Jawaharlal Nehru University’s Gender Sensitisation Committee Against Sexual Harassment is in trouble. The authorities on September 18 decided to mutilate this body that has, for years now, been a model for how to organise against sexual harassment in the workplace. Like many other administrative decisions over the past two years in JNU, this one spells trouble for people outside the institution as well, for the university has become a symbol for much that the central government loathes and fears. So we should all sit up and take notice.
University authorities have decided that the Gender Sensitisation Committee Against Sexual Harassment should be called the Internal Complaints Committee, and that five of its eight members should be appointed by the administration instead of being elected, as they are at present. Both changes stem from the stipulations of the University Grants Commission – which funds and regulates higher education in India – as well as by the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. The Jawaharlal Nehru Teachers Association has gone to court to try and prevent a change in the way its members are chosen.
I was one of the women involved in constituting the committee, and I want to recount salient features of its history to remind us why such changes set a dangerous precedent for gender and sexual justice in India.
Vishaka Guidelines
As women faculty, we had been trying hard to think about how to set up a body that could deal fairly with the numerous students who had faced harassment and assault. On August 13, 1997 a judgement of the Supreme Court laid down guidelines for all institutions to prevent and redress cases of sexual harassment in the workplace. Vishaka versus the State of Rajasthan was delivered in response to a class action petition following the gang-rape of Bhanvari Devi, a social worker in Rajasthan. We at JNU seized the opportunity, working closely with feminist lawyers who were working as amicus curiae, or friends of the court. For their part, they recognised that there were several grey areas and loopholes in the judgement, and hoped these would be addressed as the judgement was implemented. After all, it is only when you start to transform a law into procedure that you can measure its efficacy.
As we imagined implementing the guidelines at JNU, we consulted about how universities in other countries had handled the matter. We invited feminist lawyers and activists to campus, held discussions and meetings with students, and asked faculty to come and testify in open forums about the necessity, and proper methods, of implementing the guidelines. We also met lawyers such as Lotika Sarkar, who had challenged a Supreme Court verdict on a famous rape case in 1979 and formed a “Forum Against Rape”, actions that had led to the amendment of the Indian Penal Code.
The Vishaka judgement asked that a “definition of sexual harassment be notified, published and circulated in appropriate ways”. The spirit of the guidelines was a plea for gender sensitisation, not just legislation, and for working towards eliminating the problem, not just punishing offenders. The judgement stipulated that a woman should head any complaints committee, that 50% of its members be women. and that a feminist activist, lawyer or social worker – someone outside the institution – be part of these committees. This provision acknowledged the need for involving the women’s movement whose work had led to the promulgation of the guidelines in the first place.
It was also designed to ensure that the structure of the complaints committee did not simply reflect the interests of those in power. In our discussions and consultations, this emerged as the most important question, but also the hardest to address. Women are often hesitant and afraid to complain, about sexual harassment, because it can lead to unpleasantness, requires confrontation, and brings unwelcome attention. Employers are often the last people they want to go to, and indeed are often the ones doing the harassing. Moreover, a university is a large and heterogeneous space, involving teachers, students, staff, workers, casual labor. Here questions of sexual harassment can get polarized and reduced to the question of students versus workers, teachers versus students, left versus right, and so on. Only a broad-based committee which represents and is trusted by the different sections of the university community can be effective.
At this time an incident took place, involving the gang rape, by four JNU employees, of a destitute and mentally disturbed vagrant woman on campus. The university could argue this was not its responsibility, but we – teachers and students alike – felt we had to see that justice was dispensed to this woman. As we watched the many attempts by various parties to cover up the crime, it became very clear that any redressal of sexual harassment in the workplace could not be left up to the authorities of that workplace. The higher up the offender was in the hierarchy of the organisation, the more the chances that justice would be scuttled.
Separate elections
How then should such a committee be constituted? We were aware that simple elections can end up reflecting existing political configurations on a campus. But if elections are conducted for this particular purpose alone, it could also serve to encourage debate and discussion on this question. If different sections of the community participated in these elections, and heard various candidates discuss their approach to this question, we could draw the campus into a community that came together to address the problem.
In implementing such election procedures, we departed from the rules that govern investigation of sexual harassment in most places elsewhere, including US universities. Yet these procedures have been crucial to JNU’s committee being widely understood as one of the most effective sexual harassment committees anywhere. I now teach in the United States where universities have elaborate mechanisms to deal with sexual harassment. But in all of them, to the best of my knowledge, redressal lies in the hands of the university administration. The result is that cases of sexual harassment involving senior professors have often been inadequately dealt with. Students have widely protested this state of affairs. Whereas once we in India looked at the ways in which this matter was handled in Western universities, over the past many years I have often thought that the reverse should be the case.
Legal lacunae
But are we moving in the opposite direction ourselves? After the public protests following Nirbhaya gang rape case, in which a young woman was sexually assaulted on a moving bus in Delhi in December 2012, and subsequently died of her injuries, the Justice JS Verma Commission, was charged with revising existing laws on sexual violence. This commission held wide-ranging discussions with women’s organisations and feminists, including the JNU committee. It recommended this committee as a model of its kind, asking the government to consult the committee’s guidelines in order to rewrite the Sexual Harassment of Women at Workplace Act.
But the government did not do so, and when the Act was notified, it contained many of the loopholes the JNU committee had anticipated and addressed. The new law leaves it up to employers to set up internal committees investigating sexual harassment. It says redressal of cases must follow the service conditions of the organisation involved, which makes little sense without requiring a thorough overhaul of such conditions. While we at JNU argued that it is the employer rather than the perpetrator who must be held liable for claims of compensation, the law mandates the opposite of this. This makes the question of sexual harassment and violence a confrontation between individuals, rather than implicating those who run the workplace.
The history of JNU’s committee shows that gender-sensitive legislation grows out of a dialogue with feminist and democratic movements. What is happening now is the latest episode in a long and complicated battle for gender justice and democracy in India. The onslaught against the Gender Sensitisation Committee Against Sexual Harassment must be seen as part of the relentless curtailing of spaces for democratic politics on university campuses and in the country at large.
Ania Loomba is Catherine Bryson Professor of English at the University of Pennsylvania