‘The im­pact of #MeToo will take time...’

Deccan Chronicle - - OPED -

‘Won­der­fully com­ple­ment­ing the #MeToo cam­paign, Time’s Up sounds out that while in the past all women have been vic­tims of sex­ism, male priv­i­lege and gen­eral abuse, those times are gone and such wan­ton abuse of dom­i­nance will not be per­mit­ted any longer.’

The #MeToo cam­paign is snow­balling into a big tsunami. Supreme Court lawyer BALAJI SRINIVASAN, who fights for women em­pow­er­ment and filed the first pe­ti­tion against triple ta­laq suc­cess­fully, talks to J. VENKATESAN on the im­pact and le­gal ram­i­fi­ca­tions of this cam­paign. Ex­cerpts: Fol­low­ing the global out­rage over the Har­vey We­in­stein in­ci­dent in the West, where the noted Hol­ly­wood pro­ducer was ac­cused of sex­ual ha­rass­ment by over 70 women, the #MeToo move­ment has ar­rived in In­dia, en­gulf­ing the whole me­dia and en­ter­tain­ment in­dus­try. Sev­eral women have bravely come out with sto­ries about ha­rass­ment and sex­ual abuse at work­place at the hands of the pow­er­ful and higher-ups. Why this cam­paign has started all of a sud­den and what is its im­pact?

The cur­rent wave of fem­i­nism glob­ally is cen­tred on tech­nol­ogy. Women are us­ing dig­i­tal tools as a means of ex­pres­sion, find­ing an es­cape from tra­di­tion sources of broad­cast­ing such as news­pa­pers and mag­a­zines, which were con­trolled in the past by the very per­sons who these women sought to call out. The emer­gence of an in­di­vid­ual voice, and a means to carry that voice to the peo­ple through the so­cial me­dia and the In­ter­net, is per­haps the sin­gle most im­por­tant fac­tor, which has given this move­ment the trac­tion it has gained.

The move­ment is not just a sud­den cam­paign, but a real evo­lu­tion in terms of how tra­di­tion­ally women are per­ceived in the work­place, at home and in pub­lic spa­ces. It is built on global move­ments seek­ing equal­ity in suf­frage, ed­u­ca­tion and eco­nomic op­por­tu­nity. It is a call from fem­i­nists across the world to value the con­tri­bu­tion of peo­ple who have not been given ac­cess to the cor­ri­dors of power and to recog­nise ba­sic tenets of equal op­por­tu­nity in all spheres of life. Per­haps a facet which is unique to In­dia in this move­ment is that women who are com­ing for­ward af­ter sig­nif­i­cant pe­ri­ods of time feel failed by the le­gal and so­cial sys­tems of the coun­try. At the time of the of­fence, they face sub­stan­tial re­sis­tance from friends, fam­ily and the pow­ers that be. There also ex­ists a so­cial stigma. To fur­ther worsen things, the lack of train­ing to our po­lice on these mat­ters, the lack of sen­si­tiv­ity train­ing and the glacial pace of our courts, all con­trib­ute to this move­ment to­day. The over­whelm­ing feel­ing is that per­haps where le­gal jus­tice failed so­cial jus­tice may pre­vail.

The short-term im­pact is there for all to see. There are so­cial boy­cotts, lay­offs and stig­ma­ti­sa­tion. The long-term im­pact will take some time, but hope­fully this is a step to­wards a more just world. Ever since Tanushree Dutta, in an in­ter­view, al­leged that ac­tor Nana Patekar mis­be­haved with her while film­ing a spe­cial song for Horn Ok Ple­assss in 2008, many well-known co­me­di­ans, jour­nal­ists and ac­tors have been named and shamed on the so­cial me­dia in the past few days as al­le­ga­tions of sex­ual mis­con­duct con­tinue to burst out. This has given rise to Time’s Up cam­paign. What will this cam­paign lead to?

Time’s Up is an ex­pres­sion of as­ton­ish­ment that cer­tain at­ti­tudes and prac­tices still ex­ist in the 21st cen­tury. It sounds the gong, call­ing out loudly and of­ten that cer­tain prac­tices shall not be tol­er­ated go­ing for­ward. Won­der­fully com­ple­ment­ing the #MeToo cam­paign, it sounds out that while in the past all women have been vic­tims of sex­ism, male priv­i­lege and gen­eral abuse, those times are gone and such wan­ton abuse of dom­i­nance will not be per­mit­ted any longer. This move­ment is now threat­en­ing the rep­u­ta­tion of ca­reers of sev­eral lead­ing per­son­al­i­ties, in­clud­ing Union min­is­ter M.J. Ak­bar, ac­tor Alok Nath, singers Kailash Kher, Raghu Dixit and oth­ers. What is the rem­edy avail­able for vic­tims and per­pe­tra­tors par­tic­u­larly when al­le­ga­tions are made af­ter 10 or 20 years? Is there a time limit for fil­ing com­plaints?

Sec­tion 468 of the Code of Crim­i­nal Pro­ce­dure pro­vides for a pe­riod of lim­i­ta­tion with re­spect to cer­tain of­fences wherein the pun­ish­ment pre­scribed is im­pris­on­ment un­der three years. With re­spect to of­fences where the pun­ish­ment pre­scribed is over three years, no lim­i­ta­tion is pre­scribed for fil­ing of com­plaints. Con­do­na­tion of de­lay is also pro­vided in cases where the court deems fit in the cir­cum­stances and finds that the de­lay was bona fide and not due to latches.

