Sexual Harassment of Women at Workplace - Outlining Evolution of the External Member Provision in the Law

Section 4 of the Act mandates that the IC should be headed by a senior woman employee and not less than fifty percent members should be women. Sub section (2) (c) the Act states that a member from non-government organisations or associations committed to the cause of women or a person familiar with issues relating to sexual harassment should be appointed with the IC as an external member. However, the Act does not delve deeper into the role of this member or delineate their responsibilities making it an ignored provision.

This article therefore traces the origin of appointment of an external member with ICs firstly with reference to the Supreme Court Vishakha Judgement (1997) and then delves into various aspects of the same with the help of court judgments subsequent to Vishakha.

Vision of Vishakha

Before Vishakha, the language of sexual harassment in India remained shrouded and sexual dimension of harassment was a mystery. Vishakha emphasised that sexual harassment at workplace could be approached from the point of view of systematic discrimination and that societal attitudes needed to change. Vishakha had an enabling and compassionate approach as it focused on prevention of sexual harassment- an element which was missing in the criminal law. With Vishakha, the focus shifted from convicting the perpetrator to protecting rights of women in relation to work. The judgment upheld the idea that concept of equality was much more than treating all persons in the same way. It pronounced that equality between men and women in the true sense of the term could be realised by making concentrated efforts towards rectification of existing power imbalances in the society specifically those at workplaces.

It was understood that criminal litigation had been ineffective for producing changes in workplace norms because it gave employers only a bare notion of unacceptable behaviour. Criminal court judgments were not capable of organising and educating employees to produce the necessary changes in conduct. For the protection of women and the education of those who victimise them, it is necessary to explore less coercive means of normative changes as court decisions do not organise or educate employees to produce the necessary changes in conduct. Education of employers and employees was thus recognised as most important tool in the prevention of sexual harassment that would enable sexual harassment of working women come to the forefront.

Converse to the crime and punishment understanding, Vishakha envisaged sexual harassment about equality and loss of dignity. It was yet another instance for the women's movement demanding that the promise of protection of the laws be delivered to women are sexually harassed by men because they are women. Vishakha envisaged engagement with workplaces to assume a shared responsibility to foster change through prevention. It promoted awareness by demystifying discomfort through encouraging meetings and discussions on sexual harassment with workers. It saw a workplace with increased awareness on the issue of sexual harassment with collaboration between employers and trade unions, with the assistance of government and non-profit organisations.

This understanding characterised the Vishakha judgement which envisaged a law preventive in its character as well as punitive. The objective was to influence mind sets, promote changes in attitudes towards women and sex discrimination in the workplace with the help of experts in the Committee. It was thought that behaviour changes prompted by awareness voluntarily introduced and advocated by the employer would be constructive compared to criminal litigation. Entire Vishakha campaign that went into building directives for employers shaped by the preventive law perspective and intervention. This strategy of the civil society organisations guiding employers to curb sexual harassment at workplace saw its extension in Vishakha.

Exploring Rationale Behind Internal Redress Mechanism with an Outside Member

Vishakha took a strategic leap forward for equality by creating mandatory complaints mechanisms at all workplaces with external experts which meant informed processes and balance outcomes. For the first time proposed special panel / Committee were to be constituted by employer and to be led by women employees. This was taking into consideration the climate of male domination existing in places of employment. Most importantly the Committee was to involve an external member knowledgeable on sexual harassment to prevent the influence of management on decisions made by the committee. It was expected that those appointed as outside / external members would carry the legacy of Vishakha forward in interest of women. Hence to begin with members of non-profits were consciously involved non-profit organisations in the capacity of outside / external members in the Committees in a watchdog and counselling role.

While Vishakha was codified into a full-fledged special legislation in the year 2013, notably, the provision of appointment of an external member was retained as per Section 4 (2) (c) of the Act. Multiple Court rulings, including the Supreme Court of India since then chose to comment on role and responsibilities of an external member appointed with the IC. Uniqueness of Vishakha was thus carried forward by Court rulings on sexual harassment at workplace with special reference to the external member. Significant ones are mentioned below.

In X vs. Air France [2018 (170) DRJ 609] the Delhi High Court declared invalid an IC constituted, on the ground that the qualifications of the external member did not match as spelt out by section 4 (1) (c) of the Act. Consequently, the report submitted by the IC which exonerated the respondent was set aside by the Court. The Court stated that there was nothing on record to show that the external member was experienced in dealing with cases of sexual harassment, worked for the cause of women in general and that the member was from a non-governmental organisation. The Court specified that the aim behind the requirement of an external member was to prevent the possibility of any undue pressure or influence from senior levels of the organisation

In Punjab and Sindh Bank vs. X, [AIR 2020 SC 3040] the Supreme Court of India ruled that purpose of having external member is to ensure the presence of an independent person who can aid, advise and assist the Committee. The court observed that the purpose of having an external member is to remove institutional bias. In the said case, the Court directed the employer to replace the external member with a truly independent third-party having regard to the provisions of Section 4(2)(c) of the Act as requested by the complainant. Court added that appointment of an external member was a significant facet which went to the root of the constitution of the IC as per the Act.

