Sexual Harassment

By Kirthi Jayakumar

Frailty, thy name is woman. Or so believed Shakespeare's immortal character, Hamlet. Albeit anything but frail- what with the innate ability to bear children, and to slip with inimitable ease into a multitude of roles- women are unforgivably treated, subjugated and dominated over, to the point that they are forced to fit into the glove that Shakespeare's phrase has carved. Sexual Harassment, Rape, Foeticide, Domestic Violence and Dowry Harassment are merely the tip of the iceberg, as women battle it out relentlessly, to salvage their peace. One of the worst social evils women face in all quarters of society- without prejudice to any specific sphere of functioning, is Sexual Harassment. A woman could be groped in public transport, demanded to dole sexual favours for work perks, harassed on the streets, and molested by perverted relatives, or subjected to all of them. Where does a woman's grievance lie? Who enforces the rights she is clothed with? Who champions her cause?

The question is not whether women have the right to bodily integrity, as this right is already adumbrated under Article 21 of the Constitution of India. Article 21 guarantees the right to life and liberty to men and women both alike. Sexual harassment in India is called "Eve teasing" and is described as any unwelcome sexual gesture or behaviour whether directly or indirectly as sexually coloured remarks including within its ambit any physical contact and advances or showing pornography or a demand or request for sexual favours or any other unwelcome physical, verbal and non-verbal conduct being sexual in nature. The critical factor is the unwelcome nature of the behaviour, thereby making the impact of such actions on the recipient more relevant rather than intent of the perpetrator. As per India's constitution, sexual harassment infringes the fundamental right of a woman to gender equality under Article 14 of the Constitution of India and her right to life and live with dignity under Article 21 of the Constitution.

Tracing the instances where the legal system has bailed women out in India, we start with Rupan Deol Bajaj v. K.P.S. Gill where a senior IAS officer, Rupan Bajaj was slapped on the posterior by the then Chief of Police, Punjab- Mr. K.P.S Gill at a dinner party in July 1988. Rupan Bajaj filed a suit against him, despite the public opinion that she was blowing it out of proportion, along with the attempts by all the senior officials of the state to suppress the matter. The Supreme Court in January, 1998 fined Mr. K.P.S. Gill Rs.2.5 lacs in lieu of three months Rigorous Imprisonment under Sections 294 and 509 of the Indian Penal Code. Subsequently, in N. Radhabai v. D. Ramchandran, when Radhabai, Secretary to D. Ramchandran, the then social minister for state protested against his abuse of girls in the welfare institutions, he attempted to molest her, which was followed by her dismissal. The Supreme Court in 1995 passed the judgment in her favour, with back pay and perks from the date of dismissal. 1997, however, heralded a new era in the landmark decision of Vishaka v. State of Rajasthan, where, for the first time sexual harassment had been explicitly legally defined. It was afforded recognition as an absolutely unwelcome sexual gesture or behaviour whether directly or indirectly in the form of an illustrative list dictated therein, such as:

• Sexually coloured remarks
• Physical contact and advances
• Showing pornography
• A demand or request for sexual favours
• Any other unwelcome physical, verbal/non-verbal conduct being sexual in nature.

The judgment was delivered by Chief Justice J.S.Verma, on behalf of Justice Sujata Manohar and Justice B.N.Kirpal, on a writ petition filed by 'Vishaka'- a non Governmental organization working for gender equality by way of a Public Interest Litigation, seeking the enforcement of fundamental rights of working women under Article 21 of the Constitution. The factor that goaded into action the filing of the petition was the brutal gang rape of a social worker of Rajasthan. In 1992, a Saathin (i.e., a village level change agent) working for a State Run Women's Development Programme (WDP) in Rajasthan, was gang raped by five upper caste men. It was an act of revenge directed at her, for her campaign against child marriage. A brazen display of negligence and deliberate inaction by the police, medical personnel, and the magistrate, all of who worked to prevent her from registering a case soon followed suit. The Supreme Court in absence of any enacted law was called upon to provide for effective enforcement of basic human rights of gender equality and guarantee against sexual harassment. It laid down a set of guidelines. Before Vishaka, Outdated criminal law provisions of outraging the modesty of a woman or insulting the modesty of a woman were the closest Indian law came to defining sexual harassment. Often that meant nothing short of attempted rape.

For six years after Vishaka, no efforts were made in the direction of enacting a law. So the guidelines continued to be the law that was required to be followed across the country. But the guidelines were followed more in their breach, than in their orderly requirements. Frugal complaint committees were set up, service rules remained unaltered and the judgment was widely disregarded both by public and private employers. But one of the disadvantageous outcomes of the judgment was that many civil society organizations became aware of it and started to publicise it and pushed for its implementation. Around the same time many women who were being sexually harassed started breaking their silence and started demanding action from the employers. In fact, a plethora of cases arose from university and college campuses. Employers by and large began to sweep such cases under the carpet and at times even to victimize the women. But one could still see an increasing fervour of protest.

