INTERNAL HURDLES IN LODGING SEXUAL HARASSMENT CASES

INTERNAL HURDLES IN LODGING SEXUAL HARASSMENT CASES

On Feb 11, 2018 I read a news in the Hindu news paper that a lady journalist has complaint against another male journalist for sexually harassing her since 2016. She also complaint against 3 other male journalists who conspired with the main suspect and send her obscene or threatening messages. All four work in reputed news papers. [read the news item here—“Scribe accuses ex-colleague of sexual harassment”, https://www.thehindu.com/news/cities/Delhi/scribe-accuses-ex-colleague-of-sexual-harassment/article26232216.ece] 
Often we have heard that a woman has not lodged a sexual harassment complaint though she was facing it for last many months, some time years. A number of explanations can be convincingly given. I share with one because of my personal knowledge.

A father has approached me regarding a sexual harassment case of his daughter, D1, who is major. D1 used to work in a private company in Madras in 2013. The director of the company (suspect here), wanted some sexual favour, which she declined. The suspect Directr and the Bss of the company continued to harass her and therefore she left the job in 2013 itself. She joined another company which operates overseas with the idea that being in a foreign country, may be, the suspect stops harassing. She wrote a review of his company mentioning that one of the top executive of the company deliberately hires girls with evil intention. The suspect, after knowing about this review threatened her that he will see her and also her parents, younger brother n sister who stays in Bombay. In other words, a vendetta, and teaching a lesson type message. He continued sending vulgar messages through sms, though infrequently. In 2017 he did so, in 2018 he did it may be 3 4 occasions. The girl warned him of a police complaint. In 2019 the suspect director has written to the HR of the overseas company where now the girl is working outside India. The director has sent the photograph of the girl to HR mentioning that they are looking for this girl against whom an FIR is registered in Madras. He has sent similar messages to her facebook friends. The messages also contained wild and baseless allegations which were not only false but defamatory and derogatory to her.   
My natural question was why did not she lodge a complaint earlier, ie 2013, 2014, 2015 etc. You need not be genius to predict answers which are understandable. There may be five (or more) reasons of delay or inordinate delay--  

     i.        The culture of overlooking,

   ii.        Apprehension of counter reaction and vendetta from director of company.

 iii.        I came to know that she also tried complaining in cyber cell but cyber cell complaint portal is not user friendly. It needs some cell phone no, and OTP, and OTP not delivered. It happens that you try once and twice and then you leave it for future and ultimately give up in frustration and helplessness.

 iv.        Most importantly, the fear of joblessness. As she has disclosed the hostile environment of the company in public domain,  the corporate world would think, she might be a problem to any company because a company or (even academic institutions who boast to be independent and respect freedom of thought and expression) who writes review in public domain. Writing review about your own employer is dangerous idea.     
The fear of losing job from the company is one reason. The chances of getting job also decreases because the perception and policy of hiring company is that “avoid such woman.” A lady that raises voice against sexual harassment must fight for justice but is not suitable for company. Because she might raise voice for other aspects of justice also like working hours, ethics, promotion etc. Such ladies (or gents) are to be avoided in company. A company needs gentle-man and gentle woman. By raising voice she has conveyed that she cannot be pushed to wall and therefore not suitable for position and power. Such persons would not be very much helpful in making  profit and revenues for company. This perception is also because of certain apprehension, like will it be ok to ask the woman to meet targets, can the company put purely work related pressure. The apprehension is not because the boss in company wants some physical favoure or because she will make false complaint. This is also because the company or institutions feel uncomfortable dealing with these woman (or men) who may raise voice. Friends are also alert that recommending this girl to a company or firm means not usual recommendation. In other words, not only present employment is at risk but potential of future employment also becomes gloomy. Various companies also seek details of past employment. They do verify the credentials and take feedback from past employer. An employee who complains or goes in public domain like social media against unhealthy practices of companies donot get positive feedback.

   v.        Sometime the relationship and close friendship (not necessarily physical) with male and female colleagues or with senior colleague is consensual which goes for 2 3 4 years with a few stages of making  them unfriendly or maintaining distance, or conveying him his limits, breaking up and making up, restoring relationships. In these cases also when the male makes unwelcome gesture or advancement, the woman avoids or has a type of guilty feeling. That also prohibits woman to complain because she feels that she had provided breeding ground for some unwelcome, obscene unwanted turn of the relationship.

What is the way out?

There is hardly any (a+b)²  type formula or quick fix solutions. Each situation is itself a different fact situation. However, certain proposals can be made---

1. Enhancing employment opportunities for woman who complaint with credible evidences. Governments, NGOs or individuals may launch a website for such women where the opportunity of employment may be explored. However, this is not going to help a daily wager, a domestic servant, a lady worker in a shop and likes.
2. If the State has enough pockets like Nirbhaya fund, each such complainant may be given some compensation or some monthly sustenance (or compensatory) allowance for a period of six months.
3. Interest free loans or (low interest loan) may be offered by governments, NGOs or individuals.

4. Lawyers may provide free legal aid and ensure access to effective legal proceedings write from filing a complaint or FIR to fighting cases in court. The apprehension that legal course is going to be another financial burden also serves as an impediment.

5. There must be some effective mechanism to address the issue of jurisdiction. There must be some integrated system through which if a complaint is lodged at one police station, the aggrieved party or victim shall have the opportunity of filing FIR without any hassle. In the era of technological intervention and passing of IT Act, complaint mechanisms should be speedy and effective. However, in the illustration above, the experience was such that the family members were helpless. Despite repeated mails there was no response on those complaints. Moreover, E-FIR shall include more types of crime reporting as it is specifically for petty crimes like theft etc. In spite of provision of zero FIR there have been cases that the police personnel refuse to lodge complaint on technical grounds. The mindset of police personnel was rather unwelcoming as they denied lodging FIR filed by family members on behalf of the victim. On the contrary the social media were more active. They operated within twenty four hours and remove the defamatory comments. (this fifth suggestion was added by Pooja Tiwari, LL.M. (final semester) student (2018-19) at the Indian Law Institute, New Delhi). 

The author Anurag Deep teaches law at the Indian Law Institute, New Delhi.