With the explosion of the #MeToo movement on Twitter and other social media forums, it is time to assess whether the sexual harassment laws in the country are equipped to deal with the issue at hand. Until now it was something that wasn’t openly addressed but with several women taking on Twitter to share their plight and stories, with some allegations going as far back as 10 or 20 years, the silence has been broken and it becomes imperative that the country has in place strong legal framework to battle it out.

hen observed carefully, this isn’t about sexual harassment where a specific provision of law can be applied to seek recourse and becomes more complicated as it deals with allegations ranging far back as 10 or 20 years old. Perhaps this is the reason why women chose to avoid the technicalities of the law and stayed silent for so many years.

The law as it stands today is divided into two parts. One is under criminal provisions of the Indian Penal Code, 1860 and the other is under the Prevention of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH) that superseded the Vishakha guidelines of 1997 aimed at fostering a secure work environment for women. Provisions under both these laws although robust to deal with sexual harassment are turning out to be inadequate in today’s charged climate where women are speaking up against harassment like never before.

A key flaw that has emerged is the failure of the POSH law to deal with cases retrospectively by laying down a 3-month period within which the complaint has to be made with the Internal Complaints Committee (ICC). This puts women facing sexual harassment at the workplace in a tight space as they cannot claim it as a remedy if they wish to address it at a later stage. The law has failed by setting a deadline on a sensitive issue like sexual harassment where in fact it needs to consider each case as it comes. Sexual harassment at the workplace can get tricky and it is the women’s prerogative when she feels comfortable to speak about the issue.

Justice Sujata Manohar who was the lone woman judge on the three-judge bench that laid down the Vishakha guidelines has expressed that it may be the right time to rethink the guidelines after looking at the

Going back to 1997, in the absence of the Vishakha guidelines, the only saving provision lay under the Indian Penal Code, 1860. However, criminal prosecution under different sexual Harassment provisions, namely Section 354 (assault or use of criminal force to outrage the modesty of a woman), 309 (words, gestures or act intended to outrage the modesty of a woman) and 376 (rape) is barred by a limitation period of 2 or 3 years. So what about sexual harassment complaints arising earlier? What happens to the legal recourse of harassment in such cases? Is it time to rethink and re-work the Vishakha guidelines to include past incidents?

way sexual harassment is being dealt with and the preventive/remedial measures available as of today. She added that it was time to reexamine the whole issue and look at grading different kinds of sexual harassment to denote importance to the issue.

This has received encouragement from the legal fraternity and academicians who have studied the issue in depth. Practicing advocate and external member of the ICC of Bharati College under Delhi University points out a precarious problem with undertaking the ICC route where he explains how the composition of the ICC can be a hindrance since it is composed of internal members. “The fact that internal members make up the ICC in any organization; there are chances that it may be misused to save higher-ranking officials of the organization by these members who may be lower ranked in the same organization and forming part of the ICC, due to fear to their own jobs. Therefore, it becomes very important to ensure that the ICC remains unbiased towards both the parties”, Mehta said.

Another issue that presents problems if one undertakes resolution through ICC is that the punishment may not be in consonance with the incident of sexual harassment. This is because, under the ICC punishment mechanism, one can only expect non-criminal prosecution like transfer, demotion and or termination of accused. For a harsher and criminal prosecution, the way to go is through the IPC provisions of Sections 354 and 309, where the punishment may include jail for a maximum of 3 years and under Section 376 where it can extend to life imprisonment. Cases under this route, however, can take years before they are resolved.

Some legal experts are also of the opinion that the incidents that do not fit the 3-month deadline under the POSH Act can always be addressed under the IPC provisions, deeming the framework to be ideal as it stands today. “We cannot blame the law for it as nobody was remedy less at any point in time. If it wasn’t through an internal mechanism, there were provisions under IPC. One cannot tell the court that despite having a remedy, it was not exercised and the delay should be condoned. An example under the #MeToo movement, whether of M.J. Akbar or Vinod Dua – how to prove these allegations dating back 10-20 years? Sexual harassment is in any case very difficult to prove – it’s your word against somebody else’s. When you make something an offence, you also need to see the probability of getting it proved in a court of law”, lawyer Ashish Dixit weighed in.

