Tejpal test for people like us

When in a historical verdict in 1997, Justice J.S. Verma resorted to judicial lawmaking, and laid down guidelines to prevent “sexual harassment at workplace” (popularly referred to as the “Vishaka guidelines”), everyone thought it was a harmless ruling. No one ever really thought that it would come to bite our public intellectuals and custodians of law and justice, at the highest echelons of power. The private sector chose to pretend that they are not bound by it.

Women journalists, while writing probing reports regarding non compliance by state agencies, never turned the mirror inwards and questioned whether there was a policy in place internally. The news reports were exercises in one upmanship. At times, an occasional journalist would narrate such incidents but would prefer to change her job than press charges and face the stigma.

And worse, while judges of the High Courts and the Supreme Court pontificated on this issue, they did not care to reflect whether they too were bound by this ruling and did not put in place a policy which would bind them. The spotlight was turned only on the public sector and the educational institutions. The concerns of women’s groups about not setting up such committees at all workplaces, including media houses, legal chambers and judicial institutions, fell on deaf ears.

To our probing queries, some senior officials replied disdainfully, “We will see when a law comes into effect.” The government dragged its feet for 16 long years, and finally enacted a law earlier this year, which is yet to be made enforceable as rules under it are not yet framed. So we are still governed by the famous “Vishaka guidelines” regarding sexual harassment at the workplace.

A committee would be set up only when a woman dared to file a complaint against her boss, as is being done in the Tehelka case, to put a lid on the violation so that the news does not spill into the public domain and harm the reputation of the corporate or media house.

Even more important is to bring into focus the demand for a wide definition of rape and stringent punishment, after the brutal Delhi gangrape and murder. This as well as the Shakti Mills case involved lower-class, delinquent men, while the victims were from the middle class. It was convenient to demand stringent punishment.

When an initial Bill was prepared, various groups were more concerned about what was excluded than understanding what was included and its implications. It never made anyone uneasy that one day the wide definition of rape as insertion of not just the penis but also the fingers and objects into body orifices, not just into the vagina, but also anus and urethra and mouth (oral sex) and the stringent punishment (a minimum of 10 years for all such violations by people in power) would come to bite us, bite people close to us, the people we respect.

Now the time for the litmus test has come. The time has come to test these definitions and the stringent punishments. To test our commitment to equality before the law and equal protection of law, a basic and fundamental principle of our Constitution. Even the best of them seem to flounder as was the case with Shoma Chaudhury, managing editor and the second in command, known for her commitment to women’s rights, who failed to treat the complaint with the seriousness it deserved.

The sexual harassment of a law intern by a retired SC?judge, a defender of human rights, presiding over complicated cases involving corruption at the highest le vel, which almost brought the UPA government down (as reported by a news magazine). The so called “drunken banter” by none other than Tarun Tejpal, known for his string operations and probing journalism.

Both these reputed persons might have been under a misconception that they are above the law, that the code of sexual ethics at workplace as stipulated by the Vishaka guidelines applied to them personally. Worse, from their position of power, they did not think that women would ever have the courage to expose them.

But these incidents must make us realise how routinely it takes place everywhere within corporate establishments, media houses, judges chambers, chambers of senior advocates, even within NGOs and within the chambers of progressive lawyers and human rights defenders. There are several law graduates who were forced to change their professions after they were scarred by such incidents.

Despite the public debate on the recent amendment to the rape laws brought into force in April 2013, several journalists as well as subject experts and activists have confided to me their own ignorance about the new definition and asked me for clarification as to finger penetration would now amount to rape? The answer has to be an emphatic yes.

In the case of Tejpal, it would amount to an aggravated form as he is a “person in authority” warranting a minimum of 10 years of imprisonment which may extend to life imprisonment. There is no short cut here as there is his own admission of guilt, which has tightened the noose round his neck.

If the death penalty has to be awarded for a 19 year old, for a poor, socially backward boy for committing gang rape, what should the corresponding punishment be for a father figure and the highest authority in the organisation for finger penetrating a young colleague, as per the regime of stringent punishment? And what would be the “mitigating circumstances” the court can consider in such a case?

A difficult question, the court must answer.

For the Supreme Court too this is a moment of reckoning to bring in transparency and accountability. The Supreme Court has chosen to ignore past sexual misconduct while selecting judges for the Supreme Court. It is also time the court sets up a machinery to deal with the sexual exploitation that takes place under its very nose and set up appropriate machinery for redressal.

the law against sexual harassment at the workplace was recently passed, but the rules have still not been framed. we are still governed by the Vishaka guidelines of 1997. The new law brings the private sector into its ambit.

