Does Bollywood Have Legalities to Hold the ‘Nana Patekars’ Liable?
India’s #MeToo moment? Not really.
While many have spent the last few days drawing parallels between the #MeToo movement in Hollywood and the courageous act of Tanushree Dutta speaking about the sexual harassment she faced in 2008 at a film set, certain important distinguishing features of the two are not to be missed.
Unlike the West, the biggest and the most vociferous of Bollywood artists have been almost cruelly silent on the issue, to the extent of not even acknowledging that sexual harassment even exists within the Hindi film industry. In fact, support for Nana Patekar is unabashedly being chorused by some people who were part of the film Horn Ok Pleassss.
Sexual Harassment in the Workplace
Sexual harassment at the workplace is one of the most sinister forms of discrimination against women. If ‘discrimination’ is shorthand for ‘inequality’, few things diminish a woman’s odds at being equal to men in a society more than an unsafe and hostile work environment, where she cannot realise her full potential and thrive.
The vulnerability of women increases manifold while working in male-dominated spaces, and places where the power dynamic between male and female co-workers prevents women from reporting incidents of harassment at the hands of their male counterparts. The survivor’s fear ranges from the possibility of losing her job to being shamed, and even worse, blamed for the incident.
Legal Framework for Women’s Safety in Employment
The disease of inequality has afflicted Indian society for ages, much like the rest of the world. The makers of our Constitution acknowledged and sought to address the problem by inserting certain provisions in the Constitution of India that both empower and obligate the State to take affirmative action to cure this evil.
The fundamental rights under Article 14 (right to equality and equal protection of law), Article 15 (right against discrimination on the basis of religion, race, caste, gender or pace of birth) and Article 21 (right to life and personal liberty) of the Constitution are the holy trinity of women’s right to equality. The State is under obligation to remove, by enacting a law, any hurdle that prevents women from achieving equal status in the society.
Until two decades ago, there was no effective framework of law for redressal of grievances related to sexual harassment of women at workplace. The judiciary stepped in, and in 1997 the Supreme Court in Vishakha vs State of Rajasthan framed guidelines for providing a safe environment of work for women and directed the State to enact a law for that purpose.
The Parliament complied with the Supreme Court’s direction by enacting the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 and the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 were framed by the government under the Act.
Just like the Vishakha guidelines, the Act applies to both public and private employment, in both organised and unorganised sectors. The terms “aggrieved woman”, “employee”, “employer”, “sexual harassment” and “workplace” have been defined in the widest terms to ensure that no form of harassment escapes the ambit of the law.
Sexual harassment, for instance, includes certain unwelcome acts or behavior, including unwelcome physical contact.
By including ‘unwelcome’ physical contact/conduct under the definition of sexual harassment, the law has given the survivor the authority to decide whether a particular act constitutes harassment or not. The offender cannot justify the act claiming absence of ill intentions.
Equally important is the provision under the Act which says that circumstances like interference with a woman’s work or creating an intimidating or offensive or hostile work environment for her, under certain situations, may also amount to harassment.
The guidelines under the Vishakha judgment and the 2013 Act, provide for mandatory steps to be taken by the employer for redressal of complaints regarding sexual harassment of women, which includes constitution of an Internal Committee to receive complaints of sexual harassment, at a workplace that has ten or more employees. The Act also provides for penal consequences for the perpetrator and monetary compensation to the survivor.
The 2013 Act also provides for imposition of a fine of Rs 50,000 on the employer for not complying with the requirements under the Act. A habitual offender under the Act may even be punished with cancellation of his license/registration required by him to do business.
The survivor is not without remedial measures merely because the employer has not constituted an internal committee; the Local Committee constituted under the law can receive complaints of sexual harassment.
A survivor of sexual harassment can report the incident to the police under the provisions of the Indian Penal Code, such as Sections 294, 354(A), 354(C), 354(D) and 509.
The Ministry of Women and Child Development has also launched an online platform called “SHe-Box” where complaints regarding sexual harassment at the workplace can be made.
Bollywood’s Policy Against Sexual Harassment (Or the Lack of It)
In December 2017, Menaka Gandhi, the Women and Child Development Minister, wrote to a bevy of production houses, which collectively produce the majority of films releasing every year in India, requesting them to take measures for implementing the law against sexual harassment in letter and in spirit.
If reports are to be believed, some of these production houses have in fact constituted anti-sexual harassment cells, pursuant to Ms Gandhi’s request.
If the minister felt the need to remind these “employers” of their legal and moral duty under the law in 2017, one can be certain that in 2008, when the incident reported by Tanushree Dutta took place, there existed no mechanism for a survivor of sexual harassment to obtain justice within the industry.
Several industries have guilds and associations that frame their own policies on sexual harassment and implement them in the form of codes of conduct and contractual clauses. Conspicuously, the Hindi film industry is not one of them. When Dutta objected to the behaviour of her co-workers, she was shown the door and replaced by another female actor.
Despite there being a system in place under the law to provide women with a safe and secure place of work, due to lack of proper implementation, it has not had the desired deterrent effect. The apathy with which the harassment faced by Tanushree Dutta was ignored and forgotten by all and sundry in the film fraternity, is proof that the industry desperately needs some gender sensitisation and awareness on the law.
No law, however strict, will solve the problem if the people responsible for its effective implementation are not sensitised to the need of its enforcement. Self-regulation and housekeeping at individual organisations will go a long way in bringing about the social change we all hope for.
And maybe, in future, women in the film industry will not have to think about putting their career in jeopardy, while telling someone, “You are not welcome”.
(Adeeba Mujahid is an Advocate-on-Record at the Supreme Court of India. She regularly practices before the Supreme Court and the Delhi High Court. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)
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