Sexual harassment law and implementation in India — what do experts have to say?

iPleaders interviewed leading ladies of sexual harassment prevention in India to share their thoughts. If you are keenly watching this space, or interested in the development of women rights, you do not want to miss their insights.

A trivial joke, a personal compliment or unnoticed advances; sexual harassment at workplace can take any form and looks innocuous at times. Sometimes it takes the shape of discrimination, refusal to promote or extend fair opportunities to women who resist sexual advances, consequently creating hostile work environment for women in general. However, enactment of Sexual Harassment (Prohibition, Prevention and Redressal Act) 2013 has been a bit of relief for women professionals and workers across India. Companies have shifted from turning a blind eye towards such issues to addressing them, and taking appropriate steps before things escalate.

Although it is undeniable that irrespective of how good the law maybe, sexual harassment still exists almost everywhere and mostly goes unreported.

You may not know about them, but there are some unsung heroes, who are trying to help India implement sexual harassment compliances in spirit and not merely as a dry letter of the law. As expert members on the ICC, they not only ensure fair and just trials, but also provide assistance to the companies to implement better and comprehensive policies. There are no specific terms for them in corporate lingo. They are experts in sexual harassment law and organisational behaviour, and are working hard to turn the tide in favour of sexual harassment free, fair and friendly workplaces.

iPleaders reached out to the leading ladies of sexual harassment prevention in India to share their thoughts on the “state of the nation”. They had some really interesting insights to share. If you are someone keenly watching this space, or interested in the development of women rights in India, you do not want to miss their insights.

We were fortunate enough to interview Devika Singh, Associate at Clasis Law, who specialises in labour and employment laws and has advised and assisted various corporations on sexual harassment matters.

The second expert we spoke to is Shalini Khanna, Director NAB India Centre for Blind Women and Disability Studies. Along with the responsibility of her NGO, she also assists over 13 companies in India as an expert member.

Our last but probably the most well-known expert on board is lawyer Sonal Mattoo, NLS alumni, Founder of Helping hands and Mantran Consultants and non-executive Independent director of Vatika Marketing Ltd, V-mart and Aashiana Housing ltd. She is also an independent ombudsperson supporting various clients in handling employee-related complaints. Her contribution to sexual harassment prevention has twice been covered by Femina, Cosmopolitan, and Reader’s Digest.

A recent report by BSE reveals that there is a 12 percent reported an increase in the sexual offences at workplace. Where do you think the act is lacking in dealing with the issue?

Sonal Mattoo: Honestly, I would not call this a sudden increase. There is an increase in the rise of reporting the issue which needs to be appreciated. This increase in reporting is reflective of more awareness and the fact that companies are coming forward with the initiatives that can combat sexual harassment.

Having said that, the number of reported cases is still very less. You cannot even imagine the number of cases that exist in reality. I can give you two reasons for that. Either the victim isn’t aware of sexual harassment policies of the company or she doesn’t believe in the fact that the company might come to her rescue. You see, mostly companies are not supportive of ICC and this is not the failure of the act. It is primarily because the companies only take sexual harassment prevention as a compliance and not something which is vital for women at their workplace. They tend to ignore that even their top performing managers could be at fault too. This leads to a situation where the company often tries to conceal the unfortunate act to save their brand value. As it is a common practice, most women do not come forward to even lodge a complaint. What these companies fail to realise is, if they actually deal with the issue, their brand value will actually increase.

If only, the companies start understanding that dignity of a woman is way more important than their brand value, finding loopholes in the act would be unnecessary.

Can the companies be blamed for poor execution of an act like this?

Devika: Indian corporate system is very uneven. While there are companies which are beautifully executing the policies, there are some which are doing worse than you can imagine. You cannot come to a conclusion by random sampling. I mean, let’s say there are 10 companies. In my experience only two of them look at the compliance strictly, while the other four would merely fulfill the obligation and the next four would not even comply.

It is a matter of outlook actually. We are living in a country where women rights are still striving to develop, where marital rapes are still not penalised.

In such a scenario, a company establishing an ICC is in itself a breather. A company’s sensitivity towards a particular issue is solely dependent on the ideology it believes in and the awareness it has. I think it is that awareness or insensitivity towards sexual harassment which needs to be blamed.

I think this lack of awareness leads to a greater challenge which is to realise that sexual harassment prevention is a very important compliance to ensure healthy working environment. So, it’s actually lack of understanding of the need of law and proper awareness about the prevailing law too, where these companies have failed.

While Vishakha guidelines existed, enforceability of ICC is only a recent phenomenon. What do you think is the best part about the act apart from it mandating ICC?

Shalini Khanna: See, even before the act there were companies which had sexual harassment prevention cells. I have been very fortunate to work with companies like these who realised the value of sexual harassment prevention way ahead of its time. However, the external members were just for the namesake. With the enactment of new laws, the formation of ICC without expert member is impossible. This has created a system of internal checks and balances and removed the dictatorship from the company, of the company. The companies cannot do as they like anymore.