For se­ri­ous of­fences, the Supreme Court has reg­u­larly held that the ques­tion of de­lay in fil­ing a com­plaint may be a cir­cum­stance to be taken into con­sid­er­a­tion in ar­riv­ing at the fi­nal ver­dict. But by it­self it af­fords no ground for dis­miss­ing the com­pli­ant. A Con­sti­tu­tional Bench of the Supreme Court, in the case of Sarah Mathew vs In­sti­tute of Car­dio Vas­cu­lar Dis­eases and Ors, 2014, which in­ci­den­tally also had the present Chief Jus­tice of In­dia Jus­tice Ran­jan Go­goi in its quo­rum, found that sev­eral of­fences which have lesser pun­ish­ment may also have se­ri­ous so­cial con­se­quences, and thus there ex­ists a pro­vi­sion for con­do­na­tion of de­lay in the statute it­self. In light of the law laid down above, the rem­edy for vic­tims is to ap­proach the courts and the po­lice and make com­plaints. For less heinous of­fences, they shall have to ex­plain to the court the de­lay, and un­like in civil courts, the crim­i­nal courts also have a duty to ap­ply their own mind and sat­isfy them­selves that the de­lay was due to some bona fide ex­ten­u­at­ing cir­cum­stance. For grave of­fences such as mo­lesta­tion and rape, the courts are bound to take ac­tion un­der law. Per­pe­tra­tors will have to face trial. They are pre­sumed in­no­cent un­til proven guilty. They are at lib­erty to prove to the court that the of­fence was not com­mit­ted. The bur­den of proof is on the per­pe­tra­tor, not the vic­tim. In­dia is tra­di­tion­ally a con­ser­va­tive so­ci­ety, where dis­cus­sions about sex or sex­ual ad­vances are still a taboo for women. Once the rep­u­ta­tion has been tar­nished, how the dam­age done can be reme­died?

These move­ments are all about break­ing con­ven­tional stan­dards of what is ac­cept­able, what is taboo and whether the rep­u­ta­tion of the woman is ac­tu­ally tar­nished. The point of the move­ment is that the shame is of the ac­cused, not the vic­tim, and that the tra­di­tional no­tions of be­ing de­mure, docile and will­ing to take abuse are no more true. The back­ing that these move­ments have re­ceived is fur­ther a proof that the ques­tion of what is tra­di­tional, con­ser­va­tive and taboo is chang­ing. This is all made pos­si­ble through greater ac­cess to tech­nol­ogy. There is an al­le­ga­tion in cer­tain quar­ters that those women who level al­le­ga­tions of sex­ual ha­rass­ment are do­ing with a mo­tive to de­mand huge amounts as com­pen­sa­tion and to drop the cases. Is there truth in these al­le­ga­tions?

These have to be gauged on a case to case ba­sis. That said, move­ments with such grass­roots sup­port can­not be with­out some el­e­ment of truth in them. In­di­vid­ual cases aside, the cause and the move­ment can­not be faulted. Can the Sex­ual Ha­rass­ment of Women at Work­place (Preven­tion, Pro­hi­bi­tion and Re­dres­sal) Act, 2013 be in­voked against the per­pe­tra­tors to take the com­plaints to the log­i­cal end? But in the #MeToo cam­paign, so far no one woman or girl is will­ing to file a for­mal com­plaint which can re­sult in in­ves­ti­ga­tion and fil­ing of chargesheet. In this con­text can the al­le­ga­tions be treated only as a “name and shame” threat with some ul­te­rior mo­tive?

The Act al­lows for com­plaints to be made within 30 days of the in­ci­dent, and in case of de­lay within an ad­di­tional 30 days. If com­plaints are made within time, the Act is a po­tent tool in the hands of vic­tims to take strict ac­tion against the per­pe­tra­tor of such crimes.

The “name and shame” is not an ul­te­rior mo­tive, but as stated ear­lier a call to so­cial ac­tion. These vic­tims have felt that they have been failed by the le­gal sys­tem and the so­cial sys­tem of the past, and are now us­ing the new so­cial aware­ness to call out these preda­tors, so that these of­fences are not re­peated in the fu­ture. While there may be some false com­plaints, that brush can­not paint the whole move­ment in a fal­sity or gim­mick. Some of the em­ploy­ers have ex­pressed con­cern that the cam­paign might spread to busi­ness houses and has the po­ten­tial to dis­turb the work­ing at­mos­phere and em­ployee-em­ployer re­la­tions. Will this af­fect a com­pany’s over­all growth?

Ev­ery revo­lu­tion or evo­lu­tion has the po­ten­tial to cre­ate short-term dis­rup­tion in ex­ist­ing prac­tices. In the long term, this move­ment will in­crease the par­tic­i­pa­tion of women in the work­place and bring re­newed fo­cus to the ac­tual work in­stead of these ba­sic rights which were guar­an­teed 70 years ago. The move­ment has the means to cre­ate stronger busi­nesses, ro­bust economies and stronger so­ci­eties. It is also pos­si­ble that to at­tract pub­lic at­ten­tion these women go to the ex­tent of dam­ag­ing the char­ac­ter and con­duct of oth­ers. Can these women be pros­e­cuted for false com­plaints in the con­text of “Right to Pri­vacy” which is now a fun­da­men­tal right?

The law pro­vides for both defamation and ma­li­cious pros­e­cu­tion. If a case is found to be false, the com­plainants can be pros­e­cuted for abus­ing the ma­chin­ery of the law and for caus­ing loss of rep­u­ta­tion to the per­son com­plained against. That does not mean that the al­le­ga­tions should not be probed at all.

Balaji Srinivasan

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