The Indian Express

So that she can speak

Ania Loomba

The recent incident of sexual harassment at Tehelka has underlined the urgent necessity for implementing the Vishaka judgment and the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, both of which call for the setting up of internal committees in every organisation and workplace. But one of the most complicated and important issues that has emerged in the wake of this incident is that of women’s agency. Some women activists and lawyers have argued that the journalist who complained of sexual harassment against Tarun Tejpal should be allowed to decide to what extent to pursue the matter.

In a recent article, CPM leader Brinda Karat has argued that these women “became party to” Tehelka’s attempts to cover up the gravity of the crime and its own institutional culpability. Apart from imputing motives to these activists, the phrasing suggests that raising the issue of female agency at this juncture is tantamount to diluting and diverting the cause of justice. I write as one of those who disagreed with the arguments of these activists, and was worried about some of the ways in which female agency was being invoked in social media and other forums in the wake of this incident. But I would argue that the issue of women’s “agency” is absolutely central to any attempts to provide justice in cases of sexual violence. Because the journalist has agreed to comply with the Goa police’s investigation, this particular case has moved beyond those discussions. But we need to take this opportunity to think seriously about this issue, both in order to push for clarifications in the law and to inform our own practice.

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 was meant to serve the purpose of providing speedy justice in cases of sexual harassment to women employees without the lengthy procedures of a court case. Contrary to the impression given in many recent articles on the Tehelka case, the act underlines that an “internal committee” is not to be set up in response to a particular complaint. It should be set up and be in operation continuously and its task is both to redress sexual harassment and to prevent it by educating employees and advertising its obligation to take such harassment seriously (Section 19).

In cases where no such committee exists and “if the complaint is against the employer himself,” the district officer is to set up a “Local Complaints Committee”. So an internal committee set up after a particular incident has taken place, and where the case involves the employer, is clearly nothing but an attempt to flout both the spirit and the letter of the law. Moreover, under Section 10(i) of this law, an “internal committee” against sexual harassment “may, before initiating an inquiry under Section 11 and at the request of the aggrieved woman, take steps to settle the matter between her and the respondent through conciliation.” Its task is also explicitly to protect the privacy of the complainant (Section 16). The legal and ethical mandate of such committees is to ensure that no incident of sexual harassment goes unpunished and to provide a safe space for women to raise these matters. One of the key casualties when any organisation does not set up an internal committee is the complainant’s right to choose how, and to what extent, to pursue cases of sexual harassment. Thus, in not constituting a sexual harassment committee, Tehelka not only broke the law, but made it impossible for the journalist to raise the question in a manner that might protect her privacy and her agency.

The other complication in this case is that, whereas the act suggests that all offences under its purview (sexual harassment) are non-cognisable, rape and assault are cognisable offences. But the lines between sexual harassment and sexual assault are not always cut and dried. Moreover, if the complaint is in the first instance handled by an internal committee, when should it become obligatory for sexual harassment committees to report offences to the police? The 2013 act is not clear at all on the issue. Would such an obligation override the right of the woman to choose further courses of action, a right that the act seems concerned to protect? Committees to tackle sexual harassment in the workplace can only be effective if women feel both empowered and safe in bringing their complaints to them. In trying to institute one of the earliest such committees in Jawaharlal Nehru University, we realised that safety means the right to pursue a complaint, but also the time and space to think about the forms of redress, and to come to terms with the trauma of the experience of harassment.

Of course, women need to be informed of all their options if they are to exercise their choices meaningfully. They need to understand the consequences of pushing a case forward legally, and also of not doing so. But the question of “agency” is a complicated one, and not limited to the question of information alone. When a woman withdraws her complaint against a sexual offender, it is impossible to know whether she does so because of personal or social pressure, or free will. But all those who have worked with women facing sexual harassment and sexual violence know that legal and punitive mechanisms cannot be effective if such women do not feel safe in raising these issues in the first place.

The Tehelka case should be used to make sure all employers set up appropriate committees to handle complaints of sexual violence. But beyond that, we need to reflect on the difficult but crucial question of women’s agency and safety to engage in serious discussion so that we can address the loopholes and grey areas that still exist, both in the law and in our own thinking on these issues.

The writer is professor, University of Pennsylvania, US