Even judges aren't safe: Power is no protection against sexual harassment

It’s invariably a rough crowd at the Traffic Court–not fun to deal with for any magistrate, male or female. Lawyers cussing over minor traffic fines is all in a day’s work. Yet, when she passed an adverse order for a minor traffic offence, the young woman magistrate was unprepared for the viciousness of the verbal assault made by the male lawyer in open court against her. “Teri aukaat kya hai (who the hell are you)?” he is said to have yelled in Hindi in open court. “Teri chaddi phaad ke rakh doonga (I will rip off your panties).”

Something snapped in her and she lodged an FIR. But two months later there was not even a chargesheet. Other judges and lawyers spoke solicitously: How would she face the ‘shame’ of a trial? A ‘reconciliation’ would be better, they counseled.

But the woman magistrate will not relent, even though the case has been stuck for nearly two years now. Senior lawyer Vrinda Grover has been appointed amicus curie and everyone is trying to work out a solution that will restore, at least to some degree, the magistrate’s dignity.

New Delhi: Power is no protection against sexual harassment. From the actor to the magistrate, nobody is immune.

Credit Hollywood moghul Harvey Weinstein for bringing home the universal and everyday reality of workplace sexual harassment that transcends professions, geography and, sometimes, even position.

In the lower courts, lawyers can speak disrespectfully–addressing a woman judge with tu or tum (you)–or pass sexual slurs and personal remarks, not directly to the judge but within her hearing, said a woman magistrate (not the one mentioned above) who asked not to be named.

“Most of us ignore it,” she said. When they speak up or complain, women magistrates are often cajoled by the bar and even their male colleagues on the bench to ‘compromise’, accept an apology and just move on. “I am not aware if there is a forum for judges to report sexual harassment complaints,” said the woman magistrate.

“Male judges are also a part of society. In the higher courts, they are simply not sensitive to what is happening,” she said.

In 2014, a woman judge in the district and sessions court of Madhya Pradesh made charges of sexual harassment against High Court judge S K Gangele. A three-judge Supreme Court committee found “insufficient evidence” against him.

In April 2015, 58 Rajya Sabha MPs signed a motion seeking Gangele’s impeachment and the then Rajya Sabha chairman Hamid Ansari appointed a three-member team of jurists that submitted its report to Vice President M. Venkaiah Naidu in September this year. Meanwhile, the woman judge quit her job back in 2014.

“If this is the state of affairs for women judges, then you can imagine what it’s like for women lawyers,” said Delhi lawyer Vrinda Grover. “Young women lawyers are particularly vulnerable as the legal profession is based on mentorship by senior or experienced lawyers. They very quickly learn which chambers to avoid.”

Yet, conceded Grover, there is today an acknowledgement and recognition of the problem. An Internal Complaints Committee (ICC) has been constituted for districts courts and the high court in Delhi to address complaints of sexual harassment, at least for lawyers.

The increasing presence of a larger number of women as judicial officers, lawyers and court staff has also helped normalise the presence of women in courtrooms, she said.

“Of course, some of us are branded as feminist activists, and the notion of equality and dignity will take time to become the overarching common sense of all in the profession,” said Grover.

When she joined the profession in the late eighties, there were very few women practicing criminal law, recalled Grover. “I faced all manner of sexual harassment,” she said. “From male lawyers dropping love notes on my table to rubbing against me as they passed by and, once, even chasing me all the way home in a car.”

“Interestingly,” said Grover, “I have never been sexually harassed by a client, only by male colleagues.”

Why there are no data on sexual harassment at the workplace

As women flood the legal profession, join the IT sector, fly planes and become fire-fighters, visibly it might appear that more and more are entering the workplace, breaking glass ceilings and shattering stereotypes.

In fact, the reverse is happening and India’s female labour force participation fell from 34.8% to 27%–the lowest in South Asia after Pakistan–in the two decades preceding 2013.

Our ongoing nation-wide investigation shows that the reasons range from family constraints to the burden of unpaid care work.

Is there also a link between workforce participation and sexual harassment? As the number of sexual harassment cases rise and as women continue to fall off the employment map, it is not unreasonable to ask.

