India: Prevention, Prohibition And Redressal Of Sexual Harassment Of Women

PREVENTION, PROHIBITION AND REDRESSAL OF SEXUAL HARASSMENT OF WOMEN AT WORKPLACE – AN INSIGHT INTO THE RELEVANT LAWS: Everybody shouts " Vishaka, Vishaka" now, perhaps with much more enthusiasm than the learned Archimedes who once shouted "Eureka", " Eureka". A deeper analysis and insight to the Vishaka case is what I have attempted hereunder :- 1. Recently the Print and Electronic Media were flooded with angry debates and emotional reactions over a Young Journalist being subject to sexual assault by none other than her own Chief Officer/Senior Journalist and Boss Mr.Taurn Tejpal of ever so popular Weekly Magazine Tehelka. The debate on Television Channels with reputed and Elite Panelist which included women activist, legal pundits, critiques of Media, Law and Judicial System and Social thinkers etc. Several questions were posed and answers sought to be obtained through these intellectual debates and discussions both on Television and the Newspapers. A proactive Media could enforce the Registration of an FIR for various cognizable offences including 376 IPC against Tarun Tajpal even though the victim herself was not willing to launch the Criminal prosecution during the initial stages. 2. Whether a victim's statement is absolutely necessary to register an FIR to kick start a Criminal prosecution was one among the vital question that was being debated in the TV shows. The Code of Criminal Procedure recognizes the launching of a suo -motto criminal prosecution since the word FIR only means First Information Report. The First Information Report is prepared by the Station House Officer or the Police Inspector as the case may be under section 154 of the Code of Criminal Procedure. An FIR has to be registered with the appropriate Magistrate having jurisdiction to take cognizance of the said offence. 3. The Investigating Officer after registering an FIR has to proceed with the investigation of the crime and the powers of an Investigating Officer is well defined from sections 154 to 173 of the Code of Criminal Procedure. The powers include recording of statement of the victim, witnesses and recovery of materials/weapons used for the crime visiting the scene of the occurrence drawing Mahazar (Inventory Report) Sketches of the scene of occurrence and arrest of the accused person. A final report is then filed before the concerned Magistrate compiling the charges against the accused or giving reason for closure of the case., if no offences are made out. If the offences are made out and the accused are not arrested, a Charge Sheet popularly called as 'C' Report or Absconding Charge Sheet is filed by the Investigating Officer. One thing is loud and clear in the Scheme of Code of Criminal Procedure i.e. the Registration of an FIR can be done without a complaint from the victim. Any person can be the informant giving details of the particular crime. But no crime can be investigated and charge sheet filed without recording the statement of the victim. 4. The law related to Section 376 earlier known as the Provision for Punishment for the offence of rape has been amended recently. The said law is likely to be amended further and proposal to re-define the law to be read as " Punishment for sexual assault" is also on the anvil. A larger set of Acts of varied nature are to be now brought in within the definition of Section 375 for defining sexual assault under the Indian Penal Code. 5. So far as the allegations of the victim girl who complained of sexual assault by Mr.Taurn Tejpal as could be gathered from the text of the e-mail forwarded by her to the Managing Editor of Tehelka one Ms.Shoma Choudhry is concerned, it may fall within the definition of the existing punishment for rape. 6. Sexual harassment to working women and the consequences thereof was the subject matter of the very famous case Vishaka Vs. State of Rajasthan that was decided by Hon'ble Supreme Court of India in the year 1997. The Hon'ble Supreme Court gave extensive guidelines to organization employing women. The guidelines included setting up of an Internal Grievance Committee, the subject matter that could be placed before such Grievance Committee, constitution of the said Committee to be 50 % of women members and care to be taken to appoint third party members including members from NGOs etc. The Hon'ble Supreme Court also gave a vital guideline to the recipient of the grievance /complaint to notify appropriate Law Enforcing Authority, if a complaint/grievance letter disclosed commission of criminal offence. 7. Whether the victim girl really intended to launch a criminal prosecution when she gave her complaint through an e-mail to the Managing Editor of the Tehelka could be well ascertained in unambiguous terms from a very plain reading of the e-mail itself. From what could be seen from the internet the concluding paragraph of the e-mail sought for an unconditional written apology from Mr.Tarun Tejpal to be circulated through the organization to all concerned. At this juncture my thoughts go on to Mr.Tarun Tejpal, who had apparently termed his indecent act through an SMS to the victim girl directly as an act of " drunken banter". The next crucial behavior that draws my attention is the apology as expressed by him for the so-called misbehavior and his self imposed punishment of stepping aside from his professional post of the " Editor Tehelka" for a period of 6 months. The realization and the self imposed punishment which Tarun Tejpal declared in public including to the victim in private perhaps misled the Managing Editor of Tehelka Ms.Shoma Choudhry to term it as an internal affair and while doing so, in the presence of large media glare it is understandable that Ms.Shoma lost her cool and fell prey to many unexpected behavior. Whether Ms.Shoma followed the Vishaka guidelines would be a farfetched question when Tehelka did not have the Grievance Committee prescribed in