Will this landmark defamation case empower MeToo survivors to speak out?
The practical challenge now is to support victims of sexual harassment, legally, professionally and emotionally, as they speak out
It would have been a routine workplace sexual harassment awareness session, with me droning on into the Zoom void about a law that is still a long distance from universal comprehension, leave alone compliance. As a short film played, I checked Twitter for news of the MJ Akbar defamation case verdict. Priya Ramani had been acquitted. Wonderful.
It took 17 years for Rupan Deol Bajaj to get a verdict in her pre-Vishakha sexual harassment complaint against K.P.S. Gill. Bhanwari Devi is still waiting for justice from the Jaipur High Court. Internal committees often have inconclusive hearings and confidence levels are low. So many women, in so many contexts, have waited for the vindication and validation of this judgment. So really, what were most of us expecting yesterday afternoon? Not good news.
As I read tweets reporting the verdict reasoning, my heart and my eyes filled.
The court’s recognition of the impact of sexual harassment on victims is important. We are still a society where we first question the complainant—Are you sure this happened? Are you sure you did not misunderstand? What did you do to provoke him? Most of us forget how hard it is to share that we have been abused or harassed and how traumatic to narrate the harassment over and over.
The victim may keep believing that she is at fault and victim may live with that shame for years or for decades. Most of the women who suffer abuse do not speak up about it or against it for simple reason “The Shame” or the social stigma attached with the sexual harassment and abuse. (page 90)
The court recognised in so many words that sexual abuse harms the dignity and self-confidence of a person; this being so how can we expect that person to stand up confidently and file a complaint against someone far more powerful?
The court’s empathy for the circumstances of abuse is also a powerful statement of solidarity.
The Court takes consideration of the systematic abuse at the workplace due to lack of the mechanism to redress the grievance of sexual harassment at the time of the incident of sexual harassment... or their option to not lodge the complaint of sexual harassment due to the social stigma attached with the sexual harassment of women. (page 89)
The verdict pointed to the fact that sexual harassment usually takes place behind closed doors and also, that a victim may not understand what is actually happening to them. This is a perceptive observation. Harassment is enabled by huge inequalities and the victim is likely to be younger, more junior, working in a more menial or marginal capacity or belonging to a marginalized or minority group. Furthermore, when the harasser is a person in a position of trust or authority, the abuse comes as a shock. Society teaches women to second-guess themselves all the time. The court’s reference to the mental trauma caused by and stigma attached to making sexual harassment allegations is framed as a call to action.
The time has come for our society to understand the sexual abuse and sexual harassment and its implications on victims. (page 89)
A second significant element is the invocation of fundamental rights—Article 15, the Right to Equality and Article 21, the Right to Life and Personal Liberty. We repeat at every training that workplace sexual harassment is a violation of these rights but today this court also underscored the right to speak out—whenever you are ready, on whichever platform is accessible.
The woman has a right to put her grievance at any platform of her choice and even after decades. (page 90)
However, this differs from the law as it stands. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 imposes a three-month time limit on the filing of a complaint. Will this judgment apply to the provisions of this law? If it did, this would pose practical challenges for the Internal Committee. For instance, if either the complainant or the accused are no longer in the organisation, how could they be made to appear for an enquiry? That is just one of the logistical hurdles in the fact-finding process.
If the judgment stands separate from the law, then lawyers, activists and others who work in the area of workplace equality or legal compliance will have to grapple with how the two are to be reconciled.
If a person can speak out on any platform, is that to be considered tantamount to a complaint? We will need to know whether an Internal or Local Committee must then take cognizance of it. At the moment, we say it is outside the purview of the law and so it is not possible. If you open these doors, where does the reach of a Local Committee or Internal Committee end? Already under-resourced, how will they pay for the costs of an expanded reach?
This was not a trial to ascertain whether sexual harassment had taken place; it was a defamation suit challenging the accused person’s right to make an allegation. One element of the complainant’s argument was that he was a reputed professional.
The society should understand that an abusive person is just like rest of the other person and he too has family and friends. He can also be well respected person of the society… (pages 89-90)
The court’s recognition that a person of social status can be a harasser and that the right to reputation is not more important than the right to dignity, is important. One reason why women hesitate to complain is that we lump all “virtues” into one basket: he is a good manager, he cannot be a harasser; he is so famous, he cannot be a harasser (to someone like you); he is upper caste, he would not touch you; he sings so beautifully, he cannot be a harasser; he is brilliant, he cannot be a harasser. If he is so ‘virtuous,’ you must be the problem.
Well, the court today affirmed what women know, anyone can be a harasser. In fact, the more famous, the more likely. Harassment is an exercise of entitlement, made with the confidence of impunity. The court gets this, unlike much of our society.
The attack on the character of sex abuser or offender by sex abuse victim, is the reaction of self defence after the mental trauma suffered by the victim regarding the shame attached with the crime committed against her. The woman cannot be punished for raising voice against the sex abuse on the pretext of criminal complaint of defamation as the right of reputation cannot be protected at the cost of the right of life and dignity of woman as guaranteed in Indian Constitution under article 21 and right of equality before law and equal protection of law as guaranteed under article 14 of the Constitution. (page 90)
In other words, if the right to an equal and safe workplace is a part of the fundamental rights to life, liberty and equality, so is the right to speak out about harassment, which this judgment defines as an act of self-defence. Moreover, a woman has the right to speak out on any platform that she wishes; she does not have to do it only through legal procedures.
This invocation of fundamental rights is truly heart-warming. It is, however, likely to raise questions about the rights of those who are being accused. In the interests of justice, we will need to find a via media between a ‘due process’ that silences victims and declaring open season for allegations. Summary creation of rules will not resolve this tension; we need to discuss this openly and democratically to find a fair solution.
The verdict felt like a win for all the women who bravely spoke out about sexual harassment experiences and then paid a professional and legal price for it. It also felt like a win for those of us who have been working to create awareness about gender-based violence, including workplace sexual harassment, with the view that recognising the problem helps you eliminate it. But that triumph is for today.
When tomorrow dawns, we will have to tackle the practical challenge of supporting victims as they speak out, legally, professionally and emotionally. We will have to honestly and calmly address questions raised about fairness and justice. We will continue to chip away at patriarchy and other systems of inequality that enable entitlement, harassment and impunity.
Swarna Rajagopalan is a political scientist, author, peace educator and founder of Prajnya, a non-profit that works in the area of gender equality.
FIRST PUBLISHED18.02.2021 | 07:00 AM IST