Workplace act could end up hurting women

When a law intern’s charges against a retired judge of the Supreme Court first hit the headlines early last November, New Delhi’s ‘season’ of parties in the convivial winter sunshine was just beginning. At one such gathering, some top lawyers were inclined to be amused by the incident. Nobody thought much would come of it, and some even joked that they were now thinking twice before offering their interns a celebratory chocolate or drink after the successful conclusion of a case.

A month later, the smiles at parties were considerably dimmed as the full implications of the new Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 sank in. It defined sexual harassment as “undesirable acts or behaviour such as physical contact and/or advances, a request or demand for sexual favours, showing pornography or even making remarks having sexual implications.” And the lawyers realised the potential for misuse inherent in its ambiguity.

In January, as yet another law intern’s accusations against a then-sitting judge of the Supreme Court hit the headlines, talk has suddenly turned to another consequence of these two harassment cases. What was laughingly lobbed as a ‘possible’ outcome of the interns’ allegations is now turning into a grim probability – female lawyers being left on the wrong side of a cordon sanitaire around major legal institutions and prominent firms.

Better to be safe than sorry, say many legal luminaries. Particularly since the Act protects women working in a voluntary capacity, contractual employees, probationers, trainees and apprentices. The women can get damages for the impact on careers and for distress and mental trauma. And their harassers could forfeit promotions, get fired, go to jail and/or pay compensation.

Of course if the case is found to be malafide, the complainant would face the same consequences, but no one really believes the latter would ever actually be carried out. Alarmingly, a woman senior advocate (a legal rank equivalent to a Queen’s Counsel in Britain) pointed out that female law students were already being discreetly weeded out or otherwise fobbed off from getting posts that brought them in the vicinity of India’s highest courts and best law firms. “More and more judges and my colleagues have decided to play safe, as there seems to be such a lynch mob attitude now when such accusations are levelled.

No one wants to be held guilty until proven innocent.” What I found even more distressful was her revelation that of late the parents of several of her female ‘juniors’ (young lawyers practicing under a ‘senior&rsquo had requested her to dissuade their daughters from becoming litigating lawyers. “They felt their daughters would not get married if they gained a reputation for being outspoken!” she said. And, of course, there was the unspoken issue of how ‘safe’ the profession was for young women in a very male-dominated profession.

Since 1966, the Supreme Court has elevated only five women – and 304 men – to the rank of senior advocate. But last year, the apex court surprised everyone by elevating three women simultaneously, including two who were members of the committee that framed the Gender Sensitisation & Sexual Harassment of Women at the Supreme Court of India (Prevention, Prohibition and Redressal) Regulations, 2013, approved last July.

Indeed, the Supreme Court seemed to almost anticipate the current controversy! However, high courts can and do designate senior advocates too, which is why there are more than eight women legal eagles now who hold that coveted rank. Interestingly, Indira Jaising – the additional solicitor general (the first woman to hold that post) who has been championing the cause of both the women law interns – was elevated by the Bombay High Court.

But her feisty defence of the two junior lawyers has caused considerable concern among her own colleagues, including women. Not rocking the boat when it comes to harassment in workplaces had kept a lid on a very real phenomenon as most women will readily admit. And putting individual traumas aside for the wider cause of their other female colleagues’ peaceful progress up corporate or professional ladders does seem to be an unfair expectation, especially from an assertive new generation.

Jaising’s maverick stand has raised hackles across genders, but at least she has warned peaceniks that times are changing. But the general atmosphere of alarm in legal circles is not helped by the rise in the number of sexual harassment cases being reported – and dismissed as being false or malafide. A senior (male!) lawyer told me that seven of nine such recent cases from corporate India handled by (female!) partners in his firm were adjudged baseless.

In most cases it was found that litigation under the new law was used by women as revenge for poor performance assessments and promotion denials by their superiors. Loosely worded laws enacted in haste as firefighting measures or social change agents are routinely abused. Section 498A of the Indian Penal Code, relating to harassment by husbands/in-laws of wives/daughters-in-law, is a prime example.

But that is not to say the law is unnecessary. The same principle obviously applies to the new law against sexual harassment in the workplace – it is needed because the phenomenon IS prevalent in many if not most offices and workplaces. That the Supreme Court formed its own regulations on this, however, also indicates that it is aware that the courts (and therefore the legal profession) are not immune either.

But keeping women – and therefore also potential harassment charges, frivolous or real – at arm’s length, surely cannot be the solution. Nor should witch-hunts be the alternative. Hopefully wiser counsel will prevail soon.

Original NEWS Source:- http://blogs.economictimes.indiatimes.com/SilkStalkings/entry/workplace-act-could-end-up-hurting-women