state government employee, who tried to prevent child marriage as part of her duties. The feudal patriarchs of the village, enraged by her ‘guts’ decided to teach her a lesson and raped her. After an extremely traumatic legal battle in the Rajasthan High Court, the rape survivor did not get justice and the rapists, “educated and upper caste affluent men”, were allowed to go free. But, the women’s rights group called Vishakha did not give up and filed public interest litigation in the Supreme Court of India.[ii]

Before 1997, women facing sexual harassment had to lodge a complaint under Section 354 of the Indian Penal Code dealing with the ‘criminal assault of women to outrage women’s modesty’, and Section 509 that punishes individual/individuals for using a ‘word, gesture or act intended to insult the modesty of a woman’. These sections left the interpretation of ‘outraging women’s modesty’ to the discretion of the police officer.

POST-VISHAKHA

In 1997, the Supreme Court passed a landmark judgment in the Vishakha case laying down guidelines to be followed by establishments in dealing with complaints about sexual harassment. The court stated that these guidelines were to be implemented until legislation is passed to deal with the issue.

Many women’s rights groups together petitioned the Court highlighting a number of individual cases of sexual harassment and arguing that the Vishakha Guidelines were not being effectively implemented. Pursuant to this, the Government of India requested the National Commission for Women (NCW) to draft legislation. Several women’s organisations were part of the drafting committee. The bill introduced in the Parliament was known as ‘The Sexual Harassment of Women at the Workplace (Prevention and Redressal) Bill, 2004’. The bill provided for the prevention and redressal of sexual harassment of women at the workplace, or arising during and in the course of their employment and matters connected thereto, in keeping with the principles of equality, freedom, life and liberty as enshrined in the Constitution of India.

JUSTICE VERMA COMMITTEE REPORT

Despite these developments, the problem of sexual harassment assumed alarming proportions and there arose a pressing need for amendments and advancements. And thus, a three-member commission was constituted on December 23, 2012 in “the wake national outrage over the December 16 gang rape of a 23-year-old girl in Delhi”[iii]. It was assigned to review laws for sexual crimes and submitted its report to the government. The commission, headed by former Chief Justice of India, Justice JS Verma, with the former Solicitor General, Gopal Subramanium, and Justice(Retd) Leila Seth identified “failure of governance” as the root cause for sexual crime. It has criticised the government, the police and even the public for its apathy, and has recommended dramatic changes.

THE SEXUAL HARASSMENT OF WOMEN AT WORKPLACE (PREVENTION, PROHIBITION AND REDRESSAL) ACT, 2013

Finally, on 23rd April 2013, the legislature brought into force a comprehensive legislation dealing with the protection of women against sexual harassment at workplace by enacting ‘The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013’.

Several organisations have carried out research on sexual harassment. Still, most private companies refrain from investing funds in such committees. Awareness and implementation of the Supreme Court’s guidelines is very low and there is a need to spread awareness about the same.

SCENARIO OF SCHOOLS IN DELHI

From the time of Vedas, profession of providing education is considered to be noble. A teacher is considered to be a guru or a loco parentis.

The mere thought of sexual harassment happening in the temple of education, can give anyone chills, but as horrifying as it sounds it is the reality. After the Parkwood case in 2009, it was clear that the innocent children are not even safe in their schools.

While doing research for this paper, we had a chance to ask few questions from the Principal of a prestigious School in Delhi; he made a statement saying “How can a teacher, who is there to teach kids the difference between right and wrong, commit such a horrific act towards its pupil; in India such a bizarre act can’t happen”, but during our research we came across many instances of sexual harassment in schools.

The issue of sexual harassment in schools is of pressing concern in international and national forum. The committee on ‘Elimination of Discrimination against Women’ in its Report of the Fourth World Conference on Women, Beijing said- “Discrimination in girls and access to education persists in many areas, owing to customary attitudes, early marriages and pregnancies, inadequate and gender biased teaching and educational materials, sexual harassment and lack of adequate and physically and otherwise accessible schooling facilities.

W.H.O. in its report said that “Sexual violence, including sexual harassment, frequently occurs in institutions assumed to be ‘safe’, such as schools, where perpetrators include peers and teachers.”[iv] In a survey conducted by AAUW in 2011 it was stated that “there are 52 percent of girls and 35 percent of boys who have encountered sexual harassment in person.”[v]

The Supreme Court of India observed:

Sexual harassment of girl students by a teacher is a matter of serious concern and the teachers indulging in such harassment have to be dealt with sternly so that it becomes a deterrent for others.”[vi]

“In the context of sexual harassment at the work place apply with a greater vigour in respect of sexual harassment of students, who, on account of their tender age and impressionable mind are at a greater disadvantage in resisting such advances.”[vii]

Even after such a long litigation to protect the children from this evil, in India we are in denial that sexual harassment can happen in a place like school. Maybe because of this mind set, there is no proper mechanism to deal with the issue of sexual harassment against students in majority of the schools in India. In a case of sexual harassment in the Delhi Public School, the Supreme Court said that “DPS society- which is known for the quality of education it imparts through its several schools, in the country, unfortunately, in this instance, does not emerge with a role that a model employer should have displayed, and was expected of it.”[viii]

A notice issued by CBSE on February 16, 2004 stated that

It was reiterated in the aforesaid letters addressed to the Heads of all the Independent schools affiliated with CBSE that in order to prevent sexual harassment to the female teachers/other female employees, the Head of the school should initiate immediate action to specifically ensure the following remedial measures:

I) Bring to the notice of those working in the school, the definition of sexual harassment as laid down by the Supreme Court and its express prohibition.

