India’s #MeToo moment

The recent wave of revelations about sexual harassment in the entertainment and news media industry in India, popularly called the #MeToo moment has made one thing clear: there’s a dearth of listening skills and empathy. There is anguish, there is pain, there is hurt and most of all, there is anger. The time has finally arrived to heed these voices, and with understanding.

Over September and October, women like actor Tanushree Dutta, script writer and film producer Vinita Nanda and journalist Priya Ramani publicly shared their stories of sexual harassment and sexual assault by powerful men in the entertainment and media industry. While Dutta described her ordeal on a film set in 2008, Nanda and Ramani made their revelations about rape and sexual harassment on social media, initially leaving their harassers unnamed but with clues to their identities, which became public soon thereafter. These public disclosures have emboldened women to come out with their experiences, in a veritable flood of stories of humiliation, violence and abuse of power in the course of their work. Spurred by the flood of allegations, filmmaker Nishtha Jain in her Facebook post revealed incidents of sexual harassment, stalking and bullying by senior journalist Vinod Dua more than 25 years ago.

At the time these incidents took place, there were few civil institutional mechanisms to redress workplace related harassment and sexual assault, save for making police complaints. Dutta did complain in 2008 to the Cine and TV Artistes’ Association (CINTAA) but was not satisfied with the response. After Dutta left the film set along with her family, her father had filed a police complaint about the damage to their vehicle and intimidation by a mob allegedly supporting the harasser. Nanda did share her painful experience with friends, family and even a journalist. But she was advised silence, lest it affect her career. Now, Dutta and Nanda have filed police complaints and Jain’s complaint is being investigated by the institution where Dua is an editor. Speaking out has been accompanied by the inevitable backlash. Some of the accused and their families – such as film actor Alok Nath’s wife, director Vivek Agnihotri, and former editor and minister M J Akbar – have denied the allegations and resorted to legal means to silence the women speaking out by slapping criminal defamation cases and civil suits. Although the disclosures have been measured narratives of personal pain, the pushback has been severe, with accusations of ‘vengeful women’, ‘lynch mob’ thrown at them. Many are being exhorted by naysayers as well as feminists supportive of women speaking out to follow ‘due process’ as the superior method to address their grievances.

The dubious allure of ‘due process’

While Article 21 of the Constitution of India guarantees that no person shall be deprived of the fundamental rights to life and liberty except according to procedure established by law, the doctrine of ‘due process of law’ has not been specifically mentioned unlike in the Constitution of the United States of America.

What then, are the remedies available to deal with sexual harassment in the work place? Following a decade of ‘breaking the silence’ around sexual violence, heralded by the second wave of the Indian women’s movement in the 1980s, there was an attempt to codify mechanisms of redress, of dismantling institutional barriers and enabling women to seek justice for sexual violations at the workplace. Civil law in India, however, did not specifically deal with sexual harassment at the workplace until 1997. If women did not wish to approach the police – where victims of sexual assault are treated almost on par with the accused, humiliated, blamed, and made to relive their trauma – there was little recourse through official channels.

The legally binding Vishaka Guidelines issued by the Supreme Court of India in 1997, were a breakthrough in national and international jurisprudence, incorporating principles of equality and non-discrimination enshrined in the Indian constitution as well as in international law and covenants, notably the Convention on the Elimination of all Forms of Discrimination Against Women. The Guidelines were an acknowledgement that sexual harassment at the workplace was rampant and violated women’s fundamental rights to equality and the right to pursue a profession. The judgement was a vindication of what feminists had long been articulating: sexual harassment could no longer be trivialised as ‘eve-teasing’ or ‘harmless jokes’, and women who objected should not be labelled as ‘prudes’ or ‘killjoys’.

On the foundation of the path-breaking Vishaka judgement, was built the Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act of 2013, which was almost 16 years in the making. The emphasis on prevention, underlined by feminist activists and lawyers who were involved in drafting this civil legislation, was an attempt to bring about a change in male mindsets of entitlement and privilege and create awareness around the insidious manner in which sexual harassment, abuse of power and a hostile work environment impeded women’s ability to function professionally. The new civil law also provides relief measures such as transfer of the accused, change of work location if the aggrieved wished it, leave, and “other relief” measures, none of which are provided for under criminal law. Unfortunately, however, the Internal Complaints Committees (ICCs) set up under the Act, armed with the powers of a civil court, ended up replicating the adversarial criminal justice system, with its hostile procedures for cross-examination; demand for proof “beyond reasonable doubt” and “irrefutable evidence”, which is a challenge in cases of sexual violence. Likewise, while ICCs were vested with the powers of a civil court, some of the rights of the accused such as safeguards from not incriminating oneself, have left investigations by inquiry committees floundering. Of course, an accused can choose to testify as a witness in their own defence and be cross-examined, but there is no mandatory requirement to do so under Indian law.

The tilt towards the criminal law framework while dealing with cases of sexual harassment at the workplace has involved an unnecessary and dangerous shift to establishing mens rea or criminal intent, in addition to establishing the alleged act itself. The human rights perspective which is focused on impact of the violation – that is, how the specific act is perceived and experienced by the recipient of the act – is a key element of the civil law that most ICCs fail to understand. An amendment in 2016 dropped the word ‘Complaints’ and termed the ICCs as ‘Internal Committees’, to stress that their job is not limited to inquiring into complaints, but also to ensure awareness and prevention in order to change workplace environments.

