8 years on, poor compliance with sexual harassment law at workplace

While many women in formal employment can take advantage of the Prevention of Sexual Harassment Act, the majority of India's women, who work in the informal sector, have no such access

Almost 24 years after India got its first guidelines to prevent sexual harassment at the workplace and eight years after the government enacted a law for it, there are few publicly available data on how efficient these mechanisms are, an IndiaSpend review found. In fact, the government maintains no centralised data relating to cases of harassment of women at workplaces, the Parliament was told in July 2019. Also, 95 per cent of India's women workers are employed in the informal sector and find it difficult to access legal mechanisms to report sexual harassment at workplace, experts told IndiaSpend.

On February 17, a Delhi court acquitted journalist Priya Ramani in a defamation lawsuit filed by former editor and sitting member of parliament M J Akbar for accusing him of sexual harassment in 1993.

"The woman has a right to put her grievance at any platform of her choice and even after decades," said Judge Ravindra Kumar Pandey in his judgment acquitting Ramani of defamation.

He also noted that, at the time in 1993, she had no avenues to seek redressal for her alleged harassment, as India formulated the Vishaka Guidelines to prevent sexual harassment at the workplace, and provide women a forum to complain to, only in 1997. The guidelines evolved, 16 years later, into the Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act, 2013, commonly known as the Prevention of Sexual Harassment (PoSH) Act. However, eight years since its enactment, the government has still not published any information on how effectively this law and its committees function.

While Ramani's acquittal in the defamation case is a victory for women trying to report sexual harassment, it is not the norm. Often, women are not able to access the law. Those who can access the law face several institutional and cultural challenges. Hundreds of thousands of women, such as informal sector workers, are largely excluded institutionally from accessing the PoSH Act. Also, no government body tracks the law's implementation.

Meanwhile, independent research has found low overall compliance. The majority (56 per cent) of 655 districts did not respond to requests to provide data on the functioning of local committees to look into workplace sexual harassment and 31 per cent of companies surveyed in 2015 were not compliant with the law.

"Of course, there is a huge pushback against women's truths," Ramani told IndiaSpend.

Many women excluded from the law

The PoSH Act requires that any company with more than 10 employees set up an internal complaints committee including a senior woman employee, at least two other employees and a member from a non-governmental organisation familiar with issues of sexual harassment. Every district also ought to create a local complaints committee to receive complaints from companies with fewer than 10 employees and from informal workers, including domestic workers, street vendors, construction workers, home-based workers such as those involved in weaving, accredited social health activists (ASHAs) and community health workers. As many as 95 per cent of India's working women (195 million) are in the informal sector.

Under the law, any woman can file a written complaint either to the internal or local complaints committee within three to six months of the incident of sexual harassment. The issue could be resolved between the woman and the respondent "through conciliation" or complaints committees could initiate an inquiry and suggest appropriate action based on the findings.

Women can also file complaints through the Women and Child Development Ministry's Sexual Harassment electronic–Box (SHeBox), an online complaint platform for all women workers, launched in November 2017. Complaints filed through this platform are then passed on to either the internal or local complaints committee.

The majority of India's women workers find it difficult to access these redressal methods, especially SHeBox, given that the number of women who use the internet in India is low. Women's internet use varies widely across states, with 77 per cent women in Sikkim reporting that they had used the internet compared to 21 per cent women in Bihar, according to data from India's latest National Family Health Survey.

"The existing legal frameworks so far offer protection to women who already have some privilege... for example, if they work in the formal sector," said Nikita Sonawane, a lawyer and founder of the Criminal Justice and Police Accountability Project. "However, women in the informal sector are largely also from marginalised communities of class and caste. They do not find space in the law or the women's movement."

Sometimes institutional processes are unclear even for women in the formal sector. In 2019, when a woman working in the office of the then Chief Justice Ranjan Gogoi tried to lodge a sexual harassment complaint against him, it caused a dilemma for those who had to look into the matter. The case revealed a blind spot in India's existing rules--while a Supreme Court employee could complain about sexual harassment against her co-workers and seniors (including judges), there is no mechanism for someone to lodge a sexual harassment complaint against the Chief Justice of India. All existing civil and criminal guidelines are a deadend for such a victim.

District complaint committees do not function well

District local complaints committees are not functioning meaningfully, found a series of Right to Information requests by the Martha Farrell Foundation, a New-Delhi based organisation working on gender issues, in 2016 and 2017.

The foundation had asked how many local committees are constituted in each state and their members, contact details, timings of the committees and how many cases they had received and resolved. But 56 per cent of the 655 districts they reached out to did not respond to the requests. Only 29 per cent said they had local committees to look into workplace sexual harassment and 15 per cent said they had not set up a committee yet.

Although the law requires that these committees should be headed by a woman, and should have at least five members including one from an NGO, this was not followed on the ground, found the Martha Farrell Foundation.

How the law is supposed to be monitored

Every year, internal and local committees have to file a report to the district officer with details on the number of cases filed and their disposal, as per the PoSH Act. "The appropriate Government shall monitor the implementation of this Act and maintain data on the number of cases filed and disposed of in respect of all cases of sexual harassment at workplace," the Act says.

