Even as the Supreme Court on Wednesday agreed to hear a petition filed by a former law intern accusing ex-Supreme Court judge Swatanter Kumar of sexual harassment, the bench asked why the woman had waited two years before coming forward with her allegations. "What is the explanation for the delay?” the judges asked.
They added, "Our apprehension is that even after 20 years when the judge reaches the age of 90 years, complaint can be filed."
The woman's advocate, Harish Salve, replied that complaints would be filed within a reasonable time once a mechanism had been set up to deal with them. The woman has asked the SC to constitute a permanent mechanism to deal with sexual harassment cases in judicial bodies.
That, say experts, is the crux of the matter. More than a year after a law was passed to prevent and redress incidents of sexual harassment in the workplace, the lack of strong institutional mechanisms to address these complaints is preventing women from coming forward, experts say.
The law in September 2012 directed all workplaces to set up committees to address such complaints. The mechanism for dealing with sexual harassment in the workplace had first been spelt out in 1997 in the so-called Vishaka Guidelines.
On the face of it, larger numbers of women who have been sexually harassed have gained the confidence to file complaints, fuelled by the outrage over the December 2012 gang rape in Delhi and high-profile cases such as the sexual harassment suit against another retired SC judge, AK Ganguly, and the sexual assault case against former Tehelka editor Tarun Tejpal.
Tejpal has been in custody in Goa for a month for allegedly sexually assaulting a colleague. In December, a SC committee held that Ganguly was guilty of sexual harassing an intern in 2012.
The swift action in the Ganguly case gave the other intern hope and prompted her to file her own complaint, even though a long time had passed since the incident, said Kavitha Krishnan, secretary of the All India Progressive Women's Association.
She contended that it was specious to argue that a delay in reporting such incidents greatly weakens the complainant's case. The reality, she said, is that there are no structures that enable a woman to come forward and file such a complaint.
"Between the woman and justice, there are no structures," Krishnan said. "The Vishaka guidelines are not implemented in most cases."
Last month, a study by the Associated Chambers of Commerce and Industry of India found that fewer than half of India's companies had set up cells to deal with cases of sexual harassment. While 49 per cent of companies in the Delhi-National Capital Region had done so, only 38 per cent in Mumbai, 42 per cent in Kolkata and 46 per cent in Bangalore had grievance mechanisms.
Another reason for delays in complaints, experts say, is that ambiguity could persist about whether the encounters were consensual. Legal scholar Flavia Agnes, who also founded Majlis, a legal resource centre for women, drew a sharp distinction between cases such as the gang rape of a 51-year-old Danish woman in Delhi on Tuesday, the sexual harassment charges against AK Ganguly and the rape case against Tejpal.
"There is no question of consent in the gang rape cases, but in the other cases, the issue of consent becomes more ambiguous," Agnes said. This could cause even more doubt in the mind of victims, and delay their coming forward.
However, this hesitation could be overcome by treating sexual harassment as a civil offence, suggested political scientist Nivedita Menon. "The crucial legal distinction between a civil and criminal offence is that in the former, probability is enough to uphold the complaint; while the latter requires proof beyond a reasonable doubt," she wrote in Kafila. "In cases of sexual harassment, the latter may be impossible to provide....in such a scenario, women (and men) would be more reluctant to complain."
Crucially, the Sexual Harassment of Women at Workplace Act of 2013 allows for the ambiguity of sexual harassment cases by recognising sexual assault as a civil offence, Menon notes. This could actually improve the chances of redressal.
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They added, "Our apprehension is that even after 20 years when the judge reaches the age of 90 years, complaint can be filed."
The woman's advocate, Harish Salve, replied that complaints would be filed within a reasonable time once a mechanism had been set up to deal with them. The woman has asked the SC to constitute a permanent mechanism to deal with sexual harassment cases in judicial bodies.
That, say experts, is the crux of the matter. More than a year after a law was passed to prevent and redress incidents of sexual harassment in the workplace, the lack of strong institutional mechanisms to address these complaints is preventing women from coming forward, experts say.
The law in September 2012 directed all workplaces to set up committees to address such complaints. The mechanism for dealing with sexual harassment in the workplace had first been spelt out in 1997 in the so-called Vishaka Guidelines.
On the face of it, larger numbers of women who have been sexually harassed have gained the confidence to file complaints, fuelled by the outrage over the December 2012 gang rape in Delhi and high-profile cases such as the sexual harassment suit against another retired SC judge, AK Ganguly, and the sexual assault case against former Tehelka editor Tarun Tejpal.
Tejpal has been in custody in Goa for a month for allegedly sexually assaulting a colleague. In December, a SC committee held that Ganguly was guilty of sexual harassing an intern in 2012.
The swift action in the Ganguly case gave the other intern hope and prompted her to file her own complaint, even though a long time had passed since the incident, said Kavitha Krishnan, secretary of the All India Progressive Women's Association.
She contended that it was specious to argue that a delay in reporting such incidents greatly weakens the complainant's case. The reality, she said, is that there are no structures that enable a woman to come forward and file such a complaint.
"Between the woman and justice, there are no structures," Krishnan said. "The Vishaka guidelines are not implemented in most cases."
Last month, a study by the Associated Chambers of Commerce and Industry of India found that fewer than half of India's companies had set up cells to deal with cases of sexual harassment. While 49 per cent of companies in the Delhi-National Capital Region had done so, only 38 per cent in Mumbai, 42 per cent in Kolkata and 46 per cent in Bangalore had grievance mechanisms.
Another reason for delays in complaints, experts say, is that ambiguity could persist about whether the encounters were consensual. Legal scholar Flavia Agnes, who also founded Majlis, a legal resource centre for women, drew a sharp distinction between cases such as the gang rape of a 51-year-old Danish woman in Delhi on Tuesday, the sexual harassment charges against AK Ganguly and the rape case against Tejpal.
"There is no question of consent in the gang rape cases, but in the other cases, the issue of consent becomes more ambiguous," Agnes said. This could cause even more doubt in the mind of victims, and delay their coming forward.
However, this hesitation could be overcome by treating sexual harassment as a civil offence, suggested political scientist Nivedita Menon. "The crucial legal distinction between a civil and criminal offence is that in the former, probability is enough to uphold the complaint; while the latter requires proof beyond a reasonable doubt," she wrote in Kafila. "In cases of sexual harassment, the latter may be impossible to provide....in such a scenario, women (and men) would be more reluctant to complain."
Crucially, the Sexual Harassment of Women at Workplace Act of 2013 allows for the ambiguity of sexual harassment cases by recognising sexual assault as a civil offence, Menon notes. This could actually improve the chances of redressal.