Inclusive rights, inclusive protection: Sexual harassment at Universities

by Gatha G Namboothiri, graduate of West Bengal National University of Juridical Sciences

Animation courtesy: Freepik.com

Two days ago, the Supreme Court of the United States of America, took the long awaited decision of extending civil rights at the workplace to LGTQ+ persons. During its inception, the Civil Rights Act, 1964 excluded women from its scope and until now, excluded all LGBTQ+ persons as well. Through this decision, the scope of sex-based discrimination has been extended to include discrimination based on sexual orientation and gender identity. Sexual Harassment has also been considered to be a form of sex-based discrimination since the crime itself is intrinsically linked to gender and sex. In doing so, the Supreme Court has made the Civil Rights Act, 1964, keep up with the times and include persons of any gender and sexuality.

In India as well, progress towards inclusivity has come in waves. The first step began with the Supreme Court judgment- Vishaka v. State of Rajasthan, which recognised that protection against sexual harassment emanated from the right to equality for women. Through this judgement, the Supreme Court advised the Central Government to enact a legislation for the same. It took 16 years for this advice to materialise. In 2013, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act (POSH Act) came to force. It offered long overdue statutory protection to women from sexual harassment at the workplace and stipulated redressal mechanisms for the same.

The path to safer working environments for people of all gender identities had more developments to come. In the wake of the Delhi gang-rape case of December, 2012, the University Grants Commission (UGC) - a statutory body that determines the standards of university education - set up a Task Force called the SAKSHAM committee. The SAKSHAM committee was to assess and review the shortcomings of gender sensitization and redressal systems with respect to sexual harassment. The report noted with concern that -

“the weakest aspect of our institutions of higher education is their lack of gender sensitivity.”

In 2014, the Supreme court, took a leap towards inclusivity through its landmark decision in NALSA v Union of India. Through this judgement, transgender rights were finally recognized as a third gender in our nation. The judgment highlighted the severe human right violations that had become a lived reality for the community and instructed the government to make inclusive laws, sensitive to the needs of the trans-community

Following the footsteps of this progressive decision, the UGC released its Regulations, to prevent and redress sexual harassment, applicable on all higher educational institutions (HEI). These Guidelines laid down the responsibilities of all HEIs to combat sexual harassment and commit itself to a zero-tolerance policy towards sexual harassment. Despite addressing only women it its title, the UGC Regulations ensured inclusivity by stating that Universities have a responsibility to-

“act decisively against all gender based violence perpetrated against employees and students of all sexes recognising that primarily women employees and students and some male students and students of the third gender are vulnerable to many forms of sexual harassment and humiliation and exploitation.”

The UGC Regulations also identify ‘vulnerable groups’ who are more prone to harassment. Rather than attaching a strict definition to ‘vulnerable group’, it recognises that vulnerability can be socially compounded by different factors such as religion, region, caste, sexual orientation etc.

While some have appreciated the UGC for taking a step further to protect all forms of sexual violence, there have also been criticisms by those who thought of this as a move that dilutes the Visakha guidelines and POSH which were created to protect women specifically. However, it cannot be contested that this regulation goes a long way in promoting intersectional feminism, by protecting members of the transgender community and other vulnerable groups.

Despite all these changes to law and policy, it was reported in 2017 that there was a 50% increase in sexual harassment cases in the country when compared to the year before that. The UGC Regulations have been ignored in many HEIs too. Many HEIs in India are in direct contravention of the UGC Regulations since they have not established effective ICs to tackle complaints of sexual harassment. HEIs that have constituted ICs often do not fit into the working definition of ‘functioning’ due to the lack of the student body member or the external member on the IC. From college protests to students taking to social media to share their experiences, college administrations are starting to held be accountable for their inaction.

Apart from the harsh consequences that accompany non-compliance, the Regulation also makes it mandatory for all HEIs to prepare annual reports on the status of cases handled by ICC in a year and submit to UGC. It also recognises and mandates the need to also have continuous training and monitoring systems for all sections of people in the institutions. The SAKSHAM report has indicative modules for HEIs to incorporate sessions on gender in their orientation and refresher courses. The need to revive counselling services in the campuses has also been recognised and highlighted.

Thus, the SAKSHAM Report and UGC Regulations, together provide for a strong framework which intend to create safe and inclusive campuses for all students students and a stepping stone for administrations to provide equal protection to marginalized and vulnerable groups. Admittedly there is a need to create awareness about ambit of the UGC Regulations and demand for stricter implementation. The system suffers from structural issues that are now being recognized and called out by students. There is still a long way to go before Vishakha is implemented in its true spirit, and it begins with steps like the UGC Regulations.