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When women complain: The many tribulations & rare trials in speaking out about sexual harassment [via Mint]

Huh, what is this sexual harassment think you speak of?
Huh, what is this sexual harassment think you speak of?

Sexual harassment appears to be everywhere these days, yet it was always so. Complaints, on the other hand, seemed to be rarer only a few years ago.

A series of high-profile complaints of sexual harassment have hit the headlines in recent months, with cases against R.K. Pachauri, former chair of the Intergovernmental Panel on Climate Change and ex-director of The Energy and Resources Institute (Teri); rape and harassment allegations by a staffer at Greenpeace India, which resulted in the resignations of two executives last week; and an assistant professor of chemistry at St. Stephen’s College who is currently fighting criminal charges brought by a Delhi University student. Going further back, the then editor of Tehelka magazine, Tarun Tejpal, was accused of rape by a staffer in November 2013.

Also in November 2013, the Supreme Court formed a committee to deal with complaints of sexual harassment on its premises, after a petition by advocates in July 2013 and an allegation against a former judge; in December 2014, it instituted a separate procedure for complaints against judges after allegations made by a junior district judge in Madhya Pradesh against a senior judge.

Something has clearly changed. One big change is in the law, which was significantly amended in 2013, but that is only half the story.

In 1996 the Supreme Court judgment in Vishaka Vs. State of Rajasthan created the first-ever set of guidelines in India for employers to deal with sexual harassment, which included establishing internal complaints committees, headed by a woman, with at least half its members women, and with one external member from an NGO or other body “familiar with the issue of sexual harassment”.

While Vishaka had the force of law under Article 141 of the constitution, its absence from the statue books and the lack of any explicit sanction for violators, meant that compliance was woefully low.

Gauri Rasgotra, Delhi-based partner at law firm Cyril Amarchand Mangaldas who has advised companies on sexual harassment laws, agrees that back then many companies' policies fell short of Vishaka with many multinationals' merely mirroring their different global standards.

Procedural punishment

In late 2006, a director at KPMG's Mumbai chartered accountancy practice complained that she was sexually harassed by her boss. She has argued that at that point, even 10 years after Vishaka, KPMG did not have an internal complaints committee that was Vishaka-compliant but merely an internal process where “you may speak to your reporting partner, staff partner or HRD professionals”, according to the staff manual at the time.

After complaining, she says she felt a backlash and alleges that her employment was unfairly terminated on 30 November 2006 for being low on the company's “core values”, despite having had positive appraisals until then.

She has fought for the past eight years to seek an independent inquiry into her allegations after she lost faith in KPMG's internal processes after her termination.

To oppose her, KPMG fielded law firm AZB & Partners in Mumbai, which instructed high-calibre senior advocates such as Indu Malhotra. The complainant's first lawyer advised her to approach the Maharashtra State Commission for Women (MSCW), followed by the National Commission for Women (NCW), which heard both parties and told the MSCW to hold an inquiry within 60 days of October 2007.

In April 2008, without an end to the inquiry in sight, she filed a writ in the Bombay high court, which KPMG followed with a counter-writ the same month against the MSCW, alleging bias by one of its members and that such inquiry would interfere with the criminal case against three KMPG officers, of which the police took cognizance in July 2007.

She initially won an interim order in the writ petitions in July 2008, with the court asking the MSWC conclude its hearing within six months, but KPMG quickly filed a special leave petition in the Supreme Court staying the MSCW's inquiry.

The case bounced back to the NCW, which set up a new inquiry committee in 2013 to hear her allegations and KPMG's version of events. KPMG instead approached the Bombay high court, winning a stay of the NCW inquiry. In 2014 the court quashed the NCW proceedings, agreeing with KPMG that the NCW's “terms of reference” had become too wide and that the criminal case was pending.

The complainant says that the criminal case has “meandered”, despite filing an unsuccessful criminal writ in 2013 seeking expedition of the trial; the accused filed a criminal writ in the Bombay high court in April 2015 to quash the criminal trial.

Around the same time she found out in a response to her RTI, that the MSCW couldn't trace 1,000 pages of her file, two years after criminal forensic lab reports went missing.