The statute of limitations in law is another stumbling block in the process. The so-called ‘delay’ in raising a complaint about sexual harassment is routinely held against women to question their credibility. It also presents a challenge in law that requires witnesses, proof and evidence. That the experience of violation and the accompanying trauma have varying effects on the victim, and could deeply affect their memories of the trauma, and their ability to coherently report it, is undebatable. In particular, when there is abuse over longer periods of time, where the harasser is in a position of power over the victim, and reporting abuse might have negative repercussions on their job, silence is usually the most common coping mechanism, and can act as a powerful survival strategy. However, with rape having no statute of limitations, the developments in the case of rape filed by Vinta Nanda against actor Alok Nath will be closely watched as they will set a precedent in how Indian courts interpret delay in filing a complaint, and how it impacts testimony of the victim. A progressive understanding of sexual assault and victim testimony is likely to set the trend for future disclosure.

It is the spectacular inadequacy of ‘due process’ that has forced women to speak out publicly, in the hope of finally getting justice.

Naming and shaming

Following the revelations of sexual harassment, sexual abuse and rampant misuse of power in Hollywood in October 2017, a US-based law student Raya Sarkar released on her Facebook page a crowd-sourced List of Sexual Harassment Accused (LoSHA) or ‘The List’ in Indian academia, and faculties of Indian origin in the US. Most of the accusers chose to remain anonymous, due to a fear of retaliation or adverse consequences for their careers. The List, which named about 75 faculty members, came under heavy criticism, including from some sections of feminists who felt that “naming and shaming” by anonymous complainants without any details of the alleged act was not fair, and that due process must be followed. By this was meant reporting and following up complaints through official channels such as Internal Complaints Committees in each of these Universities, or following the criminal route by filing police complaints.

An investigative story in India by the Huffington Post, a year after the publication of the List, showed that nothing much had changed. Of the 23 Universities that were asked what they were doing about the allegations of harassment, 21 did not respond. One responded by saying that no formal complaint had been lodged and hence they could not proceed with a suo moto complaint, while the other shared information about having conducted inquiries which did not find the harasser guilty. Only three universities proceeded with inquiries, and the outcomes of all are still pending in appeal in court.

Caution: men at work

According to the National Crimes Record Bureau, the rate of reporting rape in India was a dismal 6.3 per 100,000 people in 2016, and the National Family Health Survey released in early 2018 concluded that 99.1 percent of cases of sexual violence in India go unreported. Therefore, the silence around sexual harassment is not difficult to understand. With women’s entry into the workforce in India a relatively new phenomenon, speaking out against workplace sexual harassment can have the unwanted consequence of being pressurised by families to withdraw from jobs that require interacting with men.

Vulnerable populations – whether women, sexual minorities or oppressed castes – might even go along with unwelcome behaviour as they might not have the confidence or wherewithal to resist or call out offensive behaviour. The difficulties in calling out male colleagues and garnering support from women colleagues is exacerbated when the power differential is stark. Levels in office hierarchy, age, caste, religion, ethnicity or class background might make resistance even more challenging. Recognising the politics of power at the workplace, and the inability of victims to tell their harassers that their behaviour is unwelcome, international precedents have laid down that a complaint of sexual harassment must not be rejected only because the complainant did not tell the harasser at that very moment that their behaviour was unwelcome.

It is even more of a challenge to call out sexual harassment in a hostile environment where the work culture is imbued with misogyny and sexism. Often passed off as good humour and bonhomie, sexual banter, innuendo, display of pornographic material and sexist jokes enable a culture which focuses more on women’s bodies and appearance than their professional skills or capabilities. This daily erosion of a woman’s confidence and potential for a fulfilling professional life also amounts to sexual harassment under the law. Yet, few women confront this uncomfortable work environment, as they struggle with having entered a male bastion, and are unwilling to be singled out as ‘trouble makers’, which is a common label pinned on women who raise complaints. In addition to personal barriers to reporting sexual harassment, lack of awareness of redressal mechanisms as well as procedures stacked against women, contribute to lack of reporting.

In addition to the unnecessary departure into the framework of criminal jurisprudence, in practice, ICCs – if they have even been set up in the first place – are beset with problems. Since the members of these bodies are socialised in the same milieu, pro-management bias and misogyny are rife. More often than not, with the Internal Committee being hastily cobbled together for the mandatory compliance, members are untrained and ill-equipped to handle complaints of a sensitive nature. The outside expert, preferably trained in law and women’s rights, is often someone who falls in line with management and rarely rocks the company boat. Little wonder then that women are loath to put themselves through a harrowing process with no certainty of a fair hearing.

As with disclosure of childhood sexual abuse, where a large percentage of victims do not tell anyone about the abuse, the response of the confidante, whether a parent, sibling, friend or colleague determines the longer-term impact on the victim. There is, however, no inherent healing effect of disclosure. While empathy and understanding can restore self-esteem and confidence, doubting or negative responses can enhance feelings of shame and self-reproach. The apprehension of possible alienation from their peers can keep many victims of harassment from speaking out. An environment for disclosure must be carefully created, so that women speaking out are not further shamed, blamed or made to relive their experiences of harassment. This then is the organic next step of speaking out and making oneself vulnerable. The “Me Too circles” being held in various cities is recognition of the need to support women who are coming forward now with their stories of violation. Often, what women complainants want is an acknowledgement of the wrong that has been done to them, an apology, and an assurance that the harassment will stop. The picture of vengeful women on a rampage is far from a reality where women simply want to be allowed to do their jobs, rather than spend harrowing years engaging with an obdurate judicial system. What next is the logical question: what are the varied paths to justice, reparation and self-healing?

To what extent does this adversarial legal system contribute to a conducive workplace where women can function with dignity and to the best of their professional capacities? The slapping of criminal cases and counter cases might not necessarily enable harmonious work relationships. While pinning accountability for crimes is crucial, simultaneously, measures to create safe work spaces must also be given the attention they deserve.