the Vishaka case. When a Committee prescribed by a Judgment of the Hon'ble Supreme Court was not in place how Ms.Shoma could be expected of following one of the guidelines in the Vishaka case i.e. to forward a complaint containing allegations which could amount to the Commission of a Criminal Offence. Many a layman does not know the nuances of law, Ms.Shoma Choudhry may be a Managing Editor of Tehelka, but I feel, she is like any other layperson in law. Intensive dissection on the negligence of Ms.Shoma for not forwarding the e-mail to the appropriate Police Officer have been done in the entire cross section of media and the reason of bias and allegiance of Ms.Shoma Choudhry to Mr.Tarun Tejpal have been expressed in categorical terms as the reason that out-weighed the agony of her junior colleague which prevented Ms.Shoma Choudhry from doing her legal duty. As far as the Vishaka guidelines are concerned, they were wonderful recommendations from the Hon'ble Supreme Court which if followed could be of great relief and an important grievance redressal mechanism for working women complaining of sexual harassment at work places. Whether these guidelines have the force of law? Whether the State/Central Government framed any rules or brought any amendments subsequent to the guidelines given by the Hon'ble Supreme Court of India? Whether the guidelines are mandatory or recommendatory in nature? Whether non-compliance of the guidelines even intentionally could be punishable in law ? Whether refusal to forward the complaint would amount to partnering an accused in the crime committed by him or her? Whether the flouting of these guidelines is an offence more, morally, than legally? All these questions need not be answered in depth to find out whether there is any culpable act or criminality in the allegedly negligent act of Ms.Shoma Choudhry. The Government of India has published in the Gazette of India on 23rd April, 2013 the coming into force of an Act that has been enacted by the Parliament following the guidelines given by the Hon'ble Supreme Court in the famous Vishaka case namely THE SEXUAL HARASMENT OF WOMEN AT WORK PLACE (PREVENTION, PROHIBITION AND REDRESSAL) ACT 2013 incorporating the entire essence and contents of the guidelines given by the Hon'ble Supreme Court of India. 8. The relevant provisions of the new Act which came into force on 23rdApril, 2013 primarily directs the Employer to set-up an internal committee for handling grievances of women employees subjected to any sexual harassment at their work place. If the organization does not employ 10 persons the internal committee prescribed under the new law need not be constituted. However, the Government will also Parallely constitute a Local Complaints Committee under section 6 of the said Act which will take up cases from the establishment which does not have the internal committee in place. Any aggrieved women can make a complaint either to the Internal Committee or to the Local Complaints Committee. The Act also provides for punishment of any Employer who contravenes provisions of this Act and fails to constitute an internal committee under sub-section 1 of section 4 of the Act. The penalty for the first offence is a fine which may extend to Rs.50,000/- under section 26 of the said Act. This clarifies the whole position of the maximum extent of punishment that can be meted out to Ms.Shoma Choudhry, the employer of the young woman journalist. The Act also defines who is an Employer under section 2 (g) (ii) as follows :- 2 (g)" Employer means ........(ii) in any work place not covered under sub-clause (i), any person responsible for the management, supervision and control of the work place. Explanation : for the purpose of this sub-clause "Management" includes the person or Board or Committee responsible for formulation and administration of policies for such organization". Therefore Ms.Shoma Choudhry would come within the definition of Employer even though Tehelka is the establishment that employed the victim girl. 9. Now that an exhaustive legislation is in place duly enacted by the Parliament and coming into force on the date notified in the Gazette as aforesaid there may not be the need to go through the verbatim text of the Vishaka guidelines laid down by the Hon'ble Supreme Court of India in the judgment passed on 13.08.1997. It would be apt to extract a paragraph from the said judgment of the Apex Court which makes it clear that the guidelines shall be mandatorily followed until an exhaustive law is enacted by the legislature to the said effect : " 16. In view of the above, and the absence of enacted law to provide for the effective enforcement of the basic human right of gender equality and guarantee against sexual harassment and abuse, more particularly against sexual harassment at work places, we lay down the guidelines and norms specified hereinafter for due observance at all work places or other institutions, until a legislation is enacted for the purpose. This is done in exercise of the power available under Article 32 of the Constitution for enforcement of the fundamental rights and it is further emphasized that this would be treated as the law declared by this Court under Article 141 of the Constitution". Therefore it is clear even from the Hon'ble Supreme Court's verdict the new law will take over from its date of implementation and only till such time the Vishaka guidelines shall be in force. 