No #MeToo for Women Like Us” Poor Enforcement of India’s Sexual Harassment Law

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In 1992, Bhanwari Devi, a government social worker in the north Indian state of Rajasthan, was gang-raped in front of her husband by higher caste neighbors angered by her efforts to stop a child marriage in their family.

Justice eluded Bhanwari Devi. A lower court acquitted the accused of rape and convicted them with lesser offenses for which they served nine months in jail. The appeal is still pending in the state’s High Court today, 28 years later. But public outrage and activism catalyzed by her ordeal paved the way for new legal protections against sexual harassment in the workplace for millions of Indian women.

After state authorities, her employer, denied responsibility because she had been attacked in her own fields, activists filed a public interest petition in the Supreme Court demanding that “workplaces must be made safe for women and that it should be the responsibility of the employer to protect women employee at every step.” Acting on the petition in 1997, the Supreme Court of India in Vishaka v. State of Rajasthan set out the “Vishaka Guidelines,” mandating that employers take steps to protect female employees from sexual harassment at the workplace and provide procedures for resolution, settlement, or prosecution. In 2013, India enacted the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act to protect workers in both formal and informal sectors.

The act was a significant legislative step for India but for most women workers in the country, especially those in the informal sector, the law exists only on paper. Government enforcement of this law is so poor that if the attack against Bhanwari Devi happened today, she would still be unlikely to get justice.

After the global #MeToo movement erupted in October 2017, with millions of survivors posting to social media about their own experiences of gender-based violence, many women in India—mostly from the media and entertainment business, as well as others able to access social media in English—started using the hashtag to publicize their accounts of abuse. This led to new public scrutiny of high-profile male figures and led to some resignations and legal action. However, in part because it was led on social media, the #MeToo movement in India excluded women from the informal sector, where 95 percent of women are employed.

“The factory worker, the domestic worker, the construction worker, we have not even recognized the fact that they are sexually harassed and assaulted on a daily basis,” said Delhi-based lawyer Rebecca John. “But poverty leaves them no choice, they know whatever earning they make is far more important.” One woman, a domestic worker, told Human Rights Watch that sexual harassment in the workplace has become so normalized, women are simply expected to accept it:

Everyone thinks of harassment as trivial. “Just ignore,” is what everyone says. If it becomes too much, then I think it is better to report because the more you tolerate, the more it happens. But we are poor, and we are also afraid if we report our employers, they can file false charges of theft against us, so we are scared to raise our voices.

Based on 85 interviews with women working in both the formal and informal sectors, trade union officials, labor and women rights activists, lawyers, and academics, Human Rights Watch found limited government efforts to enforce the law and gaps in mechanisms to protect women in the informal or unorganized sector, such as millions of domestic workers and those employed by the government to implement various welfare schemes.

Although more women are speaking out against sexual harassment in the formal sector, and companies are slowly taking steps to comply with the law, activists said that women still find it difficult to report because of stigma, fear of retribution, and because they fear a drawn-out justice process that often fails them.

*Law Against Sexual Harassment at the Workplace*
In 1997, the Supreme Court introduced the Vishaka Guidelines. “Gender equality includes protection from sexual harassment and right to work with dignity, which is a universally recognised basic human right,” the court said. However, the guidelines failed to explicitly address sexual harassment of women in the informal sector—a group now numbering some 195 million.

_The 2013 Sexual Harassment of Women at Workplace_ (Prevention, Prohibition and Redressal) Act widened the definition of the workplace and covered the informal sector, including domestic workers. Popularly known as the POSH Act, it provides protection to all workers in the public and private sectors including health, sports, education, or government institutions, and any place visited by the employee during the course of her employment, including transportation.

The law defines sexual harassment as physical contact and advances, or a demand or request for sexual favors, or making sexually colored remarks, or showing pornography, or any other unwelcome physical, verbal, or non-verbal conduct of sexual nature. Any of these acts whether direct or implied, constitute sexual harassment under the law. It provides an alternative to filing a criminal complaint with police, instead mandating employers to set up committees in case of a private company, or local government officials in case of the informal sector, to hear complaints, conduct inquiries, and recommend action to be taken against perpetrators. This can range from a written apology to termination of employment.

Women can still file police complaints under the Indian Penal Code dealing with sexual harassment or assault. But unlike a criminal case that could drag on for years, the complaints committees are expected to offer quick and effective remedy.

Under the POSH Act, every employer is required to constitute an Internal Committee (IC) at each office with 10 or more employees. For establishments where the IC has not been constituted because they have fewer than 10 employees, or if the complaint is against the employer, or for women working in the informal sector, the state government’s district officer or collector is required to form a Local Committee (LC) in each district and, if required, at the block level. The government is also responsible for developing training and educational materials, organizing awareness programs, monitoring implementation of the law, and maintaining data on the number of cases of sexual harassment filed and resolved in the workplace.

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