What's Wrong With The Sexual Harassment Complaints Redressal Committees? – Ground Level Perspective

What

July 2019 saw the Delhi High Court impose financial penalty on a woman complainant for having registered false case[1] of sexual harassment against her senior. Judgment reveals that during the inquiry the complainant was unable to recollect names of witnesses and articulate her complaint with details. Much space remains to discuss behaviour of the Internal Committee (IC)[2] and inquiry procedure followed by the Committee that could have created fear and hesitation in the complainant.

Similar objections against the Committee were recently highlighted by an associate employed with a law firm. She voiced that the Committee members were unfair, insensitive and unprofessional. They not only faltered on the procedure but also violated the firm policy on sexual harassment. Also, they did not adhere to spirit of the law. Effort of Committee was directed towards intention of the doer rather than impact on the complainant. (Legally India, 2019).

Researching the Issue

In this context, I argue that functioning of the Internal Committee[3] has been consistently poor. It has been problematic before enforcement of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (here after referred to as the PRSH Act, 2013). This is substantiated by findings of the research undertaken by me as fulfillment of the PhD programme at the Tata Institute of Social Sciences (TISS), Mumbai between 2012 and 2014. The need for such research arose from the faulty and meager implementation of the Vishakha guidelines (1997). One of the objectives of the research was to understand and analyse experiences of women complainants of going through inquiry. The research was done prior to the enforcement of the 2013 Act and provided insights into status of compliance by organisations to the then existing legal framework i.e. Vishakha guidelines.

Methodological Approach

Research questions required that a qualitative approach was followed. More specifically, phenomenology was chosen in order to get a both closer and deeper understanding of lived experiences of individuals who implemented the Vishakha guidelines and those who were affected by their implementation. This helped in bringing out new and context specific knowledge both from the compliance and process point of view.

Mumbai was chosen as the research setting taking into consideration that it is the economic capital of India and home to different kinds of organisations. There were numerous challenges in terms of locating participants for research and gaining their consent. Women's organisations and / or groups, human and / or women's rights lawyers, and the State Commission for Women became contact points to get in touch with women who reported sexual harassment and individuals who had experience in implementing the Vishakha guidelines. Lawyers, trade union members and representatives of non-governmental organisations (NGOs) functioning as external members with complaints committees were willing to be part of the research.

A few participants were selected using purposive sampling (Welman and Kruger, 1999) and others were located using the snowballing technique (Babbie, 1995; Crabtree and Miller, 1992). The sample size was 27. Out of these, six persons were members of complaints committees including chairpersons, three were human resources professionals, six were from NGOs and women's organisations, two were members of trade unions and three were lawyers. Seven women were complainants who had reported sexual harassment at their workplaces. Out of these seven, four were employed with government organisations while three were working in private sector companies.

The challenge in locating and accessing participants for research reflected lack of uniformity in participant profiles. The sample was not representative in terms of participant activities except that all participants were employed with the organised sector and were concerned with the implementation of the Vishakha guidelines. Data collection was done using single in-depth semi structured conversational interviews.

Experiences of the participants were captured in three themes. One of the prominent themes that emerged was experiences of women who underwent inquiries after registering complaints of sexual harassment. This theme is particularly important because it provides a base to understand and analyse prevailing situation relating to functioning of Committees as per current law on sexual harassment. The theme was analysed from the point of view of women complainants.

Noteworthy Findings

A 2018 survey (KelpHR and NHRDN, 2018) reveals that more than 70% of the organisations among those surveyed are compliant with the Act (Tribune, 2018) resulting they constituting mechanisms i.e. Internal Committees to redress sexual harassment complaints. This is further complemented by the data from the BSE 100 companies for the past five years i.e. 2013 to 2017. It shows that reported instances of sexual harassment have been increasing.

As per law all reported complaints of sexual harassment are invariably referred to the Internal Committee of the organisation. The 2013 Act empowers these Committees with powers of civil court allowing them to not only conduct inquiry in reported complaints of sexual harassment but make crucial recommendations of regarding transfer, leaves from work, conducting performance appraisals, penalty, compensation during and on completion of inquiry. Taking into consideration crucial role played by the Committee and powers endorsed to as a mechanism, it is important that the Committee inspires confidence and is reliable. Obviously because it decides on the future of the persons involved in any reported complaint (Rao,2017)

However, information on the Committee functioning reveals that Committees either do not act on complaints promptly (TOI, 2018) 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 (Indian Express, 2017; The Hindu, 2017; The Wire, 2017). Also, they fall short in adhering to the Act and have little understanding of the procedure (INBA, 2016; Sakhrani, 2017) resulting in complainants losing faith in them (Hindustan Times, 2018).

