Pankaj Sharma: Are Indian workplaces ready for the sexual harassment law?

pankaj-sharma-441The case of the beleaguered editor of TehelkaTarun Tejpal, the allegations by law interns against two retired Supreme Court judges and scores of others that followed in private and public workplaces have, for the first time, brought the topic of workplace sexual harassment on to the front pages of the print media and on the wider debating platforms of the electronic media.

All these incidents have suddenly gained unparalleled potency and created what many see as a highly volatile challenge forIndian workplaces.

The issue of workplace sexual harassment is a grey area even in western economies that have a potentially large and assimilated female workforce compared with India. However, unlike western countries where organisations accept workplace harassment in normal parlance, in India it was always frowned upon as a non-issue.

According due importance and bringing in much-needed constitutional sanctity to this important topic, the Union government promulgated the Sexual Harassment of Women (Prevention, Prohibition, and Redressal) Act, 2013. The Act borrowed heavily from the Vishakha guidelines of the Supreme Court, in words if not entirely in spirit.

While the sceptics see the issue going the 498-A way (the anti-dowry section, which many, even in the justice system, believed to have been widely misused) and doom-mongers predicting scepticism about hiring women in workplaces, the supporters feel it provides women workers with their much-needed constitutional right to work.

However, a confused law and an utter lack of operational systems within the Indian workplaces themselves pose a serious challenge, as well as defeating the very purpose of the law, which could have played an important role in incrementing gender assimilation in the Indian workforce.

Much in line with similar occurrence-based jurisprudence, the sexual harassment Act comes into play in situations of purported occurrence of workplace sexual harassment. As such, there can only be two situations; the occurrence or non-occurrence of the incident. No matter what the situation, the law clearly states that either of the two situations be handled according to the defined service rules of the organisation.

An interesting paradigm is that none of the organisations with which I interacted have or ever thought of including workplace sexual harassment in their service rules and are still clueless about this. This leaves a massive gap in the effective methodology of closing the justice and system loop.

In India, the human resources function had remained confined to transactional issues such as hiring and firing, salaries, promotions, statutory compliances and so on, but not those pertaining to harassment issues, which is a newer area.

Assuming that service rules were set in place, the next issue of importance is ensuring the sanctity and neutrality of the complaint investigation process. The law mandates forming an internal complaints committee (ICC) to manage any workplace harassment complaints. Failure to do so could lead to the closure of the company’s business operations.

As the name suggests, an ICC largely constitutes internal employees who may be subjected to or be influenced in real case scenarios, especially if the perpetrator is a person from the top or higher hierarchy. Justice J S Verma, the author of the Vishakha guidelines, had expressed scepticism on this suggested structure, not to mention the absence of protection for the ICC members themselves for any potential victimisation in case of an adverse decision against a powerful boss.

However, the rights and duties of the employees and the organisations remain the most important issues of all. It is pertinent to mention that according to the law, the first point of resolution is within the organisation and not outside of it.

Thus, the resolution largely depends on robust internal systems, privacy and the ability to safeguard the reputations of the aggrieved, the accused and the organisation. A fair and neutral investigation system, the right and opportunity to express, better and equitable work conditions and suggested exceptions, as the case might be, are other important components of a robust system.

All of the above underline the need for a robust rights and duties system, that did not appear to exist in any of the organisations that I came across in India, nor are these issues on their prospective radar.

This, even though the absence of these components poses an utter risk of loss of reputation and enforcement actions that might be compounded since the complaints can then be treated in multiple enforcement regimes, even to the extent of moving it outside the purview of workplace harassment.

It is, thus, pertinent to say that even if we overlook the other shortcomings of the law or workplace systems, these points are enough to derail not just the creation of an equitable workplace in India, but deeply impact the Indian economy since the organisation would need to spend more time managing workplace sexual harassment issues than on revenue generation activities.

Till then, Indian workplaces will witness either false cases or not provide fair justice in real cases of workplace sexual harassment, ultimately defeating the larger issue of positive gender assimilation.