In X vs. Rashtrasant Tukdoji Maharaj Nagpur University, [MANU/MH/0912/2014], the Bombay Court highlighted that the external member must be an independent and impartial person who will command respect and compliance from influential management. Therefore, they must be concerned with all IC proceedings. The Court also observed that the external members, being a third party, must make all efforts to see that the respondent does not succeed in avoiding the inquiry into his conduct.

In X vs. UOI, [2019 VIAD (Delhi) 478] the complainant approached the Delhi High Court against the order of the single judge which declared her complaint as false and directed her to deposit Rs. 50,000/- as penalty with the Delhi High Court Advocates Welfare Trust allowing the employer liberty to initiate appropriate action against the her. While setting the order aside, a division bench of the High Court specified that purpose of having external member with the IC was to evaluate the statement made by a complainant by assessing its credibility. It would act as a safeguard for men, as false complaints were possible and for which the Act had provided in Section 14 i.e. false and malicious complaints.

In R vs Union of India, [MANU/DE/2178/2020] the Delhi High Court has specified that in order to maintain complete neutrality during inquiry proceedings, IC members should possess blemish less credentials and they must be impartial i.e. they should not have any personal knowledge or interest in the case or be connected to the case in any manner. Also, they should not have conflict and / or bias for or against with any of the parties involved. While reiterating purpose of having external member with the IC the Court specified that their role is to aid, advise and assist the Committee in a fair and impartial manner. Moreover, that impartiality and objectivity can be ensured only when the outside member is independent in true sense of the term.

In the above mentioned cases, Courts adequately warned employers against having an external member having professional association with the organisation and those having no experience of dealing with complaints related to sexual harassment. In these cases, courts have restricted appointment of an outside member lacking expertise in sexual harassment of women and with a possibility of bias. Courts have emphasised that appointment of a member as per spirit of the Act will motivate the Committee to adopt a victim centred approach thus recognising value added by external member to the IC.

Court judgements on sexual harassment of women at workplace after 1997 reveal that role of external member has been expanding and evolving steadily. While Vishakha directed appointment of an external member with the then Complaints Committee for limited purpose of deflecting undue pressure on the Committee from the influential management / employer, in various Court rulings responsibilities of the external member have been expanded. In the Nagpur University case the Court has established tall expectations for the external member which not only include ensuring implementation of the Act in the respective organisation but also eliminating sexual harassment from it. It is worthwhile to note that the much criticised provision on false and malicious complaints in the Act too has a bearing for the external member. In one of the above mentioned case laws, the Delhi High Court has spelt out that it is with help of the external member the Committee should assess whether the complaint is genuine or otherwise. This is a humungous responsibility.

External members will be able to fulfil the duties expected by the Courts provided they have the requisite perspective on violence against women at large and specifically on sexual violence against women. Persons functioning as external member will have to necessarily understand complex dynamics of gender, power and sexuality and should be able to apply the same to the complaints of sexual harassment. A thorough knowledge about gender biases, hierarchies at work, power imbalances and use of sexuality by men as a tool to oppress women is most wanted. This clarity combined with basic understanding of inquiry procedure and laws relating to violence against women is essential for an external member.

Road map for future

The Vishakha guidelines envisaged a IC that built ownership towards the issue with enhanced experience and expertise. However,a close examination of functioning of the ICs across sectors has been consistently poor. It has continued to be problematic before and after enforcement of the Act. After Vishakha, there came rulings from various High Courts that criticised functioning of the Committee. Though organisations are bombarded by numerous capacity building programmes organised by external members, implementation of the Act is riddled with inconsistencies. Recent reports highlight that women employees in the private sector seem to be unhappy with functioning of the Committees as they were increasingly found reaching out to the She-Box – online complaint registration mechanism initiated by Government of India. It is found that Committees either do not act on complaints promptly or lack perspective on sexual harassment. There is absence of understanding regarding what constitutes sexual harassment and that holding women responsible for it amounts to victim blaming. Also, they fall short in adhering to the Act and have little understanding of the procedure resulting in complainants losing faith in them. In several instances, Committees were either not impactful or they gave a clean chit to the respondent.

Whenever the complaint is against a man yielding power in the organisation, there is an invariable failure to protect the career interest of the complainant, leading to her termination or resignation from service. This pushes complainants to approach external agencies such as media, police and Women's Commissions for complaints redress. Reality check reveals that women victims of sexual harassment are compelled to commit suicide because of sexual harassment and hesitate to report sexual harassment due to lack of confidence in the organisation including its redress mechanism, low awareness about laws and procedures, threat of professional victimisation apart from fear of ridicule, stigma and embarrassment. This is obvious defeat of Vishakha which aimed at redress of complaints internally without the woman having to be entrapped in the lengthy litigation.