The district officer should also forward a brief on all annual reports of companies with details on compliance to the law to the state government so that they can maintain a record of the data, according to the Ministry of Women and Child Development.

"The responsibility to maintain data on the number of cases filed and disposed of in respect of all cases of sexual harassment at workplace, which are established, owned, controlled or wholly or substantially financed by funds provided directly or indirectly by the State at District and State levels rests with the concerned State Governments," Minister for Women and Child Development Smriti Irani told the Parliament this February.

What data are available?

Central or state governments do not publicly compile and release data on how many companies and districts comply with the guidelines and have committees, the number of complaints filed and the outcome of these complaints. Data exist in disparate and scattered public sources.

The Centre has provided information only when asked questions on sexual harassment at the workplace in Parliament, but these data are piecemeal and difficult to find, an IndiaSpend investigation found. The replies also do not specify how many districts and/or companies the data are compiled from.

SHeBox had received 612 complaints--196 from the central government, 103 from state governments and 313 from private organisations, as per a government response to the Rajya Sabha in July 2019. But there is no method to track the complaints year-on-year. For instance, another government response to Parliament last February mentioned that nearly 70 per cent of the 539 complaints filed between November 2017 and February 2020 were pending.

The National Commission for Women (NCW), an autonomous body constituted by the Indian government, also receives complaints of sexual harassment against women in the workplace. In 2018-19, the NCW received 88 complaints of sexual harassment at the workplace.

Crime records data on sexual harassment

Under the PoSH Act, neither the woman nor the accused has legal representation, the courts are not involved in the inquiry or to take cognisance of any crime. But women can separately file police cases.

In 2019, 505 cases of "insult to modesty of women at the work or in office premises" were recorded by the National Crime Records Bureau (NCRB), an increase of 5 per cent from 2017 and of nearly 800 per cent from 57 cases in 2014.

Lack of data on sexual harassment in the police

Even after a parliamentary committee was constituted to examine the working conditions of policewomen, including sexual harassment at the workplace, in India in 2013 and 2014, there is little data on the issue.

The committee's 2013 report said that the government was asked to collect and submit data on whether policewomens' sexual harassment complaints were resolved. At that time, the government had responded that complaints were being heard well but had not provided any data. The government also said that they had been unable to set up sexual harassment cells well enough.

The committee asked the government to start collecting more data around sexual harassment but the report on actions taken does not confirm that data collection was initiated by the police. The government had issued an advisory to states to deal with sexual harassment strictly, but did not ask for any new data or information to be gathered or submitted.

The only data submitted to parliament on sexual harassment came from the Central Industrial Security Force (CISF), which reported 19 complaints of sexual harassment in 2012. Further, four CISF personnel were dismissed from service between 2007 and 2014, two were compulsorily retired and 20 received reduction in rank or pay, after allegations of sexual harassment against them.

Despite the lack of data, the parliamentary panel concluded that all guidelines related to sexual harassment are "being scrupulously implemented in police organisations."

How better data could help

Private companies collect data by looking through annual reports of companies that are publicly listed. For instance, Complykaro, a company that helps organisations implement the PoSH Act, found that cases reported to the internal committees of 44 NIFTY companies reduced by 2.6 per cent to 657 in 2019-20, as compared to 675 in 2018-19, Mint reported in September 2020. But these data are not accessible to the larger public.

In 2015, 31 per cent of the companies surveyed by the trade association Federation of Indian Chambers of Commerce and Industry (FICCI) and the consultancy Ernst and Young were not compliant with the PoSH Act, while 35 per cent were not aware that non-compliance could result in penalty and 40 per cent had not trained the members of the internal committee.

Even with companies that comply with the law, there will be different levels of compliance, said Meghana Srinivas, CEO of TrustIn, a Bengaluru-based company that helps businesses implement PoSH legislation. "Only 9-12 per cent of companies must be fully compliant," she estimated. "Even companies that have good intentions do not know how to go about complying with the law, how to train their employees on the committee and how to decide in cases of sexual harassment. A larger company with resources could have a dedicated person on PoSH legislation, but a smaller company is unlikely to," she said. Even the qualifications of the external member on the internal committee vary as there is no certification or empanelment to become a member.

Further, different local committees require companies to file information on PoSH compliance in different formats and ask for different information. "There is no standardisation," which makes it harder for companies to comply, said Srinivas.

The government should publish data on the number of sexual harassment cases received and resolved by local district committees and also conduct a nationwide audit on how effective these committees have been, recommends Human Rights Watch, a New-York based nonprofit, that published a report in 2020 on how informal sector women in India are left without redressal for sexual harassment.

Better quality data would help analyse trends and inform standard operating procedures for such cases, which would help better implement the law, Srinivas said. Data could also inform district level policies on sexual harassment as well as help governments decide where more resources should be allocated, she added. For instance, if there is a greater need for a district committee than an internal committee, more money could be allocated to that.

The judgement in the Priya Ramani case is likely to have ripple effects across India by giving more legitimacy to women who speak out on any platform," and hopefully by making the law more aware of a woman's trauma and therefore extending the time given to a woman to report the case, Srinivas said.