A generation of newly empowered young women is joining the work force in larger numbers than ever before. This ascension of women, as they outperform men in both the work place and in the domestic situation, has left men feeling uncomfortable. Many of these men, threatened by a woman's need for economic independence, use sexual harassment to re assert their feeling of power and control.

This younger generation is speaking out against sexual harassment in the workplace. While there are few statistics available on the number of women who are victims of sexual harassment at the work place, the National Crime Records Bureau confirms that crime rate against women continues to rise with one woman being raped every 18 hours in India.

Studies confirm that sexual harassment is largely a manifestation of unequal power relations. Many of these women, some from the poorer socio economic backgrounds, working as maids, in garment factories and in the agricultural sector are being forced to put up with constant intimidation and repression due to economic compulsions. Women in female headed families are more vulnerable as most of the superiors in the work place continue to be males.

Women's entry into what had in the past been an ‘all boys club' is often met with derision. “Tip toeing on egg shells” is how a young scientist described her debut in the work force. Working women report of office meetings where sexually explicit jokes are cracked at their expense. This inhospitable environment is made worse by the lack of basic facilities including toilets for women in several establishments.

Delhi based psychologist Dr Pulkit Sharma points out that some of these women who have migrated from villages and smaller towns have grown up in a society where they have been taught to look upon their seniors almost with a “sense of reverence”.

“Given their backgrounds, they are taught not to oppose their mentors. Sexual predators abuse their powers by targeting women who they see as being soft targets. What can start of as being an innocuous action as putting a hand on a woman's shoulders can soon metamorphose into more explicit behaviour. Initially, some of these girls, due to their inexperience, fail to negotiate these boundaries which is when the relationship metamorphoses into sexual harassment,” Dr Sharma said.

This seems to be the case in the Tarun Tejpal incident of sexual assault where not only did the founder editor of Tehelka know the victim extremely well — she was a good friend of his daughter's and had grown up regarding him as a paternal figure — but he had also helped mentor her in her career as a journalist.

This is a moment of inflexion as far as sexual harassment is concerned. The survivor admitted it had been a “traumatic and terrifying” experience for her to go public on this and “yet how critical”. She discussed it in detail with her colleagues, mother and close friends, who all suggested that she go public as it was unacceptable that any organisation treats its female employee in this fashion.

The victim admits to Tejpal having assaulted her twice. The first time she did not go public, because the assault took place in the midst of the prestigious Think Fest with celebrities from around the globe participating. Tejpal kept the pressure up showing no signs of relenting.

In what conforms to the classical case of sexual harassment at the workplace, he reportedly told her to fall in line saying, “Well, this is the easiest way for you to keep your job.”

The enormous outrage this case has generated shows that women are no longer willing to accept loose talk and inappropriate behaviour at the workplace, especially since this amounts to sexual discrimination.

The recent Sexual Harassment and Workplace (Prevention, Prohibition and Redressal) Act 2013 is a significant remedy that recognises a woman’s right to a safe work environment. The responsibility of ensuring there is no sexual harassment is placed on the employer who will be held liable in case of any violations.

Tejpal stands doubly accused. Not only did the employer turn sexual predator but Tehelka’s managing editor Shoma Chaudhury failed to assist the victim in filing a case of criminal prosecution which the law requires the employer or manager to do.

Already the Tejpal case has opened the floodgates of complaints as happened with the Delhi gangrape case. Following the warning of the Supreme Court that cops register all cases of rape, the NCR region alone witnessed a 20 per cent increase in rape reporting while cases of eveteasing shot up 700 per cent in 11 months.

The same seems to be the case with cases of sexual harassment. The Tehelka episode has emboldened women to make complaints. An orphaned working woman in Himachal Pradesh has levied charges against an IAS officer who promised her a job if she accepted his advances. A young JNU student went public on how a senior officer in the information and broadcasting ministry had made suggestive propositions to her at the International Film Festival of India at Goa. The ministry set up a committee and the officer was sent back to Delhi post haste.

Women are demanding an end to the daily hostility they face in the work environment. The increasing sexual innuendo in every day conversation in many work environments should end. They are tired of being at the receiving end of such loose talk. Women will only be able to give their best if they are assured of a safe environment that is sensitive to their special vulnerabilities.