The Changing Contours of Workplace Sexual Harassment
Priya Ramani and the triumph for women in India
It is a momentous triumph not only for Priya Ramani in the recent judgment delivered by the Rouse Avenue Court in the MJ Akbar defamation case, but for all women in workplaces who face sexual harassment and discrimination. The accused in high profile cases are often men wielding considerable power and influence over women in the workplace who want to maintain the status quo. As a fallout of the #MeToo movement and the high-profile casualties of the movement, the common legal strategy adopted by the accused was to file cases, including for defamation and libel in the Courts, against the complainants to restrain and prohibit them from speaking out against acts of sexual harassment in their workplaces, whether old or new.
In its judgment, the Court acquitted Priya Ramani in the defamation case filed against her by M J Akbar, Former Cabinet Minister in the Parliament, for her statements and experiences of facing sexual harassment at the hands of Mr. Akbar recounted on social media during the #MeToo movement. The Court clarified that any woman who has faced sexual harassment has the right to state her experiences on any platform, even after decades of such incidents.
The Court also took into consideration the systemic abuse faced by women at workplaces and discussed the fear and intimidation faced by a complainant when filing a complaint, especially given the societal perceptions and stigma attached to sexual harassment. Through this judgment, the Court has cleared the decks, allowing unbiased and fair enquiry into complaints of sexual harassment, without the complainant facing multiple rounds of litigation at the behest of the accused.
While balancing the respective rights of the parties in such scenarios, in this case the court considered the right to reputation of the accused as against the right to life and dignity of the complainant prescribed under Article 21 of the Constitution of India, 1950 (“Constitution”). In the judgment of the Court it has been held that the latter right would take priority over the former by the operation of Article 14 (Right to Equality) and Article 21 (Right to Life and Personal Liberty) of the Constitution.
Even though the focus of the Court was on the defamation case, the Court acknowledged that the incident Ms. Ramani faced was before any law or Vishaka Guidelines came into force to prevent workplace sexual harassment. With the introduction of the law in 2013, known as the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH”), women can now file a complaint against their harasser directly with the Internal Committee(“IC”) in their workplace instead of approaching Courts.
And, even in this respect, the judgment is important, because had it turned out otherwise, with Akbar winning the case, the critical legal question would arise on how the findings could potentially impact IC proceedings in future. According to a report published by the Ministry of Women and Child Development, the number of cases of sexual harassment in the workplace registered in India has increased by 54%, i.e. from 371 cases in 2014 to 570 in 2017. Recently, the Delhi Ethics Council of the Women’s Chamber of Commerce and Industry (WICCI) published the first annual review of the application of POSH Act – to which this author was a contributor. This blog delves into the issues women continue to face at workplaces despite a robust law in place, drawing on the review.
Abuse of transfer position
During the pendency of inquiry by the Internal Committee (IC), the IC can recommend the transfer not only of the accused but also the aggrieved woman (as per Section 12). It is not difficult to envisage a situation where the accused exerts his influence over the IC to transfer aggrieved women to remote locations and cause inconvenience to complainants.
Employees unaware of POSH laws
A Majority of employees in organised and unorganised sectors remain unaware of the POSH law, including the rights and responsibilities of the stakeholders such as the IC, the employer etc. For instance, Section 19 of the POSH Act has stringent multiple responsibilities and duties imposed on the employer, including creating a safe workplace and work environment, providing assistance to a woman in case she chooses to file an FIR, organising workshops etc. As per section 19(c) of the POSH Act, every employer is required to conduct regular awareness workshops for all, employees to understand the provisions of the law, including a better understanding of the acts and offences amounting to sexual harassment. If the employer fails to comply with this provision, a penalty of up to Rs 50,000 can be imposed on the employer. Thus, the role and responsibility of the employer is vital to facilitate a safe work environment, which is not only compliant with the letter of the law but implemented in spirit, providing an avenue for employees to institute complaints. Without the employer setting up an IC (which is mandated by law), the purpose of the law would be defeated.
However, employees in workplaces which do not have an internal committee constituted in the workplace can also advocate for it through collective action – through formal or informal means with the management.
The POSH Act and rules require the complaint to be in the form of a written complaint and even enables proxies and third parties to file a complaint on behalf of the aggrieved woman, including her parents, relatives, co-workers etc. Even though there is no formal recognition of anonymous complaints provided in the law, many POSH policies at workplaces allow such complaints and initiate an inquiry into the allegations. However, without a formal structure provided for by the law, the complaining mechanism and adjudicating process for anonymous complaints lies within the discretion of the IC, which can sometimes result in situations where the principles of natural justice may not be followed, to the disadvantage of the complainant.
Gender neutral law
In 2021, the Calcutta High Court said that same-gender complaints are permitted under the law on sexual harassment at the workplace. The Court held that people of the same gender can complain of sexual harassment against each other. A person of any gender can commit acts of sexual harassment at the workplace. However, the POSH law clearly states that the complainant can only be an aggrieved woman unless the workplace has a gender-neutral policy, by which both the aggrieved person and the respondent could be of any gender. Over time, Courts will play a decisive role in expanding the scope and import of the POSH law to extend protection to other genders as well, even though at present this is not explicitly provided for in the law.
After 2020, many workplaces have been following work-from home policies. However, even today, many employees are unaware of how the POSH law would apply while working from home. Section 2(o) of the POSH law defines “workplace” in an inclusive and non-exhaustive manner which under its sub-clause (vi) includes ‘a dwelling place or a house’.
Despite several problems with the POSH law in India, thanks to Ms. Ramani and her fight for justice in the Court, a new glass ceiling just shattered with significant consequences for the law on sexual harassment in India.
Isn’t it time for an anti-SLAPP law in India?
In light of the MJ Akbar judgment, complainants should be encouraged to proactively report instances of sexual harassment without fear of retribution such as facing protracted legal proceedings. To facilitate this, legislative measures are necessary to protect complainants from such litigation, which can be achieved through enacting an Anti-SLAPP law in India.
An Anti-SLAPP law is a solution to counter SLAPP suits or Strategic Lawsuits Against Public Participation which are cases filed to stop criticism regardless of its authenticity. Countries like the USA and Canada have Anti-SLAPP laws to ensure that defendants can exercise free speech as a matter of right and to encourage sharing information which is critical for public good.
Views are personal. Malavika Rajkumar is the Editorial Lead at Nyaaya and was recently involved with the Delhi Ethics Council of the Women’s Indian Chamber of Commerce and Industry (WICCI) to contribute to their review on the State of Sexual Harassment in India.