HC judgments on sexual harassment
The High Court’s verdict was a `revolution’ said Salma Ali, president of Bangladesh Jatiya Mahila Ainjibi Samity (BNWLA)
In response to a Public Interest Litigation (PIL) filed by the BNWLA, the High Court ruled on May 14 that any kind of physical, mental or sexual harassment of women, girls and children at their workplaces, educational institutions and at other public places, including roads, was a criminal offence, punishable by fine and/or imprisonment. The ruling detailed sexual misdemeanour as `any kind of provocation through phone calls or e-mail, lewd gestures, showing of pornography, lurid stares, physical contact or molestation, stalking, vulgar sounds or any display of a derogatory nature.’ The HC Bench directed the government to make a law on the basis of its guidelines; until that happened, it’s guidelines would enjoy the status of law.
On May 17, `another’ revolution took place. The same bench, of Justices Syed Mahmud Hossain and Quamrul Islam Siddiqui, in response to a writ, declared that the decision of the Jahangirnagar University authorities to exonerate Drama and Dramatics chairperson, Sanwar Hossain Sani from charges of sexual harassment and, to suspend six students (which includes four women complainants) for allegedly assaulting him, was `illegal.’ It directed the JU authorities to hold a fresh enquiry?. The new one, according to the verdict, should be conducted by `neutral persons.’ It should accord with the HC’s recent guidelines. The writ petition, represented by barrister Sara Hossain and advocate Ruhul Quddus Babu, was jointly filed by Ain o Salish Kendra (ASK), Nijera Kori, Karmojibi Nari, professor Serajul Islam Choudhury, and journalist Kamal Lohani.
The complaints were not proven `beyond any doubt,’ there was no `hard evidence’ — that is what the JU Syndicate had said when clearing Sanwar Hossain of all charges in September 2008. Dismissing this, the HC Bench ruled that the standard of ‘beyond a[ny] reasonable doubt’ could not be applied to allegations of sexual harassment. A slap in the face of the JU authorities? Of the members of the Final Enquiry Committee, the Syndicate, and the university teachers association (JUTA) which had expressed `relief’ at the Syndicate’s decision and had advocated that `indisciplined’ students (and not a teacher who had sexually harassed women students) be punished? Beyond any reasonable doubt.
Of course, we are happy, thrilled, and excited at the HC’s recognition, at its validation of our long-standing demands and struggles. That unwelcome sexual attention is, well, just what it is. Unwelcome. Period. And as Fawzia Karim, the petitioner’s counsel, had argued in court, the absence of a law against sexual harassment, `rampant’ in Bangladesh, means that victims can not file accusations against the offendors.
But our moment of happiness is also overcast with feelings of grief and loss. We have not forgotten our sisters, those who were either killed for having rejected declarations of love, or took their own lives at the humiliation suffered. Simi Banu, art student, taunted and harassed by local mastaans, committed suicide in 2001. Mohima Khatun, raped, killed herself in 2002. Shahinoor, a garment worker, raped, threw herself under a train, in 2003. Biva Rani Singha, a college student, kidnapped and raped for a week in 2003, later became mentally unbalanced. Farzana Afrin Rumi, a college student, hanged herself when a local group of thugs barged into her house to kidnap her, in 2003. Alpina, a class four student, killed herself after being assaulted in front of her mother, in 2003 (Farzana Rahman Shampa). Chameli Tripura, nine years old, was raped and killed in Ramgarh, CHT, in 2008. And many, many more. Killed. Committed suicide. Became mentally ill. Acid disfigurement. Humiliation. No, we have not forgotten our sisters. Nor have we forgotten sub-Inspector Bashar who went to Simi’s house and insulted her parents. He advised them to control `her’ movements. He filed a general diary (GD) against her, instead of her harassers. Nor have we forgotten countless police officers who have repeatedly refused to register complaints made by women and their family members, distraught and angry, seeking safety and protection through legal means.
It was, after all, a bloody revolution.
