Sexual harassment at the workplace and educational institutions is mired in complex power dynamics that often silence women. In order to subvert the power dynamics that hamper the effectiveness of the internal committees, the aims and objectives of these civil redressal mechanisms need to be reassessed.
The criminal justice system often perceives sexual harassment as a private wrong. This understanding is often insufficient. The Supreme Court formally recognised this in Vishakha v State of Rajasthan (1997) when a lower-caste woman was raped at her workplace. The Court recognised that these complaints could be more effectively addressed within institutions (workplace and educational), since women would not have to navigate through the daunting portals of the criminal justice system. The judgment, thus, rendered guidelines that mandated the constitution of Internal Committees [IC] (erstwhile Internal Complaints Committees) which would resolve claims of sexual harassment. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 [POSHA, 2013] was passed to enact these guidelines.
Despite these measures, sexual harassment at the workplace remains staggeringly under-reported. The reason that the women who came forward in the List of Sexual Harassers in Academia (LoSHA) circulated by Raya Sarkar in 2017 chose to remain anonymous was because of structural inabilities in approaching the institutional redressal mechanisms (Chowdhry and Deep 2017). The recent allegations against Chief Justice Ranjan Gogoi is also a horrific example of how women are victimised, even after the incident. In these scenarios, institutional remedies are often ineffective in the face of a huge power imbalance (Women in Criminal Law Association, 2019).
This power imbalance is one of the main reasons why ICs are still inaccessible. So in addition to implementing the mandate of POSHA, 2013, the ICs’aims and objectives should be recalibrated towards a restorative model of justice. This model should inculcate a feminist understanding of “due process,” where sexual harassment is conceptualized as a form of sex- based discrimination, which is a form of discrimination that is caused by gendered oppression.
This essay makes recommendations that seek to improve the current model of ICs without delving into their larger desirability. As a consequence, the recommendations are of practical use only for duly constituted ICs, and cannot address the issues of sexual harassment in the informal sector. ICs are yet to be firmly established in most institutions, and sexual harassment remains largely unreported. This has resulted in a lack of empirical or primary sources for analysing the functioning of ICs. Therefore, the theoretical arguments in this paper derive several of its assumptions of the functioning of ICs from academics who have worked with these bodies and from my experience with amending the IC’s code at my law school.
Internal Comittees were envisaged as a civil redressal mechanism to avoid replicating the access barriers that the criminal justice system presented (Saksham Committee Report 2010). This body would work with its own personalised set of procedures which would have to comply with POSHA, 2013, and the principles of natural justice (Rule 7(3), POSH Rules, 2013).
One would expect that the establishment of such radical processes of adjudication of “criminal misconduct” would allay the concerns of women, and provide them with a safe working environment. However, some troubling statistics on the accessibility of ICs calls for serious introspection on why women do not consider formalised ICs as reliable avenues (Kanishk 2018).
Owing to the paucity of empirical studies and analysis, the problems with ICs have been demonstrated by several noted academicss who were a part of the process by which ICs were conceptualised, and have been functioning (EPW Engage 2017). Three major problems have stood out.
First,a culture of silence is generally witnessed when it comes to reporting sexual harassment at the institutional level. A study conducted by the National Family Health Survey (NFHS 2015–16) found that only 0.9% of instances of sexual harassment gets reported. Of the universities surveyed by the university grants commission for the Saksham Committee report, 83.5% declared that they have never received a sexual harassment complaint. In 2000, a survey was conducted in the United States to understand why women do not report sexual harassment. Four broad reasons were found: an expectation of an adverse consequence, a fear of a failed inquiry process, a fear of embarrassment and a desire to not hurt the harasser (Summers 2000). These complex and paradoxical factors, that have hindered reporting were also observed in India (EPW Engage 2017).
Second, the inquiry process continues to be a deterrent, in spite of the accommodative prospect offered by POSHA, 2013, which enabled a civil inquiry redressal mechanism that would take into account the power dynamics prevalent at a workplace. However, POSHA, 2013 and subsequent rules provide very few guidelines as to how the inquiry must be conducted, with the exception of mandating compliance with the principles of natural justice (Rule 7(3), POSH Rules). The Saksham Committee guidelines had made attempts to ensure that the due process employed by ICs remains distinct from the due process employed by the legal system. However, Leena Pujari, a sociologist who has been a member of several ICs, observed that the lines between the two tend to get blurred during implementation, and the nature of “due process” in ICs replicates that of a “universalist and homogenous” legal system, in the absence of separate guidelines (Pujari 2017).
