Sexual Harassment: The New Conjuncture
Edited by Dr. Ashley Tellis
Written by Shreya Gupta
The Gender Studies Group, Delhi University organized an interactive session titled “Sexual Harassment: The New Conjuncture” on 9th February, 2014 at Department of Political Science, University of Delhi. This aim of the discussion was to look at the issue of sexual harassment in Delhi University and discuss the change in Delhi University’s Sexual Harassment policy which has involved the scrapping of Ordnance XV D and the following of the new Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act, 2013. Our speakers for the session were Dr. NA Jacob, Assistant Professor, Ramjas College and Prof. Ved Kumari, Faculty of Law, both of whom were part of the team that formulated Ordnance XV D and part of Committees on sexual harassment cses over the last decade. We also distributed a pamphlet amongst the audience highlighting the differences between the new law and the old ordnance as points of departure for a discussion and future campaign.
Dr. NA Jacob, who has been a part of the College Complaints Committee of Ramjas College, began the session. Dr. Jacob made several conceptual points that formed a strong foundation for the discussion. He drew our attention to the fact that the Women at Workplaces Act, 2013, which has superseded Ordinance XV-D, is applicable only to women. While the Ordinance was gender neutral, the Act is not. The Act, in this manner, completely disregards even the possibility of same-sex harassment. It is shocking that the University could allow this Act to supersede the Ordinance, considering the eight year-long fight in the B N Ray case (the Vice-Principal of Ramjas College who harassed boys for decades) and the current reservation for transgender students in postgraduate courses.
The second point raised by Dr. Jacob was regarding the formation of the Complaints Committee. The Act has completely done away with representation by the elective process (as was the provision under the Ordinance) and replaced it with a process of nomination. The nominations would be made by the Head of the institution. This reveals the very feudal model of power structure that continues in the University granting unprecedented powers in the hands of the employers. One can then easily imagine the decisions of a case where the accusation is against the Head himself. It is very important to note here that last year, we saw two cases in DU where principals sexually harassed their junior officers in Ambedkar College and ARSD college and used their power to get away with it.
The Complaints Committee under Ordinance XV-D was constituted in a manner autonomous from the existing power structure. Its constitution would evolve from the Gender Sensitization Committees of the respective institutions. Each class in a college elected one student to the Gender Senstitisation committee and three of those were democratically elected to the College Complaints Committees. This is largely because the Complaints Committee was not a jury of sorts. Its agenda was not just to handle complaints but also to prevent cases through sensitization programs.
Dr. Jacob then argued that the Act posits a limited definition of sexual harassment. It recognizes only the following circumstances as circumstances of sexual harassment – (i) implied or explicit promise of preferential treatment in her employment; or (ii) implied or explicit threat of detrimental treatment in her employment; or (iii) implied or explicit threat about her present or future employment status: or (iv) interference with her work or creating an intimidating or offensive or hostile work environment for her; or (v) humiliating treatment likely to affect her health or safety. Dr. Jacob maintained that the given provisions are unclear and abbreviated and we need a clear, lucid and expansive definition.
Dr. Jacob also drew our attention to the deficiencies in Ordinance XV-D. He insisted that we look at the Ordinance as a process of learning. He pointed to just two problems with the Ordinance which are as follows:
- The politics of representation: In his own experience in the Complaints Committee, Dr. Jacob observed that the individual representatives of different constituencies would primarily endeavour to safeguard the interests of their own group. This creates a critical gap between the individual interests and the interests of the larger body. Prof. Jacob insisted that we need a broader analysis of why one is on the Committee as the aim of the member should be a fair analysis of the case and the broader structure within which it takes place and not the defence of one’s own constituency. One is not put on the Committee as a representative defender of one’s community but as a member among others ensuring fair representation of all the players who are part of an institution. In effect, Dr. Jacob was pointing out the problematic nature of identity politics which hampers objective judgement because it is subsumed by community interests and self and community representation.
- Action and functioning: Jacob drew our attention to the B N Ray case where a 600 page, meticulous report created after an investigation of eight months had to be re-done entirely because the law demands that the accused be present when the witnesses are being interviewed and this was not done. The accused pointed this out and the court demanded that the whole procedure be started again. This delayed and damaged the case considerably, apart from the fact that this provision can intimidate witnesses. Dr. Jacob was pointing this out to indicate that we need to be very familiar with the law. According to the present laws, the accused can be part of the examination of the witnesses in question but the Ordinance is at variance with this law. The Ordinance does not clearly think through the process of sexual harassment and that evidence can be disputable and the process run counter to the law.
Dr. Jacob then finished by referring us to the two ways in which we respond to Sexual Harassment which are, to his mind, erroneous. Our responses are mostly in terms of the sterile binary of innocence and guilt – either all women are liars or all men are rapists. We run after the language of hard evidence, which is seldom available, and misused or destroyed when available. There is a structural scepticism when no evidence can be found.
Ordinance XV-D was commended for its comprehensive classification of penalization of the guilty, along with recognizing different genders and sexual orientations. The Act fails to address several aspects like non-female victims, sexual orientation, and student-to-student harassment, among others. Dr. Jacob felt that gender sensitization was the most effective force against sexual harassment which we cannot afford to sideline.