Doing away with the limitation period altogether is challenging and can open a Pandora’ box as it will be prone to misuse. There has to be some kind of closure for past incidents where evidence collected from witnesses’ plays an important role in prosecution. The best bet here would be harmonization of the limitation period under the provisions of the IPC and POSH. For this, the legislature can look at remodeling the legal framework and ironing out the deficiencies to arrive at the best solution. Apart from ensuring safety for a woman at the workplace and beyond, this will go a long way in restoring their faith in the Indian judicial process.

With several allegations dating back to 10 or even 20 years ago, the question of how they can be addressed under the existing legal provisions gains precedence. A major flaw that needs to be addressed in cases of institutional sexual harassment under the 1997 Vishaka guidelines that were superseded by the Prevention of Sexual Harassment of Women at the Workplace Act, 2013 is its failure to apply to cases retrospectively. This translates to cases

Of sexual harassment at the workplace before the enactment of the Vishaka guidelines finding no or little chance of legal redressal today.

Justice Sujata Manohar, the lone woman Supreme Court judge who was part of the three-judge bench that laid down the Vishaka guidelines in 1997 to address sexual harassment agrees that it is “time to rethink” the law and frame new norms in this regard. “It is time we need to rethink how to deal with sexual harassment, especially in cases, where the incident has taken place in the past. In these circumstances, the Vishakha guidelines especially need to be re-examined with regard to the preventive and remedial measures for the woman,” she said, according to an Indian Express report.

Her views have struck a debate on the deficiencies in the existing legal provisions and new norms that need to be adopted to address the different kinds of complaints and incidents of sexual harassment. The conversation it has initiated around the needed change is welcomed by Senior Advocate Rebecca John who said, “I am in complete agreement with Justice Sujata Manohar; we have said this often enough to both policymakers and at seminars that while the POSH Act is a good first step, it needs to evolve because it’s only when you put a law into operation, you become aware of its shortcomings.

She weighs in on the pertinent issue of the 3-month limitation period to be followed under the Vishaka guidelines. “Vishakha guidelines came into effect only in 1997 and then the Act was passed by parliament in 2014 – so what happens to the multitude of complaints that relate to a period when there was no statutory remedy? The internal complaints committee (ICC) should be given the right to condone the delay in

Justice Sujata Manohar, the lone woman Supreme Court judge who was part of the three-judge bench that laid down the Vishaka guidelines in 1997 to address sexual harassment agrees that it is “time to rethink” the law and frame new norms in this regard. “It is time we need to rethink how to deal with sexual harassment, especially in cases, where the incident has taken place in the past. In these circumstances, the Vishakha guidelines especially need to be re-examined with regard to the preventive and remedial measures for the woman,” she said, according to an Indian Express report.

given circumstances. The committee should have the right to look into complaints that belonged to a different time period, and the delay, if just cause is given, should be condoned”.

The composition and structure of the ICC also pose difficulty particularly in cases where the allegations are made against those who occupy high positions in the workplace. “The requirement of having majority internal members as part of the ICC needs to be relooked into so as to avoid the potential misuse of influence by the high-ranking official against whom the complaint is made on other committee members of lower rank”, John adds.

While the in-house workplace mechanism of going through the ICC in sexual harassment cases may penalize to the extent of termination, demotion, postings of the accused to another place, the criminal prosecution under IPC laws is far stricter. But cases under IPC face their own challenges as they can go on for years. The best bet to address this would be to harmonize the two legal options by having norms allowing the courts and ICC to condone and take cognizance of cases beyond their respective limitation periods.

Few lawyers and experts, however, argue that the provisions under IPC are sufficiently abled to address the problem of limitation that arises under the POSH Act since that period is longer and the criminality harsher under it. “Having a 3- month timeline under the workplace mechanism is in the background that it becomes difficult to gather evidence to prove the allegations as more time passes. Many times, the accused is no longer working with the organization when allegations are raised. The problem is not really with the law; it is with crossing the first threshold of a filing a complaint because once that is done then both mechanisms are available. But cases dating back are better addressed under IPC since it becomes difficult for the ICC to deal with such complaints in a fruitful manner”, said advocate Aishwarya Bhati.

Through October, a flurry of accusations of sexual assault and harassment have been leveled by several women against politicians, journalists, members of the film industry under the #MeToo movement igniting the need to question the legal framework and if it is adept at handling these cases to ensure that the workplace remains a safe and conducive working environment for women.