Considering the problems related to IC functioning, it is urgent that external members appointed with Committees are seen as important and valued by employers. However, the problems will not cease to exist just by improvement in the behaviour by employers. They are multi-layered and myriad. While the noise around compliance around the Act has been becoming shrill, demand for effective external members has been increasing over the years. Functioning as an external member has increasing become publicity oriented and financially lucrative proposition. Consequentially, external members seem to have lost sight of the purpose of their appointment and are falling short to live up to the idea set out by Vishakha which entails empowering women survivors. Web search reveals that external members can be found without any effort by the employers. Some are repeatedly investing their resources in public programmes done in online mode educating HR persons, employers and IC members employed with the private sector and conducting induction courses to certify persons aiming to work as external members while impact assessment of these initiatives with regard to justice for women is glaringly absent. Focus is mostly on English speaking urban and semi urban population employed with the corporate sector. Hardly any initiatives are undertaken to actively engage with the state, to either protest against the miserable scenario with respect to implementation of the Act or to build confidence of women. The task of restoring rights of women suffering from injustice by employers seems to have been consigned to the mercy of Courts beating the precise reason Vishakha came into existence i.e. to prevent excess reliance on criminal justice system and litigation.

The Act needs to be amended to specify criteria for appointment of a credible and experienced external member including delineation of their responsibilities. Also, a mechanism that regulates functioning of external members and provides them guidance should be created. Bleak scenario can be improved, if external members have understanding of dealing with sexual harassment from victim centred trauma informed approach. Entire process will be hampered due to presence of an external member not having relevant field experience. It could lead to lack of just and fair IC proceedings. This can prove to be injurious to the interest of the complainant and affect trustworthiness of the process. Therefore, external member must bring in knowledge, skill and capacity to ensure that the inquiry processes are done in a professional and unbiased manner. It is required that external members work on sexual harassment of women from the multiple viewpoints including labour rights and gear themselves to struggle against caste, class, gender, religion and patriarchy while dealing with complaints of sexual harassment. Comprehensive understanding of issues will help them to connect with the collective goals that existed during the Vishakha campaign and consciousness raising that followed the Bhateri gang rape case. Need of the hour that external members should connect to the women's movement and women facing violence in the society for whom they have been appointed with the IC rather than functioning in isolation for vested interests. That is when the goal of Vishakha will be realised in its true sense.

***Author has a PhD in Social Sciences from TISS, Mumbai and is working as a Consultant

References

1. Anoo Bhuyan and Shreya Khaitan. 2021. '8 Years On, Poor Compliance With Sexual Harassment Law' IndiaSpend, 21 February 2021, available online at https://www.indiaspend.com/women/8-years-on-poor-compliance-with-sexual-harassment-law-729370 (access on 25 February 2021).
2. Gender at Work and NWMI.2020. 'Creating Safe Workplaces – Prevention and Redress of Sexual Harassment in Media Houses in India, 8 March 2020, India.
3. Human Rights Watch. 2020. 'India: Women at Risk of Sexual Abuse at Work- Poorly Enforced Laws Leave Informal Workers No Recourse, Human Rights Watch', 14 October 2020, available online at https://www.hrw.org/news/2020/10/14/india-women-risk-sexual-abuse-work (accessed on 10 November 2020).
4. Indira Jaising, 2006. Sexual Harassment at Workplace. 2^nd Edition 2014. New Delhi : Universal Law publication.
5. Institute of Social Studies Trust. 2021. Women Workers in Gig Economy in India – An Exploratory Study, New Delhi: ISST
6. Kanchan Mathur. 2018. Challenging the Collusion of Caste, Class and Patriarchy Embodied in the State, in Ed. Kathuria, Poonam and Bhaiya, Abha, Indian Feminism, pp 59-88, New Delhi: Zubaan
7. Naina Kapur. 2009. 'Aspirations of Law, Blog by Naina Kapur - Truth and Transformation'. available online at http://nainakapur.blogspot.in/2009/03/aspirations-of-law_03.html?updated-min=2009-01-01T00:00:00-08:00&updated-max=2010-01-01T00:00:00-08:00&max-results=4 (accessed on 28 June 2013).
8. Naina Kapur. 2013. 'Workplace Sexual Harassment: The Way Things Are', Economic and Political Weekly, Commentary, June 15, XLVIII NO 24.
9. Salina Wilson. 2021. Believe her, support her: what India's sexual harassment law needs, The Indian Express, 6 April 2021, available online at https://indianexpress.com/article/opinion/india-sexual-harassment-law-me-too-priya-ramani-mj-akbar-7261587/ (accessed on 6 April 2021)
10. Shikha Chhibber. 2021. 'Sexual Harassment of Women at Workplace: Govt Clueless About Implementation of SHWW Act', Clarion India, 27 March 2021, available online at https://clarionindia.net/sexual-harassment-of-women-at-workplace-govt-clueless-about-implementation-of-shww-act/ (accessed on 28 March 2021).