In the inquiry that was held by three Supreme Court judges against the Chief Justice of India, the complainant walked out of the inquiry stating that she found the atmosphere of inquiry frightening and the entire exercise made her feel nervous. Committee repeatedly asked her reason for delay in registering the complaint and the paper work was not done in fair manner. Additionally, complainant declared that she was not informed about the procedure followed by the Committee. She emphasised that the Committee seemed to be oblivious of the fact that that the complaint was against a sitting Chief Justice of the Apex Court and therefore they would be required to follow a procedure that would be transparent, equal and fair considering humungous power imbalance (Live Law, 2019)

Above mentioned state of affairs currently existing is substantiated by findings of the research.

Existence - None of the organisations that formed part of the research had complaints committees as a permanent system in place. Committees were constituted by the employer due to external pressure or came into action after complainants protested and demanded compliance to the Supreme Court Vishakha guidelines. Implementation was done with reluctance and out of compulsion. Absence of Committees was reflected in the fact that none of the complainants had knowledge about its existence. This reflected lack of awareness generation by the employer and initiative by the Committees to reach out.

Attitude - Committees consisted of employees who were forced to be in it and not out of choice. Additionally, they did not have clarity about their role and the steps to be taken after a case was reported. As a result of the confusion about their role, the committee members did not engage enough with the complainant and did not listen to her attentively. It was also seen that committee members were unable to understand the impact of sexual harassment on physical and mental health of the woman. Most of them carried pre conceived notions about women complainants resulting in complainants feeling threatened. Committee saw complainant as a revenge seeking person leading to either blaming her for misusing the law or justifying sexual harassment as a mistake committed by the man. It was expected of the woman to forgive the man and there was a feeling that penalty imposition on the man would be an extreme step.

Facilitation - Most women did not know names of the Committee members before they participated in the inquiry nor if an external member was a part of the panel. Also, Committees did not inform the complainants about the inquiry procedure. Committee members were unable to provide complainants with inputs and guidance needed. In order to make the inquiry procedure women friendly and make the complainant feel supported it was needed in beginning that her doubts were clarified; the procedures were told to her clearly preferably in writing. It was crucial that the woman was accompanied by someone of her choice who understood the procedure and could support her at the time of the proceeding. However usually it was not allowed by employers on the pretext of confidentiality. The women were left on their own feeling isolated and further victimised.

Procedure - It is prerogative of the IC to ensure that the procedure did not become harsh and unfriendly for the women. This can be best achieved by taking firm stand to define the scope of the inquiry and avoided irrelevant questions during cross examination. It was observed that time bound aspect was missing in the inquiries since the committee had many other commitments and deadlines to meet. There were no standard operating procedures regarding procedure to be followed during inquiry. Due to lack of knowledge the committee members were seen avoiding the procedure or took time to complete it. Sexual harassment happened in privacy it was required that the committee members understood that evidence could be lacking.

Retaliation - Reprisal in the form of termination from service, forced resignation, transfer, excess work, humiliating work conditions after registration of complaint was distinctly seen in all cases except that of one. However, Committees were unable to intervene. There were no mechanisms put in place by the HR department to protect the women from retaliation. The HR department was involved in protecting the man and constitution of the committee depended on the HR department. In all cases except one, complainants faced brunt of the man when they proactively resisted and protested against sexual harassment.

Envisaging Improvement

Inquiry can process has the potential of becoming less threatening and more friendly. For that it is important that the IC knows the PRSH Act, 2013 thoroughly and is conversant with inquiry procedure. Capacity should be created on part of members for them to be aware about both subtle and implied forms of sexual harassment. Members should find time to do ground work with respect to the complaint to understand chronology and circumstances that will facilitate establishing corroborative plus circumstantial evidence to support it. Information regarding composition of Committee and identity of each member along with broad explanation of inquiry procedure should be given to the complainant. Focus should be on creating enabling and facilitative environment that will help the complainant to go through the process without fear and pressure. While the inquiry is pending it is duty of the Committee to understand fears and apprehensions of the complainant. Also, they need to ensure that the complainant is protected from retaliation either from the employer or the respondent. Also, recommendations to be done with respect to granting leaves and transfer etc. while inquiry is pending should be done after discussion with the complainant. IC should be able to engage enough with the complainant and provide assurance for her to start rebuilding her confidence. Emphasis during communication should be that the inquiry will be done following proper procedure which entails fairness and sensitivity. Additionally, it should be clarified that decision will be a collective effort and considering various factors such as impact of sexual harassment, socio –economic position, power differences based on organisation hierarchy and equations involved. Alongside the technical expertise the body language of the IC members must be empathetic and attentive to the process. Perception of the complainant regarding specific incident or behaviour will have to be respected. IC members will have to reject ideas and stereotypes regarding external appearance and behaviour of the complainant. Sensitivity is of paramount importance. Any form of aggression or open disbelief in the complainant will be detrimental to the rapport building process. Prejudging the complaint to be false should be avoided.