Monica Sakhrani, one of the members of the panel led by Flavia Agnes, who submitted drafts for the Sexual Harassment at Workplace Bill, criticised the Act for leaving the scope of inquiry vague. The POSH Rules simply say that IC inquiries should be conducted “in accordance with the principles of natural justice.” The members of the panel had envisaged a process of inquiry that could account for a fair balance between the rights of the complainant, and the rights of the accused, by involving possibilities of fair process requirements such as written cross-examinations (Sakhrani 2017). The Delhi (Ashok Kumar Singh v Delhi University 2017) and Kerala (LS Sibu v Air India 2016) High Courts upheld these novel processes of cross-examination which, considering the sensitivity of the inquiries in question, are in written form, and afford anonymity to the complainant. However, since the legality of these interpretations are still in dispute, and the ICs operate on the implicit framework that their findings must pass muster in a court of law, the committee members refrain from exploring new methods and often adopt processes that blur the lines between the criminal justice system and the ICs (Pujari 2017).
Third, as argued earlier, the absence of accepted inquiry procedures provides enormous scope for the respondent to simply appeal the findings of the ICs, as principles of natural justice can be claimed as breached on broad grounds of fair hearing and bias (Sakhrani 2017). The unclear and developing law on conducting inquiries has resulted in the inquiry process being transformed from a conflict of structural issues of gender and labour rights to a reductive private affair between private parties (John 2004).
Therefore, in order for the ICs to be effective, within their current paradigm as institutional civil redressal mechanisms, the understanding of sexual harassment needs to be changed. The complainant’s needs have to be accounted for, along with a reflective understanding of the power dynamics of the institution.
Rethinking Sexual Harassment
The understanding of sexual harassment needs to be reconceptualised as a gender-based harm instead of a private wrong, if it has to be effectively understood. This understanding must inform the procedure of the ICs. The concepts of justness, fairness and reasonableness, that are central to due process need to be probed from a feminist lens in order to understand what values they further, when translated into action (Farina 1990).
Catharine MacKinnon (1982) has formulated an understanding of sexual harassment as a perpetuation of sex-based discrimination. Her views on addressing sexual harassment as a claim of discrimination have been critiqued by some authors who favour tort-based adjudication (Paul 1990), but the latter are unable to factor in the systemic nature of the harassment.
Gender, as MacKinnon argues (1989), has been created as a consequence of the sexual subordination of women, where they have been constructed as an “other” to the dominant male sex— the male. The male standpoint has dominated civil society and become the objective standard for all inquiries. This social power manifests itself in institutions governing social interaction, including the law. The law is structurally constructed along the male point of view, and does not account for a woman’s experiences that are different from, and rooted in, their oppression to men. Therefore interpersonal relationships are viewed from the lens of “difference” from the male norms, without looking at the social distributions of power. In the public-private divide, issues of sexual harassment are considered as personal and hence removed from the full extent of legal intervention. Through this divide, sexual violence is seen as directed at an individual, instead of an entire gender (Goldfarb, 2004: 517).
Sexual harassment has been internalised, and contained in structural forms of male power, that fests itself in terms of economic, cultural, and social dominance over women. Sexual harassment at the workplace, when viewed as an isolated instance of misconduct, as opposed to a pandemic that has structural gendered roots, invariably turns the complaint process into an adversarial process that doesn’t seek to locate the power structures which silence women. A better approach would be to perceive sexual harassment as sex -based discrimination which the employers have a responsibility to protect against and similarly articulate in their respective institutional rules that regulate sexual harassment at the workplace. In the absence of the same, the available mechanisms fail to subvert the hostile environments and workplace dynamics that render their remedies meaningless. To do this, the remedies that are offered by the sexual harassment laws in the institutions have to be re-assessed as they have the potential to reshape the nature of rights (Resnik 2004: 249).
There is a need to overhaul the methods that are employed by ICs in order to minimise the access barriers that contribute to the culture of silence. The civil rules that regulate the functioning of the ICs need to account for these feminist methods that seek to enquire into power structures, and account for them when dispensing justice. These methods can allay the concerns of women who have often not turned to ICs because they are afraid of a failed inquiry process. In addition to this, women sometimes hold back because they do not want to hurt the harasser, or end up with an undesirable remedy (Summers 2000). A restorative model of justice could address the unique nature of sexual harassment at the workplace, as it aims to ensure a healthier work environment.
A restorative model of justice is oriented towards individual, relational and social harm caused by an offence. It focuses on rehabilitating and reintegrating the victim and the offender into society (Walgrave 2008). It is particularly desirable for ICs because of the methods it seeks to employ.
