Sat, 05 Dec 2020

No #MeToo for Women Like Us

Pressenza
18 Oct 2020, 20:27 GMT+10

Poor Enforcement of India's Sexual Harassment Law

In 1992, Bhanwari Devi, a government social worker in the north Indian state of Rajasthan, was gang-raped in front of her husband by higher caste neighbors angered by her efforts to stop a child marriage in their family.

Justice eluded Bhanwari Devi. A lower court acquitted the accused of rape and convicted them with lesser offenses for which they served nine months in jail. The appeal is still pending in the state's High Court today, 28 years later. But public outrage and activism catalyzed by her ordeal paved the way for new legal protections against sexual harassment in the workplace for millions of Indian women.

After state authorities, her employer, denied responsibility because she had been attacked in her own fields, activists filed a public interest petition in the Supreme Court demanding that "workplaces must be made safe for women and that it should be the responsibility of the employer to protect women employee at every step." Acting on the petition in 1997, the Supreme Court of India in Vishaka v. State of Rajasthan set out the "Vishaka Guidelines," mandating that employers take steps to protect female employees from sexual harassment at the workplace and provide procedures for resolution, settlement, or prosecution. In 2013, India enacted the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act to protect workers in both formal and informal sectors.

The act was a significant legislative step for India but for most women workers in the country, especially those in the informal sector, the law exists only on paper. Government enforcement of this law is so poor that if the attack against Bhanwari Devi happened today, she would still be unlikely to get justice.

After the global #MeToo movement erupted in October 2017, with millions of survivors posting to social media about their own experiences of gender-based violence, many women in India-mostly from the media and entertainment business, as well as others able to access social media in English-started using the hashtag to publicize their accounts of abuse. This led to new public scrutiny of high-profile male figures and led to some resignations and legal action. However, in part because it was led on social media, the #MeToo movement in India excluded women from the informal sector, where 95 percent of women are employed.

"The factory worker, the domestic worker, the construction worker, we have not even recognized the fact that they are sexually harassed and assaulted on a daily basis," said Delhi-based lawyer Rebecca John. "But poverty leaves them no choice, they know whatever earning they make is far more important." One woman, a domestic worker, told Human Rights Watch that sexual harassment in the workplace has become so normalized, women are simply expected to accept it:

Everyone thinks of harassment as trivial. "Just ignore," is what everyone says. If it becomes too much, then I think it is better to report because the more you tolerate, the more it happens. But we are poor, and we are also afraid if we report our employers, they can file false charges of theft against us, so we are scared to raise our voices.

Based on 85 interviews with women working in both the formal and informal sectors, trade union officials, labor and women rights activists, lawyers, and academics, Human Rights Watch found limited government efforts to enforce the law and gaps in mechanisms to protect women in the informal or unorganized sector, such as millions of domestic workers and those employed by the government to implement various welfare schemes.

Although more women are speaking out against sexual harassment in the formal sector, and companies are slowly taking steps to comply with the law, activists said that women still find it difficult to report because of stigma, fear of retribution, and because they fear a drawn-out justice process that often fails them.

Law Against Sexual Harassment at the Workplace

In 1997, the Supreme Court introduced the Vishaka Guidelines. "Gender equality includes protection from sexual harassment and right to work with dignity, which is a universally recognised basic human right," the court said. However, the guidelines failed to explicitly address sexual harassment of women in the informal sector-a group now numbering some 195 million.

The 2013 Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act widened the definition of the workplace and covered the informal sector, including domestic workers. Popularly known as the POSH Act, it provides protection to all workers in the public and private sectors including health, sports, education, or government institutions, and any place visited by the employee during the course of her employment, including transportation.

The law defines sexual harassment as physical contact and advances, or a demand or request for sexual favors, or making sexually colored remarks, or showing pornography, or any other unwelcome physical, verbal, or non-verbal conduct of sexual nature. Any of these acts whether direct or implied, constitute sexual harassment under the law. It provides an alternative to filing a criminal complaint with police, instead mandating employers to set up committees in case of a private company, or local government officials in case of the informal sector, to hear complaints, conduct inquiries, and recommend action to be taken against perpetrators. This can range from a written apology to termination of employment.

Women can still file police complaints under the Indian Penal Code dealing with sexual harassment or assault. But unlike a criminal case that could drag on for years, the complaints committees are expected to offer quick and effective remedy.

