Sexual Harassment Victims Take To Social Media Due To Lack Of Formal Redressal Mechanisms : Culture Workers Forum Tells Delhi HC

As the Culture Workers Forum has moved an application before the Delhi High Court for impleadment as a party in Subodh Gupta's defamation case against women who shared their stories of sexual harassment on Instagram handle 'Herdsceneand', the larger issue of addressing the concerns of MeToo Movement in the Art Industry has been brought to the surface.

At a time when these potential victims of sexual harassment are being dragged to courts by their alleged perpetrators, it becomes incumbent upon the judiciary to at least make itself aware about the institutional shortcomings that led to the rise of MeToo movement, as well as the genuine concerns that haunt its participants.

This impleadment application was moved along with the interim application filed by Facebook, seeking a modification in an ex parte order passed by Justice Endlaw in the Subodh Gupta case. In that order, Justice Endlaw had asked the Instagram account holder to take down the posts, and Facebook was directed to reveal the identity of the person running the said account.

The interim order was mainly challenged on the ground that it undermined the repercussions that could ensue, if the veil of anonymity is lifted from the women who had mustered courage to share their stories on sexual harassment for the larger public interest.

It is this very need for anonymity, and why such a need arises in the first place, that is addressed by Culture Workers Forum in its impleadment application.

The Forum is represented by Senior Advocate Jayna Kothari.

Lack of Institutional Redressal Mechanism

The Forum submits that the reason why victims take recourse to platforms that promise anonymity to share their stories, is because the art industry has no mechanism such as Internal Complaints Committee to address the grievances of these victims at an institutional level.

The application bases this lack of structural redressal mechanism to the fact that the art industry in India is largely decentralised, unregulated and fluid. Therefore, existence employer-employee relationships or formal structures that could effectively protect the interests of the more vulnerable individuals, is a rarity.

The lack of professional regularisation of the art industry, as well as that of the professional engagements of the persons involved with it, further emboldens the culture of impunity and unaccountability. Therefore, when young artists choose to enter the industry, mechanisms such as imposing terms of service or establishing rules of conduct, are scarcely considered.

Power Imbalance and the Need For Anonymity

The plight of artists caused by lack of institutional relief and the prevailing culture of impunity, is worsened by the fact that there exists an undeniable power structure in the art industry. This power structure ensures that anything which tries to challenge the ones that occupy the higher rungs of the ladder, is either crushed or stifled to an extent that it chokes on its own.

The Forum has submitted in its application that when sexual harassment takes place at the hands of an established and highly-reputed artist, the victim faces imminent possibility of stigmatization, isolation of loss of career opportunities should she/he seek legal recourse in respect thereof.

It is this undeniably imbalance of power and that culture of hounding and victim-shaming that it perpetuates, that further validates the demand of anonymity for victims of sexual harassment. As the application highlights:

'Anonymity affords a victim the ability to share her/his experience of sexual harassment without the threat of being stigmatised, penalised or further victimised… the anonymity provided by social media becomes the only recourse for those with little access to power to warn others about predators.'

Balance of Convenience Favours The Need To Maintain Anonymity

In the present case, a well established artist who is yet to show and prove severe harm to his reputation is asking for forceful removal of anonymity of a set of potential victims of sexual harassment whose identities, if made public, would subject them to serious consequences and almost no institutional support from their fraternity.

Even legally, in certain cases where public discourse would put a risk, or severe psychological trauma due to the revealing of highly intimate, personal information, courts have allowed parties to be represented through pseudonyms.

Similarly, it is averred by the Forum in its application that the suit is filed by Subodh Gupta, and if he seeks an interim order against 'Herdsceneand' it is his responsibility to get the detailed information of the person running that account. The use of court process to seek the said identity, is an abuse of the process of law when such relief is not even sought for in the main or interim relief.

The application also highlights the possibility of Subodh Gupta intentionally going after the low hanging fruit. It says:

'Plaintiff has intentionally filed a case against those women who were too afraid of a backlash against them, hence they shared their information anonymously. He has intentionally not made others who have come out publicly against him, parties to his defamation case.'

Impact of Due Process: A Possible Chilling Effect On the Victims?

The primary reason why Culture Workers Forum is seeking impleadment in the present matter is because this suit will have a serious ramification in culture workers in India, especially young less-establishes female artists.

Adjudication of this suit carries a possibility of having a chilling effect on victims of sexual harassment who may want to narrate their experiences on social media, not only to address the issue of sexual abuse in the art community but also to ensure that other younger artists are made aware and forewarned.

The application states that:

'... if the suit were to be decreed in favour of the plaintiff, it would essentially signal to every member of the art community that raising issue with acts of sexual harassment is futile… grant of ex-parte order would amount to the plaintiff of obtaining interim relief that is in the nature of final relief.'