II) Take all necessary actions to suitably modify the Conduct Rules governing the employees to ensure that they include. The express prohibition of sexual harassmen1 and provide for appropriate penalties against the offender.

III) Take all steps necessary to ensure that appropriate work conditions are provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at work places and no woman employee has reasonable grounds to believe that she is disadvantaged in connection with her employment.

IV) Set up complaint mechanism in the school to deal with complaints of sexual harassment and to constitute a Complaint Committee which should be headed by a woman and not less than half of its members should be women. Such Complaint Committee should involve a third party, either NGO or other body who is familiar with the issue of sexual harassment. This Committee may also be empowered to deal with the complaints of girl students also, if there is any.”[ix]

But still majority of the complaint committees are just for the protection of the workforce of the schools, but not the innocent children who need it the most.

The Act of 2013 implicitly states that the schools are bound to have a sexual harassment committee:

“Workplace includes any department, organisation, undertaking, establishment, enterprise, institution,  office, branch or unit which is established, owned, controlled or wholly or substantially financed by the funds provided directly or indirectly by the appropriate  government or the local authority or a government company or a company or a corporation or a cooperative authority.”[x]

The RTE Act, 2009 clearly defines the duty and rights of a school:

“A school established, owned or controlled by the appropriate Government or a local authority.”[xi]

“An aided school receiving aid or grants to meet whole or part of its expenses from the appropriate Government or the local authority.”[xii]

This definition makes school an organisation which is bound by the rules of the Act to protect their most important workforce, its students.

The objective of our paper of including schools under the purview of Sexual Harassment Act is to focus on the issue to which majority of us are turning a blind eye and to make an attempt in curbing the horrifying cases like that of the Parkwood International School and making our Indian schools a safe place for children to learn, grow and prosper.

In the next section, we explore the scenario of sexual harassment issues in higher education.

SCENARIO OF UNIVERSITIES IN DELHI

For our research, we focussed on four universities: Jawaharlal Nehru University, University of Delhi, Jamia Milia Islamia University and Guru Gobind Singh Indraprastha University. These universities have their different rules and regulations to deal with the issue of sexual harassment based on the Vishakha Guidelines. To have a quick look at their policies there is a chart below comparing their policies with the current Act-

NAME OF THE UNIVERSITY Jawaharlal Nehru University University of Delhi Jamia University Guru Gobind Singh Indraprastha University
Is there a provision for internal complaints committee, in their ordinances? Yes and as per the JNU Executive Council (Resolution 6.7) and name of the committee is GSCASH. Yes as per the ordinance XV(D)-Prohibition of and punishment for sexual harassment. Yes as per the ordinance 17(XVII), the name of the committee is SPARSH. Yes as per the ordinance 17- prevention of sexual harassment.
Is there a proper complaints mechanism? YES YES YES YES
Are there adequate awareness programmes held in the universities? YES YES YES YES
In forming of the internal complaint committee, were the norms of the Act followed? YES YES YES YES

Apart from the above given information all these universities have an exhaustive and well drafted policy and all of these universities are proud of the measures taken by them to curb the issue of sexual harassment and making a safe working environment for their employees and a safe learning environment for their students. The reality is somewhat different from the claims made by these respective universities. In the last 3 years, University of Delhi had the highest number of cases of sexual harassment followed by Jawaharlal Nehru University then the Guru Gobind Singh Indraprastha University and last but not the least, Jamia University.

After the sexual violence against three women students in three different places within a week in Delhi University in 2002, the National Commission for Women gave the following guidelines which the educational institutions should follow to make the women feel safe.

Guidelines

“Educational institutions must ensure proper lighting in an around their premises, as darkness is conducive to crime. The height of hedges must be reduced in campuses for proper visibility. An internal security committee should be constituted by all educational institutions, headed by the head of the institution, police officer and student representatives who must be invited for meetings to review the security arrangements. If the need arises, other government departments like the PWD, MCD, etc, may be invited to review the security arrangements. The internal security committee should have monthly or bi-monthly meetings and must maintain the minutes of the meeting. Experts should be invited to inspect the college area to assess the security needs and arrangements on campus. Educational institutions must perform their administrative role for the security of the students. Students must be given proper training in self-defence.