But, “there are no studies so it is difficult to establish a correlation between sexual harassment and female labour force participation”, warned Anagha Sarpotdar, a researcher who wrote her doctoral thesis on the social and legal aspects of sexual harassment at the workplace. The only evidence we have is anecdotal.

Rebecca John, a senior advocate who has worked on more cases of sexual harassment than she can remember–not all end up in court–said in her experience almost nobody who complains is happy with the result of an inquiry. Some just quit in exhaustion and disgust. And there have been those who’ve tried to kill themselves.

A young news anchor from a TV channel survived her suicide attempt, but her powerful employers ensured that she would never get another job in media. She now works in another city in another profession.

A woman researcher who in February 2015 complained against R K Pachauri, her then boss at TERI, remains out of a job as she awaits justice. In an interview to IndiaSpend published on October 29, 2017, she said she was too traumatised to even enter an office cabin.

Many quit because there is gossip in the teams that makes them uncomfortable, said lawyer Sonal Mattoo who serves on several Internal Complaints Committees (ICCs) and helps frame guidelines, train and resolve complaints.

But “some quit jobs rather than complain”, said Mattoo. When she reaches out to them to ask why, responses range from “I was too junior, he is so senior, who would believe me” to not knowing who to reach out to and fear of reputation.

A January 2017 survey by the Indian National Bar Association (INBA) of 6,047 employees–the largest conducted so far in India–found that victims of sexual harassment came from all backgrounds, ages and professions. Offenders could be vendors, suppliers, managers, supervisors and, of course, peers. And sexual harassment ranged from lewd comments to an outright demand for sexual favours.

Even a cursory look at the data is alarming. The INBA survey found that 70% of women didn’t report sexual harassment.

In 2010, the Centre for Transforming India found that 88% of 600 women employees in the IT and BPO sector between the ages of 19 and 45 across five cities said they had been sexually harassed.

As many as 44% of 200 women managers–144 of whom were post-graduates and above, employed in private organisations–said they had heard of a case of sexual harassment in their own workplaces while 15% said they had personally experienced it, according to a June 2017 study in the Economic & Political Weekly.

Despite the small sample size of the study, conducted by Punam Sahgal, a former professor with IIM (Lucknow) and Aastha Dang, a research scholar at Women and Gender Studies, Ambedkar University, Delhi, detailed interviews with these women reveal a malaise that appears to have gripped workplaces.

Sexual harassment, the women reported, ranged from behavioural (sending lewd text messages, staring at breasts, inviting her up to his room to ‘get to know each other better’ during out-of-town work trips) to verbal (discussing intimate details of his marital problems). Physical harassment was, at 23.3%, the least type of sexual harassment experienced.

Offenders were slightly more likely to be peers and colleagues than supervisors. Harassment by subordinates was minimal, at least amongst this sample. And incidents of sexual harassment were accentuated during off-sites, office parties and field trips.

 

Source: Sexual Harassment at Workplace, Experiences of Women Managers and Organisations, Punam Sahgal, Aastha Dang, published in Economic & Political Weekly, June 2017.
Note: Sample size: 30 of 200 women managers private organisations who faced harassment

 

Source: Sexual Harassment at Workplace, Experiences of Women Managers and Organisations, Punam Sahgal, Aastha Dang, published in Economic & Political Weekly, June 2017.
Note: Sample size: 30 of 200 women managers private organisations who faced harassment

 

The women also said they found that very often, more than the incident itself, “dealing with the complaints mechanism was far more nerve-racking”. Respondents were often unaware of how the process worked and, moreover, found the evidence-based justice system cumbersome.

Even when organisations act against offenders, there is a predisposition to take action as a face-saving exercise rather than out of any conviction that the sexual harassment warranted strict action, stated the report.

Why domestic workers almost never complain of sexual harassment

The genial-looking dadaji would follow her around as she went about her work. He would creep up behind her, grab her while she was mopping the floors and even knock on the locked door of the room where she slept at night. When the rest of his family went out, he would find some excuse to stay back at home. Because she worked as a live-in maid, there was no escape. It was hell, she said. She was 15 years old.

