Author- Dr Poornima Advani, partner, The Law Point and former chairperson of National Commission for Women
If you are the victim of sexual harassment, won’t offenders ensure that they are in a position where it’s always “his word against yours”? In other words, who would be foolish enough to carry out such dubious conduct in plain sight of everyone. How would courts then review the burden of proof norms of jurisprudence to ensure justice to the woman while not compromising on the rules of evidence to sift the truth from the falsity of the case?
The Delhi High Court has recently revisited this aspect and held in a recent judgment that neither the lack of eyewitnesses nor any disciplinary proceedings that might be pending against the victim would take away the credibility of a sexual harassment complaint. However, one would have to give weightage to the overall circumstances governing each individual case.
It said that Internal Complaints Committees under the Prevention of Sexual Harassment law is not required to maintain the high standard of proof required in criminal trials. Nor can the Committee compel her for production of witnesses and corroboration of her statement.
The far-reaching judgement can potentially set right our stereotype responses to dealing with such cases. Our deep-seated behaviour patterns fundamentally fail to recognize historical inequities because of which a majority of offences remain unaddressed. The High Court has recognised that it is unlikely that she shares her torment with other colleagues.
The complaint, filed in 2011, was heard under the Vishaka Guidelines that were in force before the Sexual Harassment of Women at Workplace (Prevention Prohibition and Redressal) Act, 2013,
“It must always be borne in mind that a woman who is perturbed by an action of a male colleague, either through words, gestures or action, cannot be expected to have such clarity of thought, to know who all were present at the time of the incident, and who all may have witnessed the incident and remember their names and faces,” reads the judgement by a division bench of Rajeev Sahai Endlaw and Asha Menon.
The ruling came in an appeal against another judgement of a Single Judge in a sexual harassment complaint made by an employee, wherein the charges could not be established during the inquiry. Therefore, the Court directed costs of Rs 50,000 against the complainant. The High Court Bench set aside the fair and disciplinary proceedings against the appellant, while not ordering an enquiry against the respondent who has retired.
Acknowledging women as valuable human resource, the Court said, “Gender conditioning where the man develops a superiority complex, while the woman doubts her capacity, starts very early in life. It need not be in the form of a tutorial, but certainly as subtle data to the minds of young children, about their privileges or lack of it.”
“The privileges also come in the opportunities to develop personality, confidence, intelligence and skills. It is impossible not to notice all around us, how easily the “common woman” is put down by the “common man.” Less said the better of what happens to the Third Gender,” they added.
Remove Deep-rooted Cultural Bias
It is gender conditioning that leads men to abuse, ill-treat or become violent towards women or treat them disparagingly and with condescension, the Court said.
The High Court bench further added that it was essential to put ourselves in the shoes of the woman who has been harassed while holding an inquiry rather than just going by legal precedents that generally set the burden of proof on the prosecution.
“Though stereotyping is itself unwarranted, it has been noticed that just as in other sexual offences, she goes through a lot of soul-searching (again due to gender-conditioning), she tries to adopt measures of self-protection, by avoiding the perpetrator, maybe even by taking leave! ..That is why law mandates every workplace to have an Internal Complaints Committee is required and every woman employee to know the person she can contact in the Internal Complaints Committee when faced with any unsavoury or unacceptable conduct by a male colleague.”
The dignity of all women employees must, at all times, be protected by an organization being “acutely aware” and creating an equitable work culture through sensitization programs.
If you look around, such bias is inherent in our work culture, though women’s role in modern society has moved far beyond that of a caregiver. Even advertisements for say disinfectants tend to portray the mother in conversation with doctors to ensure cleanliness and protection of children. Why is the father rarely projected as a caregiver?
The reality is that the woman’s role has expanded far beyond wherein they are having to juggle full-time jobs from their homes during the lockdown while taking care of children even though the husband is as much at home. Unless the cultural bias is recognized, justice will remain a far cry.
Broader Approach Will Open Doors of Justice
Such inquiry has to proceed based on whether there is a ring of truth in the complainant’s allegations that can quite easily get verified at cross-examination.
Unless a degree of comfort is assured to women venturing out to work in corporations and large organizations including the government, which is a relatively small proportion of the workforce because of education levels, we can’t even hope to address the bias in our informal workforce.
Justice, in terms of gender equality, will require a broader approach. It is the lack of sensitivity because of which a housemaid–who are juggling full- time jobs while catering to every need of the family–never finds the confidence to report countless cases of harassment they have to face every day. From Bollywood to running petrol pumps or manning our borders, women are now a ubiquitous part of the Indian workforce.
While we have always taken pride in the strength of our women symbolized in ionic films like Mother India, it is time to create a safe work environment that has to start with gender sensitization and to remove any chance of their being taken advantage of as they go about ungrudgingly in protecting all and sundry.
India’s sexual harassment laws are now about seven-years-old and have catalyzed greater awareness about such issues in the workplace. Still, the objective behind the legislation will only be realized when the reforms are instrumental in removing the inherent bias in our culture.
Colleague for sexual harassment, her own efficiency or inefficiency or temperament or the fact that disciplinary proceedings were initiated or are pending against her, are completely irrelevant and extraneous to the inquiry. Her credibility is not diminished because of such pending disciplinary proceedings against her.
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