As you know, this is a game of hierarchy. Harassment mostly happens because there are people on higher posts who know how they can use their position to manipulate not just your consent, but also opinion of various others. Obviously, if a case is reported against a CEO then no one can come to your rescue, how many ICCs one might form.

However, the minute an external individual is included, the game changes. Now the investigation can be more accountable and reliable. Moreover, whoever is right can come with lesser apprehensions about a fair trial. It might not sound very convincing, but believe me, it becomes a lot more comfortable for the victims if they are able to see a ray of hope in the expert member.

So, in my opinion, it is inclusion of an expert member in ICC which is the real game changer.

What are the most important qualities an ICC member or an expert member on a panel should have?

Sonal Mattoo: Having worked in this industry for 20 years now, I can tell you that the won’t be supportive, most of the time. This non-support can be in form of excessive poking, causing some sort of a hurdle in investigation or probably tampering with evidences. As an ICC member, you need to ensure that all these challenges are dealt with patience and in the due process, the principles of natural justice are not violated.

Secondly, an ICC member is vested with the power of a civil court and it is important for individuals to understand the responsibility it has. I have known people who take it just for granted and only remain on panel because a director “friend” asked them to do so, it is only unfair to have someone like that to be on the board. It is also very important that the person is devoid of any biases, they should be very neutral in approach. This ensures that both the parties are equals in the eyes of the panel and they are adjudicated without personal biases.

Apart from all of these, experience and expertise is very necessary. You see, it’s a lot of pressure to work under and a person without experience or sufficient knowledge might just break down. I also believe that one must be fairly acquainted with legal know-how of sexual harassment prevention. One needs to know the correct interpretation of statute. It is very important for the ICC to understand and implement the letter of law, not just by words but the very spirit of it. However, having said that I would also like to emphasise, that more than law they need to know how to deal with human behaviour. It is a matter of two lives after all.

What do you think are the major challenges that an individual faces when they want to make a full-time career in sexual harassment prevention?

Shalini Khanna: I think to start with, Indian corporate sector right now is evolving. You do not find a lot of companies with best practices committee. Though there are various companies which have a dedicated person for sexual harassment and gender diversity matters but those are 1 in 100. We are dealing in cases where the companies only approach us in case they need us for compliance, or to formulate their policy which is more or less a one-time affair. In most of the other cases, an expert member is only called in case of an emergency. Mostly the companies entrust this responsibilities on HRs, who try to manage everything, but I don’t know how far they understand the legalese. So, unsupportive or ignorant companies are the number one reason for it.

Secondly, there is a lack of experience and practical knowledge to deal with such a sensitive issue. I can give you a lot of examples in that regard. Most of the times, evidences and witnesses are absent. People have become smart. They do not leave any electronic trace for their wrongdoings. For e.g., if an employee is called in a manager’s cabin once everyone has left from work and the manager tried to make a move, how can anyone ever make out what happened? What do you do in such a case? Unless you have dealt with cases like that or have knowledge about human behaviour finding a way out of it is very difficult.

Lastly, the Indian mindset is also a major issue. People are ready to take a stand for animals, but the minute the word sex gets associated with it, it becomes a taboo. I’ll tell you an example, which still makes me wonder at times. I was called as an expert member for a very complicated case. The mere look of it told us that we needed a legal expert on this. I approached a friend of mine, who is a human rights lawyer to join us on the case. You won’t believe, she said, “I am not comfortable to be on panel!”

If a human rights lawyer can be uncomfortable to get on a panel, you can imagine how possibly difficult it might be for others to make a career out of it.

What are the challenges of being an expert member or other challenges that you face on an everyday basis?

Sonal Mattoo: I think to start with there are not sufficient women as chairpersons of these committees, thus there are certain situations when the victims do not open up and speak properly about the issues. Especially when the company is not ready to support the ICC, it is a task to make the other individuals on board to understand the relevance of a victim’s comfort.

Even law has a lot of loopholes which companies often worry about. For example, while the law states that there has to be an annual report that needs to be filed, but there is no clarity with the format or filing procedure. The evidence to show that a company is compliant or not is also very subjective and needs clarity. The matter, for example, needs to be reported to a District Magistrate or district officer. In case of any absence, there is no clarity as to whom to approach next.

These are some of the various issues that most of the experts face on a day to day basis.

What do you think can be done to improve the current scenario?

Devika Singh: I think the most important way to improve the situation right now is to train the ICC. Apart from the expert member, most of the members of ICC are untrained and clueless. They are just there because of the position they hold which is very fatal in some cases. The whole system fails because of it. The judgments are not very clear and each case is different to go by the word of law. If the expert member is active, great, but in case that person is a namesake individual or just there because he/she happens to be a friend of the director or somebody, god save them in the time of adversity.

The awareness programmes need to be conducted very often for not just all employees but mostly for top-level management. It has to trickle down from the top to make the environment safe for everyone. I would highly recommend for companies to take up online courses, at least for the member of ICC or HRs to implement the law better and make the workplace a safer place to work for women. Nothing can be better than practical knowledge and adequate understanding of the law can make POSH a success story in India.

(Disclaimer: The views and opinions expressed in this article are those of the author and do not necessarily reflect the views of YourStory.)