In its verdict, the court said ‘the woman has a right to put her grievance at any platform of her choice and even after decades’. How significant is this?
In the Priya Ramani judgment, the court recognised as valid and legitimate women’s right to speak out against injustice and harm, decades later, and place in the public domain, even through social media platforms, the sexual harassment suffered by them at workplace. The passage of time will thus neither dilute nor besmirch her truth. This brings into question the relevance of the statute of limitation in cases of sexual harassment and this temporal limitation requires a re-examination. The verdict is groundbreaking, as it grasps the asymmetry of power at the workplace between the male boss and the female employee, and acknowledges that the sexual harassment and the subsequent silent suffering are both a function of power. A question that has haunted and hounded most women is why they did not complain soon after the incident of sexual harassment. The assumption here is that a woman, if really aggrieved, would promptly file a formal complaint before some recognised forum, such as the Internal Complaints Committee, or the police. Lurking beneath is the societal prejudice that the woman is lying, making a belated, false and motivated complaint to wreak vengeance and settle old scores with the male boss. The credibility or availability of redress mechanism is rarely part of this conversation. This judgment shifts the burden and argues that since the absence of an enabling redress mechanism left the woman without a remedy, her right to voice the injustice remains alive and cannot be extinguished through spurious arguments of laches (undue delay in asserting a right). Interestingly, by believing the testimony of the friend with whom Priya shared her experience contemporaneously, the verdict accepts that these truths are whispered privately between friends and it is only much later when the whispers grow into a resounding echo do they pierce the wall of silence.
The use of defamation to silence women who speak out is not new — you have had to deal with it yourself. While the verdict was a positive step, should there be a legal remedy against its use?
The law of civil and criminal defamation has been weaponised and frequently deployed to intimidate, stifle and silence women from calling out powerful perpetrators of sexual harassment. For instance, (TERI founder) RK Pachauri, Justice (retd) Swatanter Kumar and others filed civil defamation suits seeking a media gag and crores of rupees in damages. In my experience, this has had a chilling effect. Even as some women spoke out in the #MeToo movement, many shied away from narrating their harrowing experience of sexual abuse, fearing legal retaliation, to combat which they have scarcely any resources. This use or rather misuse of the law, is in the nature of SLAPPs, or strategic lawsuits against public participation, conventionally understood in the context of silencing critics of government and corporations. It is crucial that anti-SLAPP laws are developed, so that the fear of being prosecuted does not silence women and allow men in powerful positions to continue to sexually harass women with impunity. An antiSLAPP law is imperative to provide a level playing field for women and would be in conformity with the promise of right to life with dignity under the Constitution.
In the long fight of women against sexual harassment and for the right to equality, which continues and will continue, how should we view this judgment?
This judgment marks a historic step forward in the struggle for equality at the workplace for women. Reiterating the jurisprudence of the landmark Vishaka judgment, it recognises sexual harassment as a constitutional breach of a woman’s right to dignity, equality and non-discrimination. The court, therefore, measures the contesting claims of reputational harm and truth speaking in public interest, within the constitutional framework and accords primacy to the woman’s right to speak out against the injustice, even belatedly, holding the same to be a facet of her right to life with dignity. The court has engendered the meaning of reputation and held that professional accomplishments, political position and power are not sufficient markers of a stellar reputation in the face of testimonies by women of sexual harassment and sexual violence, thereby making conduct towards women an integral aspect of reputation. The courageous legal defence strategy adopted by (advocate) Rebecca John and Priya Ramani laid the foundation for the court upholding that truth spoken in public good and in public interest is a defence against the claim of defamation. It leaves male perpetrators of sexual harassment with one less weapon in their legal arsenal. It disrupts the silence that enables impunity for sexual harassment. It upholds the right of victims and survivors of sexual harassment to speak their truth anytime, anywhere.
Globally, many powerful men had to resign, step back, lose their jobs as a result of the #MeToo movement. However, in India, that has not really been the case. Why do you think more men were not held accountable for their actions?
In countries like the US, men accused of sexual harassment not only faced consequences in the legal fora but were held to account by their employers, companies, coworkers and peers. In India, the #MeToo movement has shone the light on the gaps in the law, and the narratives on social media and elsewhere are a testament to the shortcomings of the legal process. While there were a few and at times over-compensatory reactions by some employers, most escaped without any accountability. We did not witness media houses, educational institutions, the entertainment sector, institutionalise in-house mechanisms and conversations, as mandated by the law. Even as we work on making the law more accessible and responsive to women’s complaints of sexual harassment, we need to introspect as a society. Even men named as serial sexual harassers faced neither economic nor social consequences. The example of KPS Gill would be pertinent here: despite being held guilty of sexual harassment, he continued to be offered high positions by the state. This can only lead to one inference, that sexual harassment at the workplace is not seen and understood as a wrong, a misconduct, an offence. This goes to the heart of the matter: the right to a life with dignity, which necessarily involves the complete absence of any form of sexual harassment, is a clarion call by women for a life of freedom and equality.