“I desperately needed the money and the job,” said X, one of the six children of a rag picker and, at the time, the main income earner of her family. She couldn’t even confide in her mother. “What would she have done? I had to work, send money back home. When my father died the job became even more important,” she said.

When she confided to the other maid, a part-timer, she shrugged it off. “That dirty old man used to harass her too, but at least she didn’t have to live there,” said X.

She told the old man that she would complain if he didn’t back off. He threatened her, said he was well connected and could implicate her in a theft case. Who would the police believe?

When she finally quit her job after close to a year, her employers held back Rs 2,000 in lieu of notice.

In 2013, following massive nationwide protests against sexual assault, Parliament enacted the Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act. The law came 16 years after the Vishakha Guidelines, issued by the Supreme Court, following the gang-rape of a social worker employed by the state government of Rajasthan.

Discussion around the law and sexual harassment in the workplace tends to be limited to an office or corporate setting. Yet, nearly 94% of India’s employed women work in the informal sector, of which about 20% work in towns and cities. Nearly half of these women are the sole income-generators of their families. Just 7.5% are registered in trade unions.

 

Source: Sexual Harassment at Workplace, January 2017, Indian National Bar Association

 

On paper, the law against sexual harassment is supposed to protect all women in jobs, even those in the unorganised sector. But on the ground, reality is very different.

“How will a domestic worker even prove she is employed? What is the proof of employment? Identity cards are given only to a few working in condominiums, and the card signifies only that they have received police clearance and, therefore, are safe to employ,” said Nandita Pradhan Bhatt, senior programme manager, PRIA (Society for Participatory Research in Asia).

At a workshop in October 2017 on sexual harassment for domestic workers in New Delhi organised by PRIA and Martha Farrell Foundation, the women spoke about the range of everyday sexual harassment.

Male employers watch pornography in their presence or leave porn literature lying around. Others come out of the bathroom in just a towel, if that at all. There are those who just leer and stare while the women go about their jobs. And there’s outright physical assault.

Sometimes the offender is not the boss but other male staff at the houses where they work. Security guards are habitual offenders, they said.

Under the law, all women in the workforce can file a complaint of sexual harassment. This includes women employed in the unorganised sector, including agricultural and domestic workers.

These women can file a complaint with the Local Complaints Committee that is supposed to be constituted by a district officer in every district. According to the Martha Farrell Foundation, an advocacy, only two such committees had been formed in Delhi; Gurgaon had just one at the mini secretariat, said Bhatt.

“How is a domestic worker supposed to go and lodge a complaint at the district headquarters when her place of residence and place of work are sometimes at considerable distance from each other?” asked Bhatt. “She has no information about who she can complain to and how.”

Unsurprisingly, there are no formal complaints. Those like X who support their families tolerate sexual harassment for as long as they can. Then they quit. In most cases, the women are loathe to tell even their families.

“I don’t know of even one domestic worker who has ever filed a complaint of sexual harassment, leave alone received justice,” said Bhatt.

Domestic workers, particularly women domestic workers, are a growing section of workers in the informal sector of urban India, stated a 2010 report Domestic Workers: Conditions, Rights and Responsibilities by Jagori, a nonprofit.

In 2004-05, there were 3.05 million domestic workers in urban India, an increase of 222% from 1999-2000. This increase, stated the report, was linked to a shift from an agrarian-based economy to a manufacturing and service-based economy.

It is this army of domestic workers that has enabled many middle-class women to take up jobs while they provide cooking, cleaning and child-rearing services for low wages and almost no job security–not even against sexual harassment.

‘Nobody seems to know what to do about it’

For 17 years, she had worked in the human resources department of the publishing house. When it was acquired by a foreign publishing company, her job profile changed and she began reporting to the managing director. She had heard rumours about him but these were whispers around the water-cooler.

It was around then that her marriage began to unravel. He would keep her engaged in long discussions that had nothing to do with work. “I’m your mentor, you can tell me anything,” he’d tell her. “As a man, I can provide you with happiness in your life.” He called her his “professional wife”. He advised her to masturbate.

She asked to be transferred to the Mumbai office. He sent her a Valentine’s card.

