A Call for Freedom from Sexual Harassment, Violence and Discrimination- from Work Places, Home to the Streets

The brutal rape and murder of a junior woman doctor in the RG Kar Medical College and Hospital in Kolkata has shaken the conscience of the nation. The fact that a woman doctor can be brutalised so terribly, while being on duty, inside a government run hospital in a metropolitan city like Kolkata brought out the naked reality of all encompassing rape culture prevalent in our society. The shameful attempt by the college administration to portray the incident as suicide and subsequent attempts to shift the blame on the victim for ’being alone late at night’ generated a mass anger that has kept the movement for justice alive. A movement that started in the beginning of August has sustained itself till today exploring several creative modes of struggle. On the eve of Independence Day, a call for Reclaim the Night was sent out. Thousands of women cutting across class backgrounds, sexual minorities and other citizens flooded the streets at mid light all across West Bengal. The reverberation of the call was felt significantly in other states of the country as well. The call for Reclaiming the Night truly represented the spirit of the movement. The message was clear. Women and oppressed gender identities are here to reclaim the day and the night- for justice, equality and freedom.

Confronting Rape Culture

While demanding justice for the brutalised young doctor of RG Kar the movement has generated a flame that questions every instance of patriarchal dehumanisation of women and oppressed sexual identities. From every day sexual harassment on the streets, inside homes, on bus, train or metro, inside offices and workplaces to the patriarchal burden of honour and shame imposed on women- the movement has generated an aspiration to confront all. The independent assertion of women’s agency in terms of participation, articulation and leading the mass movement is clearly reflected in the determination of protesters to question the everyday normalisation of sexism and misogyny. Rape is after all a crime of power. Power that is systematically ingrained in every structure of the society, in our institutions, our everyday treatment of people based on their gender, class or caste.  The organisers of ‘Reclaim the Night’ protest have clearly articulated that they will refuse to accept any attempt to justify restrictions on the mobility, freedom and independent agency of women and other gender minorities in the name of ‘protection’.

The Flame That Must Challenge Today’s Patriarchal Regime

The spirit of Justice for RG Kar movement inspires us all to stand up to the misogynistic power structure that rules the country. Today, the country is ruled by a force that has a history of forcibly pushing back women’s quest of equality, justice and freedom. The ideological flag bearers of the RSS and Hindu Mahasabha that opposed the Hindu Code Bill ensuring advances in guaranteeing equal rights for women in the 1950s, are ruling the country for the last ten years. It is during the same time that we have seen public rallies in defence of rape accused by ruling party members from Kathua in J&K to Unnao in Uttar Pradesh. We have seen brutal crackdown on women students of BHU who rose up in protest against sexual harassment in the campus in 2017 and 2023. The women students of BHU, in the PM’s own constituency Varanasi, were forced under stricter restrictions on their mobility in the aftermath of the protests. Women wrestlers of the country like Sakshi Mallik, Vinesh Phogat and others were treated with same brutal force of the state when they started their protest against sexual harassment by the then WFI chairperson and BJP MP Brijbhushan Saran SIngh. The protest by women wrestlers have revealed the shameful fact the Internal Complaint Committees for dealing with cases of sexual harassment have either been non-existent or completely ineffective even in institutions like the Indian Olympic Association and Wrestling Federation of India.

Eleven Years Since Enactment of PoSH- What About Its Implementation?

The mass character of the Justice for RG Kar movement of 2024 is a reminder of the massive anti-rape movement that shook the country in 2012. The gang rape of a young woman in the National Capital of Delhi generated a mass outrage in 2012. The determinant intervention of the progressive forces in the 2012 anti-gang rape movement popularised the desire of freedom without fear for all women and oppressed sexual identities as against patriarchal protectionism that aims to impose restrictions on women’s mobility in the name of protecting them. It is the pressure of that movement that forced the erstwhile incumbent to bring several progressive reforms. The Justice Verma Committee was constituted to recommend necessary legal changes and institutional reforms needed to address and confront rape culture prevalent in the society. While some legal reforms have been accommodated according to the recommendations of the Verma Committee, several institutional reforms remain unaddressed till now.

The 2012 movement also brought about the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, popularly known as the PoSH act.  The PoSH Act replaced the Vishakha Guideline of the Supreme Court of 1997 that directed every workplace to constitute anti-sexual harassment cells for redressal and prevention of sexual harassment at workplace. Through the 2013 act, it is now mandatory for every workplace to constitute Internal Complaints Committees to prevent and address instances of sexual harassment at workplace.

The fact that the gruesome rape and murder of the young woman doctor happened at her workplace, the RG Kar Medical College while being on duty, makes it necessary to evaluate the steps taken by the government to ensure that Women and oppressed sexual identities feel safe at workplace and the workplace is devoid of gender discriminatory work culture that devalues and dehumanises the oppressed genders.