The telephone numbers of women’s helplines must be provided. Entry into educational institutions must be restricted. Entry should be through identity cards. Construction workers should not be allowed to stay on the premises of the institute overnight. Safety gadgets should be provided in hostels. Educational institutions could engage retired police officers on their security committees/boards. Awareness programmes on the safety and security of students must be conducted on a regular basis.”[xiii]

But the irony is, many of these guidelines are still not followed by majority of the colleges in Delhi.

THE SURVEY

During the course of this paper, we interviewed about fifty university students, seeking the answer to the question whether they ‘felt safe’ in their universities and the answers we got still gives us goose bumps. (For the sake of privacy, their identities are kept confidential).

Nikita: “I don’t feel safe at my college, on roads and nowhere else we girls are not safe anywhere.”

Sukriti: “Not really, despite being a law student.”

Simran: “Going to an all women’s college, I always thought I was safe from harassment or any sort of sexual discomfort, but its only when I came in the boundaries of my college, I realised the reality of the world was completely different from what I was illumining, harassment is becoming a daily routine for every woman’s life in the national capital.”

Shivika: “No, I don’t feel safe anywhere apart from my own house.”

 

During the survey we encountered many difficulties, one being, out of hundred and fifty people approached for the interview only one/third were ready to talk about this issue and out of those fifty people, majority of them didn’t know there is an Act prohibiting sexual harassment and many were even confused regarding what sexual harassment is, and some of them were even shying away from discussing this topic. What could be inferred is that the level of awareness is less in the universities of Delhi.

The Jamia University deserves a special mention for its unique policies to deal with the issue of sexual harassment. Jamia has taken utmost care in making its campus safe. “A zero-tolerance policy on sexual harassment helps too. The earlier University Complaints Committee has been replaced with an Internal Committee to deal with Sexual Harassment of Women at Workplace. While women staff and the administration are covered under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, for students the university has its own ordinance. There are complaint boxes at different points on campus, and any complaint dropped into the box is taken up for action. Bulbul Dhar James, director of Sarojini Naidu Centre for Women’s Studies at Jamia, is a member of the committee and says women are now picking up courage to lodge complaints.”[xiv]

Apart from all the strict measures taken by this university, they had the least number of cases regarding sexual harassment. In our survey, eight out of ten people from Jamia said they feel safe in there campus. Others need to learn to provide their workforce a safe and a healthy environment for working and learning.

CONCLUSION

The great Nani Palkhivala lamented that “complexity is heaped upon complexity and the confusion becomes worse confounded, the avalanche of amendments only results in more litigation.”

The situation with the current sexual harassment act is the same. On one hand, we finally have a proper Law defining sexual harassment at workplace and proper guidelines for everyone on how to deal with this sensitive issue, on the other hand, this Act protects the workforce of the organised sector, leaving behind the schools and universities students who are most prone to this brutal act are still out of its ambit.

Like Ela Gandhi said “A law alone cannot solve the problems of society, the attitude of the people need to change” and to win the battle against the sexual harassment we need to bring change in the mind set of the people.

Edited by Hariharan Kumar

[i] Baailancho Saad (‘Women’s Voice’), Goa mobilised public opinion against the chief minister, who allegedly harassed his secretary, through demonstrations, rallies and sit-ins till the minister was forced to resign, 1990

[ii] Vishakha and others V. State of Rajasthan , AIR 1997 SC 3011

[iii]  Editorial, “Verma panel for stiffer punishment to rapists but no death”, The Tehelka , April 12, 2014.

[iv] World Health Organisation, Report: Understanding and addressing violence against women (2012).

[v] American Association of University Women, Report: Crossing the Line Sexual Harassment at School (2011).

[vi] Sh. Naresh Kataria v. Dy. Director of Education, AIR 2010 CAT 870.

[vii] Dr. B.N. Ray v. Ramjas College & Ors, AIR 2008 DHC 4427.

[viii] U.S. Verma, Principal, D.P.S., Faridabad  v. National Commission For Women & Ors., AIR 2001 DHC 1730.

[ix] Notice issued by CBSE, available at:  http://cbse.nic.in/circulars/2004/Circulars-new.htm, (Accessed on April 11, 2014)

[x] The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (Act 18 of 2013)

[xi] The Right of Children to Free and Compulsory Education Act, 2009 (Act 39 of 2009)

[xii] The Right of Children to Free and Compulsory Education Act, 2009 (Act 39 of 2009)

[xiii] Vibhuti Patel, “A brief history of the battle against sexual harassment at the workplace”, Info Change News & Features (2005).

[xiv] “Jamia: The brave new face of Muslim girls”, available at: http://twocircles.net/2013dec20/jamia_brave_new_face_muslim_girls.html#.U007H_mSyTJ , (Accessed on April 12, 2014).

One Reply to “Sexual Harassment: Breaking the Wall of Silence”

  1. Indeed, the ICCPR and other international human rights instruments also set out “positive rights”, according to which governments must perform certain acts in order to fulfil human rights. Sometimes, it’s necessary to balance rights against each other, including “positive rights” against “negative” ones.

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