Our next speaker was Prof. Ved Kumari, who teaches at Law Centre-I, Faculty of Law. Prof. Ved Kumari pointed out in the very beginning that there was no need to scrap the Ordinance. We have lost a major deal because of the new legislation. The Act was not in derogation of but in addition to the present policies of the institution, she pointed out. But then, Prof. Kumari questioned if even this Act, in place since 2013, has been properly implemented. She asked the audience if they knew about either the Ordinance or the Act. It was not a big surprise that very few of them knew about these policies. She drew attention to the fact that the provisions under the new act were also not being followed properly by the university. For example, committees were still not being formed in colleges, no programmes for gender sensitization were being organized, there were no noticeboards indicating the policies in place, all of which are mandatory.
Prof. Kumari then gave us a background of the various sexual harassment policies. She talked about the Vishakha Judgement – Supreme Court 1997 – where the sathin Bhanwari Devi (Governmnet Worker) belonging to a lower caste village in Rajasthan, prevented a child marriage from happening in a high caste family. Though it was her official responsibility to do so, four men from the high caste family raped her in the presence of her husband as retribution. She was not granted justice as:
- It was considered inappropriate for a woman to consult an institution outside her family or without the family’s consent.
- It took 8 days for the case to reach court.
- No one believed that a high caste man would touch a woman of a lower caste. It was not ‘NORMAL,’ as the Sessions Court judgement said.
Prof. Kumari then alerted us to the fact that even if one lodges a sexual harassment complaint, it is not easy to carry out the process. At each point of the complaint process, one faces further harassment. For example, questions raised are – “Is she looking harassed?” “Why is only she getting harassed?” This kind of questioning puts restrictions on women if they report sexual harassment.
Prof. Kumari then covered the arrangements under the Ordinance which were widespread and inclusive. The Act however is only for women and only for women at the workplace. This clearly shows that the larger student body is not a part of this legislation. The biggest drawback in the Act is that it is not gender neutral. Anybody who is not considered a woman does not have a grievance redressal mechanism in the University.
Prof. Kumari drew our attention to the fact that we had three legislations for Sexual Harassment – Ordinance XV-D, IPC 354 D and POSCO. The Sexual Harassment for Women at Workplaces Act 2013 does not cover men and women under 18.
The Act makes sexual harassment compromisable and non-cognizable (no court can take action on its own), both of which are untenable. Prof. Kumari opined that the mechanism for filing complaint is not clear in the Act. The Act also requires absolutely solid evidence on reporting, which is not always easy to produce or procure. The Act gives preference to employees, when non-employees are the largest section of people within the University area. The reference to students is also only oblique.
It should be noted that if sexual harassment is proven against an accused, then, as per the Act, he has to pay a monetary fine. This is a problematic situation as very few students earn. Also, to transfer all such cases directly to the police is not student-friendly either. The Act, in this sense, disregards, trivializes and ultimately erases student-to-student harassment. She also noted that the jurisdiction of the new law is also not very clear. The earlier ordnance covered not just the university area but also the areas around the university like Hudson Lane, Hostels, PGs, etc.
The floor was then opened up for discussion. Dr. Ashley Tellis, former faculty, Delhi University talked about how students are not serious about sexual harassment. Students show no interest in gender issues and about topics of their own welfare! A female student in the audience added that one can feel the absence of a collective consciousness among the students regarding sexual harassment. There is either a complete dismissal or paranoia about sexual harassment. Dr. Tellis said that one ought to be very careful about the difference between moral policing and sexual harassment. He added that one does not want to police students and their sexual behaviour. The key point is about consent. Harassment begins when there is a lack of consent.
Prof. Kumari then wondered if women are better off now than they were before, say pre-1997. While most students felt they were, Prof. Kumari said that major and minute forms of harassment continue for women in their day-to-day lives and the condition cannot be called comparatively better at all.
Prof. Kumari then discussed about how Law is masculine by which she meant presuming only men as its subjects. She also brought into focus the disability debate and how disability is not taken seriously at all. She was of the opinion that all of us are disabled in some sense or the other and need special facilities for that. We just need to open up our minds.
The Gender Studies Group in the end announced its plan of a larger campaign around this issue.
We have planned to have all our events this semester around the issue of sexual harassment and try and make more and more people aware about the change in policy. Our next session will be late this month and we hope many more students will attend it.
Pamphlet distributed during the session: https://genderstudiesgroupdu.wordpress.com/2015/02/10/sexual-harassment-the-current-conjuncture-key-points-parcha/
A Newspaper Report on the BN Ray Case:
A Newspaper Report on Pavitra Bhardwaj’s Case from Ambedkar College:
A Newspaper Report on Aruna Kumar’s Case from ARSD College:
An article about the harassment faced Dr.Ashley Tellis, Gay Rights Activist and Former Faculty in Delhi University: http://archive.indianexpress.com/news/i-had-underwear-put-on-my-door…-porn-slipped-in/607006/0
A Write-up about harassment of trans* and queer students in DU:
Ordnance XV-D : http://bcas.du.ac.in/downloads/ordinanceXVD.pdf
Women at Workplace Act, 2013: http://www.du.ac.in/du/uploads/Notifications/02122014_Notification.pdf