The #MeToo movement has been criticised for not following the ‘due process of law’. Lawmakers like Udit Raj and none other than BJP president Amit Shah have argued that mere verbal statements without furnishing any proof cannot be enough. The argument is that formal complaints should be filed and legal recourse should be sought.
In the multi-dimensional paradigm of the #MeToo, the absence of formal complaints is often used to discredit the entire movement. The argument, however, is flawed at multiple levels because it disproportionately places the burden on the complainants, completely ignoring the glaring systemic problems and failures.
While it is eventually the courts who shall be last adjudicator of guilt or innocence, one cannot completely divorce the social and cultural factors while making the argument of due processes.
These socio-cultural factors are relevant to law because the multiple voids in the patchy legal framework give ample opportunity to the male-dominated structures to seep in and sweep away objectivity and sensitivity of the intended law from the existing system.
These factors coupled with the laid back approach of the government lead to work places where predators have a free run and women are trapped in the vicious cycle of silence, shame and harassment.
For example, though the Supreme Court judgment mandated internal complaints committee for addressing sexual harassment complaints, there is a complete lack of the oversight from the state, especially on private institutions.
Not just private institutions, there is no record of how many district courts, government offices or quasi-state institutions have formed the committee. While the 2013 law gives detailed account of the responsibility of the employers and how they must address the complaints, without any social audit by the state, the law remains notional not real.
Not just on private or public employers, the 2013 act also mandates that there should be a ‘Local Complaints Committee’ at the district level to ensure that the women working in unorganised sector have recourse and can be protected from sexual harassment. There is currently no data from the government to ensure that the law is implemented or how many states or districts have implemented the law.
Many voices in the social media have criticised the movement for being ‘urban’, ‘elite’ and non-inclusive of rural women. The argument can only be addressed if the state and the Centre come forward with the data on whether the district level committees have been set up and how many complaints have been received.
So while the state has not complied with its legal obligations and refused to give any voice to women working in informal sector, it’s absurd to make urban voices accountable for the glaring lapse.
It must be very clearly laid down that the remedies in law are two fold - the civil and the criminal. The first step towards a civil or a criminal recourse lies in the 2013 Act.
Civil Law
The legislation is a descriptive one that entitles women employees to seek damages for pain, mental trauma, loss of opportunity, etc. This is a welcome move because the tort law in India has conventionally not recognised emotional injury.
But it fails to prescribe how the damages must be calculated by the internal complaints committees. It is also argued that awarding damages is a judicial function and cannot be done by a quasi-judicial body. There are no guiding judgments on how such damages should be calculated.
One of the most problematic areas of the law is where it gives room for ‘conciliation’ only at the request of a woman. It is problematic because this provision leaves it open for organisations to threaten, intimidate or create pressure on complainants to settle. Justice Verma Commission was deeply critical of this provision and called it violative of the right to dignity of a woman.
The present 2013 law also does not explicitly establish the responsibility of an employer when the organisation fails to comply with preventive measures mandated under the law. There is limited liability of employers, and hence, there is not much incentive or concern for large private organisations to implement the Act. Claims in tort law become untenable for complainants due to overburdened and insensitive courts and scope of limited damages.
Criminal Law
The offence under Indian Penal Code 354A for harassment was introduced after the protests that followed the gang-rape of Nirbhaya in 2012. Offence can be made under IPC 509 (Outraging the modesty of a woman) and 354A (Sexual harassment) where the maximum punishment is three years with a fine.
It’s important to note that these provisions must be read with section 468 of the Criminal Procedure Code, which lays down a limitation period. Once the alleged crime has happened it needs to be reported within three years, only then a court can take cognisance. There are other provisions of the CrPC, which allow high courts to look at special circumstances or where the complainant can prove that she was availing other measures for redressal. The limitation period, however, is overlooked only in rare cases. There is no limitation for an offence which has punishment for more than three years like rape.
The present cases and testimonies of the victims throw up a precarious legal situation.
Some instances pre-date the Vishakha judgment and most of them are before the 2013 statute came into being. While some instances may fit into inappropriate and condemnable behavior, they might not have an element of criminality. Under the above highlighted scheme of law, the complainants will have to fight legal battles.
It’s only obvious that all complainants will be slapped with defamation suits. The declarations of the women and child development minister to set up a special panel of judges might be able to answer as to what one should do for the cases which pre-date Vishakha judgment. More importantly, evidentiary troubles will only make the drudgery of the legal process worse.
(Views expressed in the article are personal)
Comments
0 comment