Following closely on the heels of these developments, was the exposure of the case at the M.S. University at Baroda where a student was sexually harassed by her professor. Her protests led to victimization and certain Women's organizations wrote protest letters to the Chief Justice of India, all of which were converted into a Writ Petition and the Court began actively supervising the implementation of Vishaka's guidelines. Notices were issued to the Central Government, State Governments and the Union Territories, demanding that they report to the Supreme Court in pertinence to all the measures taken by them for complying with the Vishaka Guidelines. While the Governments turned in affidavit after affidavit, each bordering on pathetic contentions, the operation triggered a flurry of activities. Service rules were amended to bring in sexual harassment as a specific head of misconduct. Committees were set up, at universities and public sector enterprises. The Supreme Court on the other hand continued monitoring the progress and now issued notices to even professional bodies. Though things were moving the changes were essentially cosmetic more than anything else.

In the midst of all this, the National Commission for Women took up the task of formulating a comprehensive legislation to deal with sexual harassment at the workplace. A group of civil society activists was constituted, which emerged with a Bill. This Bill in turn was submitted to the Ministry of Human Resource Development, Department of Women and Child Development, which in turn made amendments to this Bill and invited suggestions from the public at large. When Medha Kotwal's case came up in Supreme Court in late 2004, the Solicitor General made a statement that the Government was serious in introducing a law to deal with sexual harassment at the workplace and the Court adjourned the matter so that the Petitioners and other organizations could study the Bill and make recommendations in order to remedy the situation. Plenty of organizations working on the issue of sexual harassment met in Mumbai in November, 2004, in order to discuss and suggest amendments to this Bill.

What can YOU do, to combat harassment?

In Back Off! How To Confront and Stop Sexual Harassment and Harassers, Martha Langelan recommends taking these steps:

• Dealing with the Harasser upfront:
• Do the unexpected: Name the behaviour. Whatever he's just done, say it, and be specific.


• Hold the harasser accountable for his actions. Don't make excuses for him; don't pretend it didn't really happen. Take charge of the encounter and let people know what he did. Privacy protects harassers, but visibility undermines them.


• Make honest, direct statements. Speak the truth (no threats, no insults, no obscenities, no appeasing verbal fluff and padding). Be serious, straightforward, and blunt.


• Demand that the harassment stop.


• Make it clear that all women have the right to be free from sexual harassment. Objecting to harassment is a matter of principle.


• Stick to your own agenda. Don't respond to the harasser's excuses or diversionary tactics.


• His behaviour is the issue. Say what you have to say, and repeat it if he persists.


• Reinforce your statements with strong, self-respecting body language: eye contact, head up, shoulders back, a strong, serious stance. Don't smile. Timid, submissive body language will undermine your message.


• Respond at the appropriate level. Use a combined verbal and physical response to physical harassment.


• End the interaction on your own terms, with a strong closing statement: 'You heard me. Stop harassing women'.

• Other steps employees can take:
• Speaking out: Speaking about sexual harassment is an effective tool in combating it. While speaking about it, the problem becomes visible, it is acknowledged that it exists, and this in turn leads one to take effective measures against it. Speaking about sexual harassment also gives an opportunity to clarify by this about it. It helps in changing attitudes of people towards this issue. Speaking about it creates an enabling environment for the victim to speak out. It mobilises public opinion against it. It makes it difficult for a potential harasser to commit the crime. It equips people with information as to what is to be done in such a case.


• Speak up at the time: Be sure to say "NO" clearly, firmly and without smiling as that is the best way to let the harasser know that his behaviour is offensive. Objecting to the behaviour when it occurs helps if you decide to file charges later.


• Keep records: Keep track of what happens in a journal or diary and keep any letters or notes or other documents you receive. Write down the dates, times, places, and an account of what happened. Write down the names of any witnesses. Write a letter. People have successfully stopped sexual harassment by writing a letter detailing the behaviour that is offensive and asking the person who is harassing them to stop the behaviour. The letter should be polite, unemotional, and detailed. Such a letter seems to be more powerful than a verbal request. The recipient of the letter seldom writes back; the person usually just stops the behaviour.


• Set your own boundaries: Say "NO" emphatically and clearly when you are asked to go places, do things, respond to questions, or engage in situations that make you uncomfortable. Do not worry about offending the other person or hurting his or her ego. Take care of yourself first.


• Be aware of situations and people who may harm you: Don't ignore other's warnings about particular people or social settings. Acknowledge their concern for you and for themselves.


• Trust your own instincts about possible danger: In an uncomfortable situation, be direct and honest, and remove yourself from the situation immediately. Regardless of your previous behaviour or signals you may have given earlier, you have the absolute right to halt any sexual exchange at any time. Accept this right and act on it.


• Tell someone: Being quiet or stoic about sexual harassment lets it continue. Talk to other co-workers; you may not be the only one harassed by this person. Do not blame yourself and do not delay.


• Create a Witness to the behaviour: Inform a trusted colleague and try to insure that s/he is an eye or ear witness to an situation where you are being sexually harassed. This will be useful later if you chose to file a formal complaint. Send a copy of sexual harassment policy / rules to the harasser. If your workplace already has an anti sexual harassment policy or the conduct rules of your institution prohibit sexual harassment, send a copy of the institution policy/conduct rules to the harasser with the appropriate sections underlined.


• Talk to a union: If you are a member of a labour union, talk to your union representative.


• Get a medical check-up: If you have been raped or physically assaulted, go for a medical check-up. Obtain a medical report. This is important, should you decide to pursue a legal case.


• Report sexual harassment to the appropriate person in the organization: Explore the different avenues available to you and file a formal complaint if necessary. If your organisation does not have a policy, ensure that your employer formulates an anti-sexual harassment policy and carries out all the connected tasks.