A restorative process seeks to involve the stakeholders as much as possible, and understand the nature of harms suffered, and the consequent needs, in order to restore a certain kind of environment (Zehr 2002). The main question that is asked is, how can the harm be repaired, and not necessarily how the offender can be found guilty (Walgrave 2008: 623).
This approach will be particularly useful in instances of sexual harassment at institutions, as victim-support and relational harm is kept at the heart of the process. It can also account for gender-based discrimination better, because it casts sexual harassment as warranting restorative action from the offender and the community.
However, this model should not be considered as an entirely mediation-reliant process where the harms are negotiated between the parties. It can be employed in different degrees that could include coercive processes. The uniqueness would be the flexibility to experiment with these different methods with effective restoration as its primary aim (Van Ness 2002). This flexibility in method would be the right avenue to introduce feminist methods of inquiry that are centred on the interests of the complainant and what she seeks from the inquiry.
In the context of ICs, the civil rules seeking to end sexual harassment need to be reflective of an intrinsically and uniquely social situation that is present in their workplace. The process of inquiry must not be limited to testing whether the rules are sex-specific or gender-neutral, but must be wired to end male supremacy by grounding the rules in women’s experience of subordination. A similar effort can also be extended in eliminating access barriers created by caste and class. Some ways to do this are inclusion of work environment-sensitive confidentiality regulations, provision for interim reliefs, presence of support persons for the complainant in cases of grave instances of sexual harassment, gender-sensitive methods of inquiry and reliefs that are cognisant of the complainant’s dual interests as a woman, and as a worker/student, at the institution who would potentially have to interact with the respondent even after completion of the inquiry.
Care must be taken to ensure that women do not hesitate to resort to the committees, because they are afraid of their stringent requirements, disproportionate punishment or repercussion that makes them internalise narratives of silence (Sakhrani 2017). The remedies need to be reflective and subversive of the harassment and the complex power dynamic that influences an inquiry. Positive obligations must be placed on institutions to ensure that the harassment has ended after the inquiry is completed.
The value of the restorative model lies in its aim to correct the offender, and its consequentialist approach, which sees punishment as a means to a restorative goal to observe gender equality at the workplace (Walgrave 2008: 649). There have been apprehensions of including feminist processes within retributive justice paradigms as it is often mistakenly conflated with a mediated process (Frederick and Lizdas 2010: 24). However, a call for retributive ends to justice is not a blanket call to replace all inquiries into a mediation model, where the offender is merely asked to feel remorse. Several feminist-restorative hybrids have experimented with addressing gender violence by coupling it with restorative aims of widening the circle of responsibility (Pennell an Kim 2010: 184).
In the context of ICs, a Braithwaite-an model of imposition of restorative justice could be imposed. In such a model, an effort for treating most cases through voluntary restorative processes could be made by envisaging a pyramid model for escalation of punitive remedies. As per the nature of the offence and the disposition of the offender, a majority of the cases could be placed at the bottom of the pyramid. A reduced space for punitive deterrence could be occupied by offenders who need to be influenced to participate in restorative process and the top is reserved for the irrational offenders who merit escalated punitive approaches in order to meet the ends of deterrence and restore a sense of safety within the community (Braithwaite 2002). This also allows for a greater scope for a bottom-up approach with a larger onus on the institution to identify such situations, that is important to tackle the systemic nature of sexual harassment. A focus on imposing active responsibility on the offenders to repair the harm caused, instead of stopping at imposition of guilt, would go a long way in ensuring that gender equality is really observed at the workplace.
The Way Forward
Reconceptualising sexual harassment at the workplace and in our everyday life is going to require an effort that will have to look beyond our present understandings created by formal masculine intelligibility. Overhauling and claiming of legal structures by the feminist process is a long and arduous process that will only be a product of organic change. Even if all ICs were to start reflecting on these processes and institutions to create restorative mechanisms that account for the inequalities faced by women while addressing sexual harassment laws, the domineering presence of the criminal justice system as an avenue of appeal will continue to exist. However, revolutionary processes and organic change are not mutually exclusive or mutually limiting. A constant reworking of our understanding of sexual harassment at workplaces could have a broader impact on the criminal justice system’s understandings of due process and feminist adjudication.
In the present socio-legal structure, the onus is placed on the woman to prove that she does not have a safe working environment as opposed to making this a legal responsibility of the employer and is, therefore, not a real commitment to social equality (Sakhrani 2017). A feminist process of formulating rights and its interpretations in the formulation of civil rules, coupled with a definite aim of restorative justice that informs the process, could change this.