10. One more striking feature which may be relevant for discussion at this stage is the provision relating to the duties of an Employer as provided in Section 19 of the said Act under Chapter VI. Section 19(g) and (h) are extracted for ready reference to understand the duty cast upon the Employer for initiating action under the Indian Penal Code. "(g) provide assistance to the woman if she so chooses to file a complaint in relation to the offence under the Indian Penal Code or any other law for the time being in force; (h) cause to initiate action, under the Indian Penal Code or any other law for the time being in force, against the perpetrator, or if the aggrieved womanso desires, where the perpetrator is not an employee, in the work place at which the incident of sexual harassment took place ". Therefore, it is evident that there are no other statutory obligations cast upon the Employer under the said Act for initiating penal or police action. It could also be seen that the above two duties were subject to the choice and desire of the aggrieved woman. From what could be seen atleast in the Print and Electronic Media, the aggrieved woman in the present case had not expressed her choice or desire of setting the criminal law in motion with the assistance of the Employer through her written submission to the Employer. If that be so, has Ms.Shoma Choudhry violated her lawful duty imposed on her under the said Act. ? The answer can be only a 'No'. Perhaps, no law can force or compel any person who is a totally unconnected person or a third party to launch a criminal prosecution against the choice and desire of the victim per se. It is only therefore the provision incorporating the duties of the Employer under the said Act the words " if she so chooses" and "if the aggrieved woman so desires" are carefully worded. Violation of the Act for not setting up an internal committee is by now an admitted fact and the prescribed punishment as seen from Section 26 of the Act is a fine of maximum of Rs.50,000/-. Such an offence is also a non-cognizable one under section 27 of the Act which means no FIR can be filed for such an offence by the Police. An appropriate Metropolitan Magistrate or Judicial Magistrate of the First Class alone can try such an offence and impose the said fine. 11. Be that as it may, whether Mr.Tarun Tejpal is guilty or not guilty, whether the victim is projecting a false complaint and what offences have actually been committed by Mr.Tarun Tejpal will all have to be decided in a trial before the appropriate and competent Court of Law. Any amount of Media sentiments or emotional debates cannot change the course of trial in a Court of Law as the Judgment is based on evidences produced and proved by the prosecution to bring home the guilt of the accused on the charges leveled against the accused. Time alone will give the answer. Whether at all the victim has been left with no choice of dropping criminal action against Mr.Tarun Tejpal, to which choice she is perhaps entitled under law and whether huge psychological pressure has been created on the victim to go through the criminal prosecution in view of the suo-motto registration of the FIR in the present case are larger questions that may need answers purely from the conscience of the victim girl. However mighty a person be, law should reign supreme. There is no doubt about it. The Age-old legal maxim " Nemo iudex in causa sua"which means no man should be a Judge of his own cause is perhaps the cardinal principle that has been first violated by Mr.Tarun Tejpal, while prescribing his own punishment that is the so-called laceration for 6 months by stepping down from the coveted post, to which he is not entitled in law. The law, of course, recognizes the offender to mend his ways, rehabilitate and come back as a better person but definitely not to one's own liking and methods. May the Mighty law take its own course even against Mightier men who can preach well and still not practice anything that they preach. The defence of the accused and the right of fair trial and the outcome of a full-fledged trial may all go on undisturbed and a finality will definitely be seen soon through the established judicial system in our country. No man is above law and no victim is weak before the present judicial system. A word of appreciation for the victim and the moral boost and strength that is given to her across the section of media to take recourse to law rather than shying away from it may all be fine and expected of from all quarters in a civilized society, which perhaps is definitely happening now. Of-course, when good things happen there will be hue and cry and the words such as "witch-hunt" , " prejudice to the accused ", "unfair", "biased opinion", "influence on the judiciary", "undue impact on justice delivery system", etc. will often be heard from the side of the accused. Such cry of frustration and helplessness cannot emanate from the rich and mighty. Justice dispensation to victims of sexual harassment should be ensured in the strictest possible terms and fastest possible manner to achieve reduction in crime against women and for a better civilized society. The stigma cast upon the victim girl in the society or work place after a complaint of sexual harassment is still much higher than the stigma cast on the accused who committed the offence. Of-course during the pre-trial stage or when the judgment is pronounced there is wide publicity of the accused with photograph and identity bringing a lot of insult, loss of reputation and of course some social stigma to the accused but there is no issue of trauma or damage to the psyche and career unlike the sufferings on those counts by the victim. Therefore, if any complaint is found to be false and the prosecution found to be malicious then strict action and proceedings for compensation to the falsely implicated should also be brought within the very same trial process, by bringing appropriate amendments to the existing laws. All said and done the admission of Mr.Tarun Tejpal, which led to his unconditional apology and the defence taken by him now (to which he is entitled in law) and the future defences that he may take during trial and whatever be the outcome of the said trial, one thing is loud and clear – that all was not well inside TEHELKA. Master of " sting operation" finds himself amidst lot of dirt and stink and exposed to the public without any " sting operation".

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