She began recording his phone conversations. If they had to travel together on work, she would book herself on a different flight. At an office party, he got drunk, misbehaved. She complained to the foreign head office. In July 2016, after the company set up an ICC, she made a formal two-page complaint, handing over the phone recordings and the Valentine’s card. There were eight witnesses on her side.

The ICC ruled that there was no sexual harassment, but promised to take ‘action’.

Instead, the company took away all her work. She asked the global CEO to reinvestigate the case. Her parking space was taken away. Those who reported to her were told to not copy her on emails. She was no longer called to meetings. She would sit in office for nine hours without any work and then pack up and go home.

When she put in her papers in March this year, she did not receive her full gratuity.

“Nobody can understand the trauma of what you go through when you’re sexually harassed at work,” the woman said. “If, like me, you’re single, people will judge you and say, ‘oh she’s doing it for the money’. The legal system is frustrating. For lawyers, you’re just another case.”

“There is no awareness, nobody to direct or guide you. Within the profession, you’re branded as a ‘trouble-maker’ and nobody will hire you. My career in publishing is over after nearly 20 years,” she said. “But I will fight it and am now pursuing a law degree so that I can take this to its logical end and get justice.”

 

Source: Reflections on the State of Women Safety in the Workplace quoting National Commission for Women, EY’s Fraud Investigation & Dispute Services and FICCI, March 2017

 

Listening to the woman, it’s not hard to understand why so many are silent about what seems to be a universal experience.

Women tend not to report for one of five reasons: Not being sure about what constitutes harassment; lack of faith in the complaints process; fear of retaliation; a belief that they can handle the situation on their own; and social stigma, found a March 2017 report by EY’s Fraud Investigation & Dispute Services and FICCI.

But mainly women do not speak up because of the power relations within workplaces. When a woman reports sexual harassment by a boss, her career will definitely be affected, said Sarpotdar. “The nature of sexual harassment is such that the predator is usually more powerful than the complainant. This is the reason why many women end up quitting jobs.”

Is anyone keeping count of the women who simply fall off the grid because they dared to speak up? “There is no data,” said Rebecca John. “But I know of cases of acute and extreme harassment where women don’t go back to work.”

A woman asserting her legal rights is viewed with negative feelings, said John. “They may have the necessary qualifications but are not able to find jobs.”

 

Source: National Crime Records Bureau 2015 and 2014

 

Regulations framed by the Securities and Exchange Board of India (SEBI) require listed companies to disclose the total number of sexual harassment complaints they receive.

For 2016-17, Wipro reported a total of 116 cases; there were 88 at Infosys and 65 at TCS. Amongst the banks, State Bank of India had 21 cases and Kotak Mahindra Bank 19. Tata Steel had 26, Bharti Airtel had five and Mahindra & Mahindra four.

The law mandates that any company with over 10 employees must have an ICC of four people, one of whom must be an external member from an NGO that works in the area of women’s rights. Companies are also responsible for sensitising employees and creating awareness of redressal mechanisms.

The initial years, said Mattoo, were about mere compliance with the law, a ‘tick in the box attitude’. More recently, however, “I now see companies vocally and visibly spreading awareness”. This, she said, makes compliance easier. “Companies willing to invest in training and letting a professional third party have access to its employees have led to higher accountability.”

But, said Sarpotdar, government monitoring is lax. “Sure, there is a mechanism for online complaints but the government is acting as an employer, not a monitor. In the private sector and in academic institutions, there is practically no monitoring,” she said.

On November 7, 2017, the ministry of women and child development extended its online complaint mechanism, She-box, to include the private sector in addition to the government sector. “This does seem to be an effort by the government towards monitoring the performance of ICCs but it should not become ineffective like the online complaint mechanism of the National Commission of Women,” said Sarpotdar.

The global #MeToo campaign has brought home the reality of sexual abuse in general. “What it tells us is that it is a far greater problem than we are willing to acknowledge,” said John. “The tragedy is that nobody seems to know what to do about it.”

(Namita Bhandare is a Delhi-based journalist who writes frequently on the gender issues confronting India.)

Reprinted with permission from IndiaSpend, a data-driven, public-interest journalism non-profit organisation.