Will things change? Krishnokoli, a young singer and cultural activist, doesn’t think so. Mere court verdicts are not enough. The political structure of the country needs to be altered first (New Age, May 15).? I understand and sympathise with her misgivings as I turn to look at neighbouring India, at the famous Vishaka judgment (Vishaka and others vs State of Rajasthan and others, Supreme Court, 1997), which is known to have informed our own HC judgment. The Vishaka PIL arose out of the gang rape of Bhanwari Devi, a member of a group of women called sathins, trained by the local government to do house-to-house social work at the village level, in exchange of honorariums. Bhanwari Devi, as part of a government campaign against child marriage, had tried to prevent the marriage of a one year old girl. The family, who happened to be high caste, were outraged at Bhanwari’s audacity. Five men, including the girl’s father, gang-raped her in her husband’s presence. The village authorities, the local police and doctors teamed-up with the rapists: police were reluctant to record her statement, two government doctors refused to examine her. When she finally took her case to the state criminal court, the accused were acquitted. The judge declared that it was not `credible.’ Upper caste men would surely not stoop as low as raping a lower caste woman? The humiliation and violation of the court process, says Naina Kapur, a New Delhi-based lawyer, led her to initiate the Vishaka petition. She, like many others, was frustrated by the criminal justice system’s inability to provide tangible remedies, restore the dignity of the victim, address systemic issues, and to create social change (Avani Mehta Sood, 2006).
The Vishaka PIL has made a significant impression upon the public, says Sood, because it has led to the establishment of systems of legal accountability. It has created tremendous awareness and open acknowledgement of sexual harassment. The judgment has had a huge impact on universities and large workplaces. Women now know that there is a law, and as a human rights lawyer put it, “It makes a big difference to people harassing women as well, to know that they can be called upon it.” Awareness created by the Vishaka decision has also led to many more cases being filed by women victims, at the HC level. However, it has not yet been enacted (The Protection of Women Against Sexual Harassment at the Workplace Bill 2007), and the SC guidelines continue to be the law. Very few complaints comittees have been set up. Service rules have not been amended. The judgment has been flouted by both public and private employers. Social activists have claimed that the guidelines were too general, it did not cover the entire gamut of workplace relationships (for e.g., doctor molesting his patient). The unorganised sector does not fall under the ambit of the Bill. Investigations carried out by the inquiry committees have too often been bound by red-tape, leading to long drawn out cases, and thereby, delaying punishment for the harasser, and adding to the victim’s trauma. But continued activism has led to two significant interim orders being issued by the Supreme Court. One of these asks professional bodies (for e.g. the UGC) what steps they have taken to implement the Vishaka guidelines, while the other, clarifies that the investigation and report of the investigation committee is to be deemed final. Committees have also been directed to submit annual reports of complaints and actions taken, to the government.
By highlighting the problem of sexual harassment, the Vishaka judgment has simultaneously opened up questions and dilemmas over separating sexual harassment from, and its close intermeshing with, other forms of gender-based discrimination/harassment at workplaces (Kalpana Kannabiran and Vasanth Kannabiran 2002). As the authors say, the separation between professional victimisation and sexual harassment is never absolute. And there are other things too. Sometimes sexual harassment can become a weapon of retaliation for progressive dalit men who face offensive and discriminatory behaviour from upper caste and upper class, articulate women classmates and colleagues. Where systemic forms of discrimination and inequality run deep, where the legal system, in its entirety, overwhelmingly promotes unjust hierarchies, are changes possible? Or, to pose Caribbean-American writer, poet and activist, Audre Lordes’ words as a question: can the master’s house be dismantled with the master’s tools?
Not, in its entirety, no. But as I write this, it is also important to acknowledge the difference that it is bound to make at Jahangirnagar, to the lives of six young women and men-students, whose suspension will have to be withdrawn by the JU authorities. The difference that the second HC judgment will make to the lives of four young women complainants who had, against overwhelming odds, protested. Whose dignity — with the help of a new inquiry committtee composed of neutral persons, working in accordance with guidelines set by the HC — will be restored.
Laws, fortunately or unfortunately, are part of the political process. And, revolutions need to be created, and re-created. Again, and yet again.
Published in New Age 25 May 2009