Concluding Discussion

Kapur (2013) states that the Vishakha guidelines envisaged a Committee that built ownership towards the issue with enhanced experience and expertise. However, after Vishakha, there came rulings from various High Courts that criticised functioning of the Committee[4]. Prominent among them was the 2004 judgment by the Bombay High Court in the NALCO case wherein the Committee had forced the complainant to physically demonstrate incident of molestation and she had succumbed to it under pressure. Bombay High Court trashed inquiry report by the Committee naming it as shocking and biased (TOI, 2004). Fast forward in May 2018, X vs. Air France the Delhi High Court emphasised that the Committee had not adhered to the principles of natural justice while conducting inquiry. Apart from faulty composition of the Committee, that Committee did not take steps to lend confidence or assurance to the complainant as she repeatedly raised concerns of not feeling comfortable in the manner in which the inquiry proceedings were being conducted which violated fairness of the inquiry proceedings, the Court ruled. 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[5] (Indian Express, July 2019). Blunders by the ICs will only reflect lack of will on part of the employer to create workplaces free from sexual harassment. It is only when the employers take the legal provisions seriously and not follow them in a ritualistic manner the difference will happen.

References –

Babbie, E (1995): The practice of social research, 7th edition (Belmont CA: Wadsworth)

Crabtree, B and William, M eds. (1992): Doing qualitative research: Research methods for primary care Vol.3 (Newbury Park, CA: Sage)

Dutta, Sumi S (2019): Disappointed with ICC Sexual Harassment Survivors Turn to She-Box , The Indian Express, 29 July 2019. Viewed on 15th August 2019 (http://www.newindianexpress.com/nation/2019/jul/29/harassment-victims-turn-to-she-box-2010886.html)

Legally India (2019): Khaitan Associate Leaves after Concerns of How Firm Dealt with Her Sexual Harassment Complaint, Legally India, 27 June 2019. Viewed on 30th June 2019 (https://www.legallyindia.com/lawfirms/khaitan-co-associate-leaves-after-concerns-of-how-firm-dealt-with-her-sexual-harassment-complaint-20190627-10668)

Live Law (2019): Complainant in the CJI Sexual Harassment Case Decided Not to Participate in the In-House Enquiry Any Longer, Live Law, 30th April 2019. Viewed on 2nd May 2019 (https://www.livelaw.in/top-stories/breaking-woman-who-alleged-sexual-harassment-by-cji-decides-not-to-participate-in-in-house-enquiry-144658)

Rao, S (2017): Only a Properly Constituted Sexual Harassment Committee will Inspire Confidence. The myLaw Blog, October 7 2017. Viewed on 2nd May 2019 (http://blog.mylaw.net/only-a-properly-constituted-sexual-harassment-committee-will-inspire-confidence/)

Sarpotdar, A (2016): "Sexual Harassment of Women at Workplace: A Socio-Legal Study of Organised Sector in Mumbai", PhD Thesis, Tata Institute of Social Sciences.

The Tribune (2018): Is the Sexual Harassment Act Really Effective?, The Tribune, July 18 2018. Viewed on 10th April 2019 (https://www.tribuneindia.com/news/jobs-careers/is-sexual-harassment-act-really-effective/622178.html)

Times News Network (2004): New Panel to Probe NALCO Sexual Harassment Case, The Times of India, June 9 2004. Viewed on 13th July 2019 (https://timesofindia.indiatimes.com/city/mumbai/New-panel-to-probe-Nalco-sexual-harassment-case/articleshow/727134.cms)

Welman, Johannes. C. and S. J. Kruger (1999): Research methodology for the business and administrative sciences, (Johannesburg, International Thompson: South Africa)



[1] Section 14 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 – PRSH Act, 2013 makes false complaints of sexual harassment punishable

[2] Internal Committees are consituted as per the PRSH Act, 2013 to conduct inquires in reported complaints of sexual harassment

[3] As per amendment in May 2016 nomenclature was changed from Internal Complaints Committee to Internal Committee

[4] NALCO (2004), U S Verma vs. NCW (2009), Dr Punita Sodhi vs UOI (2010), Jaya Kodate vs. Nagpur University (2014)

[5] Sexual Harassment electronic Box (SHe-Box) is an effort of GoI to provide a single window access to every woman, irrespective of her work status, whether working in organised or unorganised, private or public sector, to facilitate the registration of complaint related to sexual harassment. Any woman facing sexual harassment at workplace can register their complaint through this portal. Once a complaint is submitted to the 'SHe-Box', it will be directly sent to the concerned authority having jurisdiction to take action into the matter.