Under the POSH Act, every employer is required to constitute an Internal Committee (IC) at each office with 10 or more employees. For establishments where the IC has not been constituted because they have fewer than 10 employees, or if the complaint is against the employer, or for women working in the informal sector, the state government's district officer or collector is required to form a Local Committee (LC) in each district and, if required, at the block level. The government is also responsible for developing training and educational materials, organizing awareness programs, monitoring implementation of the law, and maintaining data on the number of cases of sexual harassment filed and resolved in the workplace.

Sexual Harassment at Work

A 2017 survey by the Indian National Bar Association of over 6,000 employees-the largest conducted so far in India-found that sexual harassment was pervasive in different job sectors, ranging from lewd comments to an outright demand for sexual favors. Most women, it found, chose not to report sexual harassment to management because of stigma, fear of retribution, embarrassment, lack of awareness of reporting policies, or lack of confidence in the complaints mechanism. It also found that most organizations still failed to comply with the law, or members of Internal Committees did not understand the process adequately.

There are no studies in India that document the extent to which sexual harassment in the workplace contribute to women leaving their jobs. "There are anecdotal sources," said journalist Namita Bhandare who wrote a multi-part investigation series for , a data journalism website on this phenomenon. "Girls don't want to talk about sexual harassment because they fear that their families will just ask them to stop working. There is no data or a substantive quantitative study on sexual harassment, and none at all in the informal sector."

Garima (name changed), a nursing officer who had sought protection and redress from her employers at a government hospital, complained to the Delhi Commission for Women in 2019 about the proceedings of the Internal Committee. The committee, which was formed only after her complaint, consisted of people that were already aware of the problems but had failed to intervene because the accused was their supervisor. "When the medical superintendent accused in my case entered the room, all the committee members rose to greet him," she told Human Rights Watch. "Their bias was very obvious. The Internal Committee worked to protect him." Garima also alleged that committee members, who were employed at the hospital, threatened her to withdraw her complaint and did not provide her the final report of the investigation. The Delhi Commission for Women held a hearing for her and said they would forward her complaint to the district-level Local Committee for investigation. Garima said she was not called by the Local Committee for a hearing. Instead, the commission informed her in February 2020 that the committee filed a final report quoting police officials saying she did not have enough evidence to prove her case. Said Garima:

If I did not need this job, I would not do it. Why should women have to work like this, in such a terrible environment? I have become an example for others to point out "See what happens? Nothing." Sexual harassment is so normalized that other doctors tell me, "Why are you bothering to fight. This is childishness. We all deal with it, why cannot you?"

A Silent Crisis in the Informal Sector

Seven years after the 2013 law was enacted, the government has not published any data or information on the functioning or effectiveness of Local Committees that are responsible for dealing with sexual harassment complaints in the informal sector.

A 2018 study by the Martha Farrell Foundation and Society for Participatory Research in Asia based on Right to Information requests to 655 districts in the country found many districts had failed to establish the committees or constitute them in line with the legal provisions. Even where they existed, it is difficult to find any information on websites or public spaces displaying their names and location.

The study also found a lack of awareness regarding roles and responsibilities among the committee members, indicating a lack of capacity to handle sexual harassment complaints. Out of 655 districts in the country, 29 percent replied that they had formed Local Committees, while 15 percent had not done so. The majority, 56 percent, did not respond. By May 2020, even in the capital, Delhi, only 8 out of 11 districts had constituted Local Committees. Anagha Sarpotdar, chair of the Mumbai city district Local Committee since 2018, said that by May 2020, the committee had only received five complaints, all from the formal sector. She said:

There is no awareness about the Local Committees because the central government has not given any money to state governments to spread awareness. This is directly reflecting in low reporting. The implementation of the law has failed in the informal sector. Committee members are not even paid travel fees in some cases. There is no money earmarked in the budget for the implementation of the POSH Act.

The central and state governments, which employ millions of women to implement schemes related to health, nutrition, education, and social welfare, have failed to take steps to protect these workers. The women are considered part-time or volunteers, earn low wages, and form part of the informal sector. This includes 2.6 million (literally "courtyard shelter") workers who work on early childhood care and nutrition under the government's Integrated Child Development Services to provide food, preschool education, primary health care, immunization, and health check-up to children under 6 years and their mothers; over 1 million Accredited Social Health Activists (ASHA) who work as community health workers under the government's National Rural Health Mission; and 2.5 million midday meal cooks who prepare the free lunches provided in government schools.