On top of the financial hardships of lawyers' fees and being an out of work single mother, the legal system has now left her without any remedies, she says.

AZB & Partners declined to comment when contacted.

Old wine, newly bottled

The law changed in 2013 with the passing of the Sexual Harassment of Women at Workplace Act 2013, which was passed after the Verma Committee's recommendations for reform in the laws protecting women from sexual violence and harassment.

And although for the most part the Act simply codified Vishaka with a few additional bells and whistles, it has had an effect.

“What has changed is that [companies] have become more compliant with the law,” says Rasgotra.

She claims that the vast majority of companies now have internal complaints committees (ICCs), as mandated by the Act.

How does it work?

Under the Act, ICCs have 90 days in which to conclude their inquiry with recommendations for a company's chiefs or board.

If either the accuser or accused are aggrieved by the action (or inaction) of the company, they can launch an appeal to the state-level industrial tribunal, which has a district officer dealing with such appeals who has the power to punish non-compliance with the Act.

That is in effect a legal process that will take at least several months, though it's too early to know how quickly complaints are dealt with at that level.

Delhi advocate Ashish Dixit is one of the lawyers acting for Pachauri in part of his sexual harassment defence, which he says was only the second-ever ICC complaint that has reached the tribunal level in Delhi. Dixit secured a stay of the ICC's finding against his client that he should pay compensation to the accused – the amount to be decided by the organisation's board – while the tribunal would decide.

Dixit argues that the ICC process under the Act is principally flawed because the upper time-limit for ICC inquiries must be no longer than 90 days. “That's why it becomes so difficult (for ICCs to investigate complaints properly), because in this haste, they sideline all the principles.”

Furthermore, he says that on principle it is not fair to require more junior employees to sit in investigation of their bosses, whom they may have personal grudges against that might try to address through the ICC.

On the other hand, the ICC process can also be unfair to victims, argue others. “In a situation where your victim is a subordinate – who is probably more dispensable to the organisation (than the harasser) – the committee is still comprised of the committee where people feel loyalty to the organisation,” says Delhi-based advocate Mihira Sood. “There is a lot of pressure (on victims) to not escalate it to that level.”

The Verma Committee, which Sood was a part of, had recommended that external, independent employment tribunals be set up to hear complaints, modelled to what happens in the US.

And as it stands now many states have not even set up appeals tribunals, says Sood, so effectively women still have no recourse if their employer does not deal with a complaint satisfactorily.

“That's why so may people are going to the media today because that's the only alternative,” she says, which in turn can cause a backlash against complainants because in theory the laws on the books protecting them are very strong. “Today, we are in a position to critically evaluate the law and we should not be afraid to admit that it is flawed.”

The Verma report also sparked a toughening of the criminal law, with several offences such as stalking and voyeurism, on top of the old catch-all of “outraging the modesty” of a woman, being available to victims of harassment via police complaints.

But, argues Sood, there is no clarity on how that should interact with complaints made inside organisations.

The Act is unclear about the responsibility of employers to inform the police of a complaint, and this is compounded by the fact that Section 354 (assault with intent to outrage modesty) is a cognizable offence, which can result in situations such as in the Tehelka case, where the complainant did not herself want to take it to a higher level. “Where does it really leave the victim's choice?” asks Sood. “I think when you make it so heavy – that once she files a disciplinary committee complaint it necessarily goes to the police as well… some might see it as empowering (but) many women don't want some something so harsh.”

Degrees of falsehoods

Overall, the law in allegations of sexual harassment as well as several criminal offences against women, is biased heavily in favour of the complainant: a credible account by a woman will carry larger evidence value than the man's rebuttal, intended to forestall a stalemate of he-said-she-said that is so common in cases of sexual harassment or violence on top of the organisational difficulties women have traditionally faced in bringing complaints.

But because the burden of proof essentially gets shifted onto the man to prove that he is not guilty, the spectre of false complaints is invoked by a vocal minority and defenders, which can include tropes such as the vengeful woman spurned by a man or sleeping her way to the top, or even outright honey traps where a woman is paid to topple a powerful man by his enemies.

