Sunday, August 02, 2015

Hushed voices

The Hindu, Sunday Magazine, Aug 2, 2015

The Other Half
  • For every case reported, there must be literally scores that are either dismissed as frivolous, or never reported.
    Can a woman who complains about being sexually harassed by her boss actually succeed in getting justice? This is at the heart of the controversy, furiously discussed in the media, after the governing council of The Energy Research Institute (TERI) announced that it had decided on a successor to its current head, R.K. Pachauri.
Pachauri has been embroiled in a sexual harassment case after a 29-year-old researcher at TERI filed a complaint with the Internal Complaints Committee (ICC) against him. The ICC upheld her complaint but the matter did not end there. Pachauri managed a stay on its ruling by moving the Industrial Disputes Tribunal and eventually even managed to get permission to resume work at TERI. Despite the serious charges, he was not asked to step down but allowed to take leave. Even today, he continues in his position and will only handover when his replacement takes over.

What lesson can women who are harassed by powerful men draw from this? One, that even if their organisation has the mandatory ICC and they take courage into their hands to file a complaint, a favourable ruling is not enough. While the ruling of the ICC can be questioned and challenged, as has been done by Pachauri, there is a moral dimension that the organisation has to take on board in such instances because the complainant is usually powerless while the accused is powerful. If the status quo continues, it is the complainant who will crumble, not the accused. Unfortunately, the governing council of TERI has sidestepped this by not acknowledging the ICC’s ruling.

Also, although both have access to the law, it is the powerful that are better placed to use, and even manipulate, the law. This is the story of the Indian justice system. We see it played out repeatedly. A depressing illustration of this is in the data released by the National Law University about people on death row in India. The startling statistics tell us the ugly story of how the law functions. Based on interviews with convicts condemned to death, the researchers found that 75 per cent of them belonged to lower and backward castes, were extremely poor, or were from religious minorities. In fact, 94 per cent of those awarded the death penalty for terror related cases were either Dalits or from religious minorities. We also know that the majority of undertrials in our jails fall into similar categories.

Does this mean that only the poor and the marginalised are criminals in our society? Do the rich and the powerful not commit any crimes? What this data tells us is that even if the latter commit crimes, they know how to work the system to their advantage. The others are either unable to do so because they do not have the resources to get able legal help, or are marked because they belong to a particular religious minority and thus are labeled even before being tried.

Apply this to sexual harassment cases. Union Human Resource Development minister Smriti Irani recently stated that between April 2014 and March 2015, 75 sexual harassment cases had been registered in higher educational institutes. Of these 27, including the TERI case, were in Delhi.
These cases are just the tip of the iceberg. For every case reported, there must be literally scores that are either dismissed as frivolous, or never reported. In innumerable instances, women prefer to quit a job rather than taking on the challenge of pursuing the charge of sexual harassment. And they can hardly be blamed given that the process can break a person.

Vrinda Grover, the feisty human rights lawyer, makes an important point about the process of getting justice in such cases when she says, “From investigation to prosecution to trial, the entire system works overtime to subvert justice. At each stage the investigation is compromised. Evidence is not taken on record. Eventually, when the prosecution fails to prove the case due to shoddy and complicit investigation, the loud chorus of false cases begins.”

So the Pachauri case illustrates several crucial issues around sexual harassment. One, it is imperative that both men and women are made aware of what constitutes sexual harassment as laid down in the law. Two, that the system for seeking justice needs to be in place, such as the mandatory ICCs. These must not be token. They must have credibility so that victims of sexual harassment feel confident to approach them or the police.

And finally, when the harasser is a powerful individual, the woman will need support to survive the process of following through on her complaint as the decks are heavily stacked against her. Here the media, including social media, and civil society can play a role in building up moral pressure on organisations.

Yet, all of this will not be enough if we do not change the way our criminal justice system works. Only if that happens can women who are sexually harassed hope that there is a light at the end of a very dark tunnel.

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