These women may face heightened risk of sexual harassment due to their work, but authorities' failure to ensure that government institutions, such as schools and hospitals, have properly functioning Internal Committees, or that districts have Local Committees, has left these women without accessible channels for redress. For instance, Nisha (name changed), 36, an ASHA worker in Haryana, described how normalized and rampant sexual harassment can be:

When we go to the sub-center to work, sometimes when we are alone, our male colleagues comment on how we are dressed, ask personal questions about our husbands, and it becomes awkward. Sometimes, when we go to people's homes to vaccinate children for polio, the young and old men crack jokes like, "Give us also two sips, we will also become young and virile."

Ranjana (name changed), 45, is an ASHA worker and part of the ASHA workers' union in Haryana. She said their work requires them to be on call even at night in case of emergencies, making them vulnerable to harassment: "There is no awareness or training from the government on the sexual harassment law, for instance, if something happens how we should complain. They only tell us that if there is an emergency at any time, we have to respond to the call."

Domestic workers are another significant category of workers who are especially at risk of sexual harassment and violence due to their isolation in private homes and their exclusion from many key labor protections guaranteed other workers. Despite a growing national and global movement to recognize domestic workers and bolster protections for their safety, India has not ratified the International Labour Organization's Domestic Workers Convention.

For domestic workers, the 2013 POSH Act says that Local Committees have to refer the case to the police, leaving no civil remedy. Human Rights Watch has previously documented that women often face humiliation and mistrust at police stations when they go to complain of sexual violence, and that criminal cases can drag on in courts for years, leaving survivors vulnerable to threats and loss of work days when they attend hearings. This same phenomenon also makes most women domestic workers reluctant to complain. "Even in rape cases, women have such a difficult time filing a complaint," said Nandita Bhatt, director of the Martha Farrell Foundation. "How would they file a complaint that an employer looked at them inappropriately?"

Shalini (name changed), 37, a domestic worker in Gurgaon, said she was sexually harassed for months by a security guard of the residential apartment complex where she worked as a part-time domestic worker. Shalini has been associated with the Martha Farrell Foundation for a few years now and is aware of the POSH Act, but she does not believe she would ever report a case:

People like me do not get justice. The Local Committee is so far away that I could not even think of going there, and I would definitely not go to the police. This law has not helped women like me. Even if you complain, nothing happens. Once we protested for a domestic worker who was beaten up, but the police put pressure on us to be silent. So, what is the point of going to the police? If we even think of complaining, employers would file false complaints against domestic workers and the police will keep the domestic workers all night at the station and harass them. Our lives have not improved because of the law.

Kainaat (name changed), 25, said that she was sexually harassed by a man old enough to be her grandfather when she was 17 and working as a domestic worker, living in her employer's home:

When his children and grandchildren would go out, he would purposely stay home and keep following me around. He would pat my back, but then his hands would wander. I tried to ignore. Once when he did this, there was no one at home so I went to the washroom and did not come out until others returned. I knew no one would believe me if I told them, so I kept quiet. That man used to tell me, "Wear a short dress, you will look better in it." I put up with it because I had to earn to support my family.

India's garment industry is the second largest employer of women in the country after the agricultural sector. Sexual harassment in Indian garment factories as well as the serious gaps in monitoring and addressing these abuses is disturbingly prevalent, say activists. Even though the industry largely employs women, the management remains mostly male. Women reported lewd comments, invasive questions about their sex lives, stalking, and propositions for sexual favors in exchange for a lighter workload and time off.

#MeToo and the Cost of Speaking Out

The "Me Too" movement in India has continued to comprise of a relatively small group flagging a pervasive problem because stiff barriers to reporting remain, including fear of reprisals and lack of awareness or trust in Internal Committees. Powerful men also use legal intimidation tactics to fend off their accusers.

For instance, as part of India's #MeToo movement, the most prominent allegations were against a minister in the ruling Bharatiya Janata Party (BJP)-led government. In October 2018, at least 20 women accused M.J. Akbar, then-minister of state for external affairs, of sexual misconduct over several years during his career as a newspaper editor.