When asked for gut feeling estimates, advocates spoken to by Legally India estimated variously that anything between “no more than 1 per cent” to “under 40 per cent” of cases before ICCs could be so-called false complaints although none of them would have access to any authoritative or representative data.

Corporate lawyers or litigators are often called upon to sit on ICCs as the sole external members and they can see a good cross-section of complaints.

The partner at a national law firm who declined to be named, has sat in on ICCs hearing around 15 cases, and estimates that so-called false cases are rare and could maybe make up 15 to 25 per cent of complaints. However, she adds, that percentage varies considerably depending on the company: companies with larger and younger workforce, such as a BPOs, tend to have proportionately more complaints than, for example, a manufacturing company.

Motivated complaints for career advancement are very rare and she has never come across one, says the partner, and a majority of the 'false complaints' are “love affairs gone sour”.

Sood says she's sat as an external member on around two dozens complaints of ICCs and has personally not seen any outright concocted cases. However, she adds that a problem is that “different people understand sexual harassment very differently”.

“In a couple of unfortunate cases the woman did feel genuinely harassed where I don't think that was the intent (from the harasser) at all,” she relates, but notes that whether there was intent to harass under the law is actually irrelevant which can result in outcomes that are sad.

“I also think there's a large part of the outrage against the Act or against what people see as misuse of the Act, is simply behaviour that people have seen as alright all along, but that genuinely isn't,” she says. “A large part of the misuse argument comes from resistance to any behavioural change.”

Defensive strategies

The Act is still so new that no serious litigation has come up yet relating to it, but an issue that plagues sexual harassment appeals or complaints to the courts as much as everything else in the legal system, is the glacial pace of the process.

What used to practically be written in the proverbial textbook of sexual harassment and offences defences – smearing the complainant and her character – has become less popular and perhaps even counterproductive, though it is by no means extinct, as advocates ML Sharma and AP Singh controversially proved in the Delhi gang-rape-murder victim in the India's Daughter documentary.

Dixit argues that this can end up working against an accused, since it can nowadays raise public and judicial sympathies with the victim: “I don't believe in that kind of strategy… It gives the indication that you have nothing else (to your case) and that's why you're criticising the complainant.”

However, slowing down the process via appeals, stays and adjournments can remain a strategy effective in deterring complaints or shutting down legal remedies.

“The problem in the entire judicial system of India is, there can be delays,” says Dixit. “Whenever you think of strategising as a complainant, you have to bear in mind that things don't get delayed.”

Like other cases, civil or criminal sexual harassment-related complaints in the Delhi judicial system, which is faster than the national average, can take three or four years, agree Dixit and Sood. It can include cross examination and “all the stress of litigation that comes along with it”, says Sood, and “very often it doesn't seem like an attractive option at all” for victims.

Cultural shifts

Unfortunately there is still a distinct lack of statistics gathered in this area, with each company being under an obligation under the Act to disclose the internal complaints received in its annual reports, but not all doing so or being transparent about it.

But at least anecdotally complaints seem to be on the rise, despite the difficulties in the system.

One big factor other than purely a strengthening of the law is that it and the culture has made women bolder.

“Things have changed. People have become more confident and environments in offices are becoming more women-friendly,” says Rasgotra, though she guesses that women who raise their voices are still in a minority of those affected.

“If you feel something is happening, collect evidence,” she advises, “If they (complainants) have evidence, nobody can ignore the complaint. Ask people around you, speak about it. Don't be silent about it, people will help, you will also find men supporting you.”

“But you have to talk about it. If you suffer in silence, it's very difficult to help.”

On the other hand, if a complainant finds the internal process lacking, even under the 2013 Act, seeking the help of judicial and quasi-judicial bodies to help can be a long and potentially fruitless experience, as borne out by the former KPMG director.

“If after eight years, a complainant who has diligently followed a due process of law and the directions of the court is unable to get a fair inquiry and trial before a quasi-judicial and judicial body based on merit, it is speaking of the justice delivery system,” she says. “Such an experience is a deterrent for anyone to approach the courts for justice.”

This article was first published in Mint. Mint’s association with LegallyIndia.com will bring you regular insight and analysis of major developments in law and the legal world.

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