In May 2016 the Universities Grants Commission notified its regulations on prevention, prohibition and redressal of sexual harassment of women employees and students in higher educational institutions drafted in 2015. The definition of sexual harassment is more inclusive than the 2013 Act on sexual harassment of women in workplaces which was notified following the Nirbhaya and the Tehelka incident. The regulations are being widely hailed for being gender neutral and for clarifying several aspects of the law relating to sexual harassment on academic campuses.
The regulations provide for student membership of the Internal Complaints Committee (ICC) recognising the need for student representation on such committees. Internal Complaint Committees under the 2013 Act do not require such membership. This was an official recognition of a practice that was already in place in many Universities but was not a requirement under the law. The regulations have brought in a limitation in terms of the time frame for the complaint to be lodged. The three months rule for lodging complaints has been brought in to be in conformity with the 2013 Act. The regulations also do not have any provision for any suo-motu complaints to be taken up. There is a provision for conciliation in order to settle such disputes on the initiative of the aggrieved person and although there is no provision for a monetary settlement, there can be compensation that is to be recovered from the offender as a form of punishment.
Sexual harassment law evolved out of discrimination jurisprudence in the United States. The first cases of sexual harassment were in fact maintained against employers for failing to prevent sexual harassment which was recognised as a sex-based discrimination. While India has borrowed much of the definition and the jurisprudential bases of sexual harassment claims, in terms of locating them as sex-based discrimination, we have not incorporated provisions of compensating aggrieved persons in terms of institutional culpability for failure to address such claims. While the regulations provide for action to be taken against institutions which have contravened or have repeatedly failed to comply with obligations and duties laid out in these regulations, such action may be taken by the Commission only and the aggrieved persons cannot maintain any claim such the institution.
An interesting feature of these regulations are Women Development Cells that are proposed to be revived and funded to carry out a range of activities on gender sensitisation while remaining autonomous of the Internal Complaints Committee. This is a much needed provision because the responsibility of carrying out sensitisation program needs to be separated from the disciplinary body that is the ICC . It is important to discuss sexual harassment as part of a larger debate on gender sensitisation and raising consciousness around gender . Such a process can address the experiences of those who do not report, since the general pattern around sexual harassment is that for every complaint filed, there are at least three complaints reported but not filed.
The majority of cases are suffered in silence and by the hands of co-workers, students and persons in relationships of friendship and trust. In educational institutions particularly with young students and complaints among students, it is extremely important to be able to address the pain, guilt and psychological repercussions of both the victim and an alleged perpetrator. In many cases students do not want punitive or disciplinary action against their fellow students. An extremely delicate balance needs to be struck between standing up for oneself, reporting violence against all persons while affording adequate opportunity to the person alleged to have committed such violence to be heard and opportunities for reflection.
While ICC may not be able to address all such issues, these cells can take up issues which are not taken to the formal forum but also need to be addressed. They can throw light on an issue that many face but who perhaps don’t even see it as an issue of sexual assault and in that sense giving voice and breaking a sinister silence on things some would consider too shameful to even acknowledge. It is also important not to individualise the behavior but flag out issues of equity and respect in relationships, and the issue that needs to be debated is of identifying behavior as problematic and not least of all acknowledging that this could happen to anyone and breaking the myth that sexual harassment is only violence of the kind that receives maximum public attention, like the gang rape of a student in public transport. The extreme violence by random strangers is not the only form of violence that women encounter.
While survivors battle these conflicting emotions, by standers are often also conflicted in the need to balance out versions and the need to seek ‘objectivity’. These conversations which happen outside of the formal inquiry process can address concerns such as the constant undermining and at times dismissing, concerns of sexual harassment. Sexual Harassment cases are often condemned as extra sensitive behavior and students often trivialize the experience of others. When faced with extreme violence of course most turn around to condemn it strongly, but the more normal routine attitude is one of either disbelief or derision.
While institutions of higher education today have broken several barriers for women, gender concerns and issues of sexual orientation remain at the fringes. Gender sensitive behavior is not the norm and those bothered by it are asked to pipe down or are put down quite brutally. Legal and institutional mechanisms have been in place for a while but the reluctance to access them remains. Individual complaints do not sensitise the environment as the investigation and the results are often private and not in the public domain. The challenge to create a less hostile environment remains. Appropriate forums to engage with these questions in a non-adversarial manner and restitutive manner still need to be designed. In the meantime an attempt to create a supportive environment cannot be overstressed. These women development cells have the potential to fill this gap between the formal complaints processes and the need to build gender friendly environments.