The Saksham Guidelines formulated by the UGC in 2013, after the enactment of the PoSH act, reviewed the situation of institutional measures taken by universities and colleges for ensuring safe workplace for women. Enquired after 16 years of Vishakha Guidelines that not only gave directions for constituting anti-sexual harassment cells, but was also followed up by a UGC handbook to every institute, the Saksham Report suggested that less than half of the educational institutes covered had some kind of grievance committee for women that included some cells attached to the anti-ragging cells. When asked whether the institute had any anti-sexual harassment policy, around half the institutes said that they have constituted a policy very recently. To emphasise again, this was after 16 years of VIshakha Guidelines of the Supreme Court. When asked whether any complaint had been received by the anti-sexual harassment committees, a large majority, around 83.5% answered that they had received no complaint of sexual harassment in the history of their institution. This points towards the silencing culture that prevails in our institutes that discourages women from coming forward and feel safe enough without the fear of repercussions to file complaints and seek justice. This also became a ground for the  institutes to claim that the issue of sexual harassment and gender discrimination does not affect their campus. The Saksham Report also pointed towards the overall lack of gender just campus spaces. The absence of available toilets, street lighting, adequate female guards, lack of communication modes for women students like buses for travelling at night. The institutional indifference towards the question of gender equality inside campuses was decisively brought out by the Saksham Report.

Six years after the implementation of the PoSH act a report titled ‘Status and Functioning of Local Complaints Committees under the Sexual Harassment of Women (Prevention, Prohibition and Redressal) Act, 2013’ was submitted to the National Human Rights Commission by SAFMA. As suggested by the title, the report assesses the efficacy of the implementation of the PoSH Act. It is important to note that the country saw a change in government at centre in 2014. The ground situation of the functioning of the institutional structures would be an important indicator of what has changed since the enactment of the law and a change in government. The PoSH act mandates every workplace to constitute an Internal Complaints Committee (ICC) and a Local Complaints Committees (LCC) in each district where less than 10 people are employed by the institute or the complaint is against the employer. Thus, the LCCs are important in terms of redressal of sexual harassment faced by vast majority of informal workers including domestic workers. The survey was conducted in three states of Delhi, Haryana and Odisha. The report reveals that while LCCs have been constructed by the local administration, the complete lack of visibility of the committees and lack of awareness about it among women employees bring out the fallacy of the situation. The absence of office space, permanent address, required staff and infrastructure needed to conduct the enquiry define the reality of the LCCs. The LCCs do not even receive complaints directly. The intermediate time for the complaint to reach the LCCs make it more difficult for the complainant to avail justice. The survey that took responses from women informal workers reveals that among those who acknowledged facing harassment at workplace, 47% chose to suffer the harassment, 24% tolerated not knowing any redressal option, 19.5% confronted the harasser and 19.2% left the workplace. Most of the respondents who faced sexual harassment, a whooping 65% believed that no action will be taken against the harasser. Such is the situation of prevention of sexual harassment after six years of implementation of the act. It is also a grim reminder of the fact that we are living in a time when woman employee working under the Chief Justice of India faced institutional silencing, victimisation and denial of justice when she faced sexual harassment by the Chief Justice himself in 2019.

It is important to note here that the four labour codes brought by the BJP regime at centre does not include the PoSH act in the realm of labour laws. The labour departments do not have any accountability in enforcing the PoSH Act. While the flame of gender justice lightened by the Justice for RG Kar movement must be kept alive for larger social change, the accountability of those who rule over the country must be fixed. The culture of shielding accused close to power, silencing and intimidating the survivor and institutional indifference in setting up procedures for addressing and preventing sexual harassment must be confronted. It is time we demand a gender audit from each and every institution. It is time we ask the incumbent- for how long do they plan to evade accountability?

Carceral Populism and Its Impact

The introduction of capital punishment for rape is emblematic of what feminist scholars call carceral populism—a form of governance that responds to public outrage by increasing the severity of punishments without addressing the root causes of crime. As feminists have noted, carceral populism does not serve the ends of justice. Instead, it deepens the majoritarian state's hold on society, while sexual impunity remains widespread.

This bill, much like the Bharatiya Nyaya Sanhita (BNS), which was implemented earlier in 2024, reflects the state's desire to appear tough on crime while failing to address the underlying issues of gender-based violence. The death penalty and life imprisonment may provide a temporary sense of justice to some, but they do nothing to dismantle the structures that enable sexual violence in the first place.

..Moreover, the bill glosses over the pressing need for gender sensitization among law enforcement and judicial officers. Legal mechanisms to support survivors, such as witness protection programs and trauma-informed judicial practices, remain absent from the bill. Instead of addressing these critical gaps, the state has chosen to focus on punitive measures that are unlikely to have any meaningful impact on conviction rates or survivor protection.

...Another glaring omission in the Aparajita Bill is the lack of attention to accountability within the law enforcement and judicial systems. The bill fails to address the role of public prosecutors, many of whom are appointed based on political affiliations rather than competence. As a result, special courts often suffer from the same legal incompetence that plagues the rest of the system.

...If the state is truly committed to protecting women and children, it must go beyond carceral populism and focus on the difficult, yet necessary, task of reforming the institutions responsible for delivering justice.

(Excerpts from the article "The Aparajita Bill: Legislative Populism Unvanquished" by Jhuma Sen, published in LiveLaw.in on 11 Sept 2024)