Gender-based violence stems from systemic malaise

Upneet Lalli

Penal Reforms Expert

FRAMING laws is only a limited solution for gender-based violence. A decade ago, the Criminal Law Amendment Act of 2013 was passed against the backdrop of outrage over the Nirbhaya gangrape. By way of this amendment, the definition of rape in Section 375 of the IPC was broadened and several new offences were recognised and incorporated into the IPC, e.g. voyeurism, stalking and sexual harassment (Section 354A). The Act also amended certain existing sections, making them more stringent.

A decade later, crimes against women have not reduced. There were nearly 3 lakh cases of crimes against women in 2013; in 2021, the number increased to 4.28 lakh (Crime in India, 2021). Women continue to be unsafe both in private and public domains.

The Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) was adopted by India in 1993. It recognises that “violence and harassment in the world of work can constitute a human rights violation or abuse.” Prior to the Vishakha judgment of 1997, there were no specific guidelines to deal with cases of sexual harassment at the workplace. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, was enacted to provide a safe workplace for women. The Act was widely welcomed and expected to meet the needs of women’s safety. However, the Supreme Court recently flagged serious lapses in the implementation of this legislation. The conundrum lies in the application of the Act, marked by a gap between its broad, well-meaning provisions and their reluctant, if not shoddy, implementation.

The unhindered ability to file a complaint is the first step towards securing justice. Unfortunately, multiple factors and barriers may prevent women from disclosing incidents of violence and harassment at work. Some of these include power dynamics and fear of professional repercussions, lack of faith in the internal committee, and fear of reprisals, as well as concern for their reputation. Some individuals may opt to confront their harassers directly, others may engage in strategies to avoid or deflect harassment, and still others seek out alternative employment.

The culture of silence is being challenged today in the country. Women wrestlers have spoken up about the alleged sexual misconduct and blatant misuse of power by Brij Bhushan Sharan Singh, the Wrestling Federation of India (WFI) president and a BJP MP.

“The purpose of law is to prevent the strong (from) always having their way,” said Roman poet Ovid. Bhanwari Devi, Rupan Deol Bajaj, Ruchika Girhotra and the women wrestlers have all had their own struggles while seeking justice.

Globally, the sports environment is recognised as a breeding ground of sexual harassment and assault due to the power dynamics and the idolisation of masculinity. The Larry Nassar scandal in the US had shed light on the painful reality of abuse of adolescent athletes. In a highly aspirational environment, abuse and harassment by figures in a relationship of trust need to be severely dealt with. Misogyny and devaluation of women should be replaced by dignity, respect and honour, not only when female sports stars win medals but also in daily interaction.

Sexual harassment is of two types: quid pro quo and ‘hostile work environment’. Quid pro quo harassment is related to the offer or inducement of benefits in return for sexual favours. ‘Hostile work environment’ harassment covers conduct that makes the workplace environment repulsive to the victim due to her gender. Many organisations, including sports bodies, have not constituted Internal Complaints Committees (ICCs), which are mandatory under Section 4 of this Act. Many of those established do not have an external member.

The sad reality is that invariably, these ICCs are hurriedly constituted on an ex-post facto basis, after a complaint is raised. Having an independent and expert external member is important for an unbiased inquiry. After all, internal members are part of the power structure and the lack of independence can make the protective edifice envisioned by the Act crumble. The inquiry through an ICC has to be completed within three months of the receipt of the complaint. Timelines for the employer to act on the recommendations are specified. These provisions seem to have been totally ignored while dealing with the complaints of women wrestlers.

The pervasive pattern of gender violence shows that it is not an individual anomaly, but is the result of systemic and societal conditions that perpetuate violence against women. For most women, given the endemic nature of the abuse and the lack of punitive action, it is ‘normal’ to shrug away catcalling or inappropriate jokes even though these make them feel very uncomfortable. This normative behaviour is an example of the diverse mobilisation strategies adopted by women in response to sexual harassment — the choices are framed as per personal and social contexts. As a community we cannot leave it to the aggrieved to respond and we should be cognisant of the social pressures on victims.

From my experience as an external member on some ICCs, it is clear that while following the principles of natural justice is essential, it’s also important to create a conducive environment without gender stereotypes. Training sessions on the theme can dispel gender-based assumptions and change deep-rooted mindsets. Men resist the implementation of the law for the threat it poses to their own status privileges, while women ignore the protection of the law, fearing further loss in their position.

The first step to change social norms is to speak up. More broadly, society needs to collectively dismantle the systems that uphold a toxic work environment, idolise masculinity and condone sexual violence. Specific focus on changing the culture should be a priority; this should start in every home.

We also need to be fair. The nature of the offence, its severity, intentionality and pervasiveness need to be considered to deliver justice to the victims. Why not integrate restorative approaches into the options available for dealing with sexual harassment complaints? The survivors in many cases may not want a punitive approach but an acknowledgment of the harm. Failure to acknowledge wrongful behaviour is not only insulting but can also escalate re-victimisation. Sexual harassment has debilitating consequences for both the victims and society as a whole. We need to adopt approaches that promote reflection rather than denial. Only then will behavioural change happen.

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