Akbar denied the allegations and contended that they were malicious. He resigned as minister, but filed a criminal defamation case against Priya Ramani, a woman journalist who first wrote about his abusive conduct.

"I spoke the truth in the public interest and in the context of the #MeToo movement," Ramani told a court in August 2019 in Delhi when deposing in the criminal defamation case against her, saying it "is an attempt to intimidate me by deliberately targeting me." Ramani's lawyer, Rebecca John, told Human Rights Watch that the defamation suit, pending at time of writing, had a chilling effect. "Many women have since come to me because they have been very worried about possible backlash they would have to face if they spoke out. It is evident no one is speaking about sexual harassment anymore. The moment came and went."

A relic of the British colonial period, India's criminal defamation law carries up to two years in prison and a fine. Criminal defamation, by virtue of the disproportionate penalty it imposes on speech, violates the right to freedom of expression as guaranteed under international law and should not be used as a legal response to complaints of sexual harassment. Civil defamation cases can also be used for intimidation. Other men accused of workplace sexual harassment in India have brought civil defamation cases against complainants.

In April 2016, the former chairman of the Intergovernmental Panel on Climate Change, R.K. Pachauri, filed a civil defamation case against one of the women who had accused him of sexual harassment. He also filed a case against her lawyer, Vrinda Grover, and included several media outlets in the suit, for publicly revealing the statements of the women who had accused him of sexual harassment. Grover said:

The issue has reached a new low, where the lawyer who is speaking in the public space is now being targeted.... This to my mind is an extremely dangerous direction in which things have been moved because the one area where we have been able to create support is the social space.... It is the social sphere that is critical to the process of change, where a different narrative develops, one that pays keen attention to women's articulation of what is wrong with a lewd comment and why it's not a minor "Eve-teasing" [euphemism used for public sexual harassment or assault] issue.

International Legal Obligations

India ratified the United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)-which has been interpreted to prohibit sexual harassment at work as a human rights violation-in 1993. India is also party to the International Covenant on Economic, Social and Cultural Rights, which says all workers are entitled to "[s]afe and healthy working conditions" and provides that states have a core obligation to prohibit sexual harassment at work through law, ensure appropriate complaints procedures and mechanisms, and establish criminal sanctions for sexual harassment.

In June 2019, the International Labour Organization (ILO) adopted a landmark treaty that established new global standards to prevent and respond to violence and harassment in the world of work. The Indian government, representatives of Indian workers' groups, and representatives from India's employers' associations all voted in favor of the convention, but India has yet to ratify the treaty.

The treaty sets out minimum obligations for how governments should prevent and protect people from violence at work. This includes ensuring robust national laws against harassment and violence at work and adopting a gender-responsive, inclusive, and integrated strategy. The treaty requires prevention measures, including information campaigns, and special attention to sectors with heightened risk of violence and harassment. It also requires enforcement-such as inspections and investigations, and access to remedies for victims, including complaints mechanisms, whistleblower protections, and compensation.

Key Recommendations

The Indian government should take urgent action-in collaboration with state governments, civil society organizations, women's rights activists, trade unions, private sector, and national and state commissions for women-to raise awareness about and ensure implementation of laws and policies that address sexual harassment in the workplace. The government should:

Enforce the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, including monitoring the creation and effective operation of committees, carrying out inspections and investigations, sanctioning employers who fail to comply, and ensuring access to remedies for victims, including complaints mechanisms, and compensation. Publish data on an annual basis on the number of sexual harassment cases filed and resolved by Internal and Local Committees, including the types of cases and resolution. Publish data on the number of employers sanctioned for non-compliance with the law. Ratify and implement the ILO Convention on Violence and Harassment, 2019, No. 190 and take steps toward effective prevention measures, including special attention to sectors with heightened risk of violence and harassment, such as domestic work. Conduct a nationwide audit on Local Committees and publish the results. The audit should assess how many Local Committees have been set up, their composition, nature of complaints received, orders issued, time taken for issuing orders, what kind of training and awareness raising programs, campaigns, and workshops they have held, and other related aspects of their responsibilities. Increase cooperation and dialogue with workers' organizations and civil society groups to address sexual harassment as a key workplace issue, and partner in information campaigns and reporting on effective enforcement of the law.

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