Tuesday, 9 October 2012

SFI Pamphlet dated 09.10.2012


India does not have a specific law to address the issue of sexual harassment of women at the place of work. Currently, the Indian Penal Code (IPC) covers criminal acts that outrage or insult the 'modesty' of women. It does not cover situations which could create a hostile or difficult environment for women at the work place. In 1997, the Supreme Court delivered a landmark judgment on sexual harassment in workplaces in the "Visakha vs. State of Rajasthan" case. In this verdict, the Supreme Court expressed grave concern over the fact that there is no legislation to protect victims. Relying on the International Convention for Elimination of Discrimination Against Women (CEDAW), the Supreme Court issued a set of guidelines to be followed by all institutions until a law is enacted. All institutions were directed to set up complaint mechanisms to deal with complaints of sexual harassment at work places. In our own university, the JNUSU held discussions on the guidelines, and lodged a massive signature campaign to ensure that the definition of the workplace includes the university as well. After a long drawn-out struggle which included brainstorming, opinion mobilisation and the groundbreaking agitation of September 1998, the Gender Sensitisation Committee Against Sexual Harassment (GSCASH) was set up to deal with the menace of sexual harassment institutionally and to sensitise students on gender issues. It was only much later that the UGC made it mandatory for educational institutions to set up similar complaints committees. The Visakha guidelines are applicable on all public as well as private institutions and workplaces, but their implementation has remained exceedingly poor till date.
Fifteen years after the Visakha judgement, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill was tabled in the Lok Sabha last month amidst the din around the coal block allocation issue and passed without any discussion. Members such as P Rajeev of the CPI(M) and D Raja of the CPI protested that such an important legislation should not be passed without debate. The bill, pending before the house since 2010, had underwent drastic changes because of pressure from women's organisations and critical review by the parliamentary standing committee – the women and child welfare minister Krishna Tirath, who piloted the Bill, had to move as many as 39 official amendments.
One of the most significant amendments in the Bill is to cover “domestic workers” employed full-time, part-time or temporarily for household work, who were excluded from the purview of the original bill on the ground that it would be difficult to create a redressal mechanism for complaints of their sexual harassment. Another important amendment is to define sexual harassment, which was missing in the original bill brought in 2010. The Bill now says “sexual harassment” includes any unwelcome act or behaviour directly or by implication of physical contact and advances, or a demand or request for sexual favours, or making sexually coloured remarks or showing pornography or any other unwelcome physical, verbal or non-verbal conduct of a sexual nature. Every employer is required to constitute an Internal Complaints Committee at each office or branch with 10 or more employees. The District Officer is required to constitute a Local Complaints Committee at each district, and if required at the block level. Non-compliance with the provisions of the law has been made punishable with a fine of up to Rs 50,000. Repeated penalties may lead to higher penalties and even cancellation of licence. The Complaints Committees have been given the powers of civil courts for gathering evidence.
However, there are some glaring lacunae and gaps in the proposed law. The Bill leaves out women agricultural workers who form the majority of the unorganised work force, including women under MGNREGA, women working in fisheries, forests, construction work sites and armed forces. The Bill has a clause dealing with 'complaint with malicious intent' which would make the complainant punishable and is highly problematic. It is common experience that in cases of sexual harassment allegations of falsehood and malicious intent are levelled against the women invariably. Moreover, no framework of time-bound enquiry is provided. The Bill also warrants that the identity of both the complainant and the accused be kept secret, which will hinder the proceedings of the case and the dispensation of punishment.
For universities and colleges this Bill has several serious implications, the most important of which is the nominated nature of the Complaints Committee. In many universities like JNU and DU, the Complaints Committees are elected, which makes the Committee more democratic, inclusive and accountable.  An equally problematic provision is that conciliation has been suggested as the first step and only if this does not work out or if it is not exercised shall the enquiry be recommended. This is against the very spirit of the Visakha guidelines. The 'determination of compensation' clause seems to put a price to every case of harassment. Moreover, it lets the employer/ institution go scot-free and holds only the individual accountable. To discuss these issues and more, SFI invites one and all to tonight’s Public Meeting at Godavari Mess, to be addressed by Com. Subhashini Ali and Adv. Kirti Singh.
Kopal, Umesh, Viswanathan (for the SFI Unit Organising Committee, JNU)

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