Co-authored by Shefeena
The cases of sexual harassment in the educational spaces have been on the rise. This, despite the legal system enunciating guidelines, in the wake of serious incidents, protests and movements. While certain loopholes persist, these guidelines also extend to the educational institutions that mandates setting up a redressal mechanism on an urgent basis. However, when it comes to issues like mental harassment in such spaces: the legal system is seen struggling with the lack of vocabulary and codes to capture this. The resultant effect is that the laws applied to address sexual harassment is instead applied to also address cases of mental harassment, which actually would fall outside of the purview of provisions dealing with sexual harassment.
The provisions to address sexual harassment in most university spaces is far from adequate and then, reading the cases of mental harassment through the provisions to address sexual harassment, despite the development in technology and awareness regarding mental health, prevents a separate scrutiny and the setting up of redressal mechanisms that prioritise mental harassment. This, in turn, lets the perpetrator responsible for mental harassment walk away with impunity, in case grounds of sexual harassment are not found. During COVID-19 times, this has only worsened, given that the mode of working shifted to digital spaces that come with serious risks of privacy breach, adding to the vulnerability of the students and researchers at college and university levels.
Mental Harassment and Redressal Through The Legal Lens
The judiciary in India has been banking on the following sections to adjudicate on cases related to mental harassment broadly: Section 294 (Obscene acts and songs), Section 354 (Assault or criminal force to woman with intent to outrage her modesty), Section 498A (Husband or relative of husband of a woman subjecting her to cruelty), Section 509 (Word, gesture or act intended to insult the modesty of a woman), Information Technology Act, 2000; Section 67 (Punishment for publishing or transmitting obscene material in electronic form and for publishing or transmitting of material containing sexually explicit act, etc., in electronic form). Note that these are crimes broadly related to sexual harassment and mostly revolve around issues of domestic or marital discord.
The set of adjudication flows from a spate of cases treated as judicial precedents like the Vishaka & Ors. vs. State of Rajasthan, the L. Nagaraju vs. Syndicate Bank and Ors, High Court of Andhra Pradesh, 2013. The Internal Complaints Committee or ICC as a quasi-judicial body was thus envisioned by the Supreme Court of India in its landmark 1997 judgment in the case of Vishaka vs State of Rajasthan. The court laid down guidelines for the prevention of sexual harassment at the workplace, which later came to be known popularly as the Vishaka Guidelines codified through the The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, also known as the POSH Act. The related Act specifically provides for redressal of complaints of sexual harassment only. While the Act is an essential measure for questioning the power hierarchy and the privilege that those in dominant positions enjoy, the necessity of laws that underline mental harassment not as a supplement to sexual harassment is extremely necessary.
Further, given the nature of cases related to mental harassment, the evidential grounds are very slippery and this complicates when we do not have a separate provision to cover mental harassment exclusively. Despite this, to date, the term “Mental Harassment” has not been specifically defined under the Indian Penal Code, 1860 (IPC) and there are no separate provisions in the IPC to address interpersonal forms of mental harassment outside provisions covering sexual harassment generally or in educational spaces, particularly.
At the maximum, institutions can set up a grievance redressal cell, but the question arises: what is to be done afterwards, once a case is filed through such bodies, when no separate handbook of procedures or guidelines have been produced so far which may help direct the course of such complaints and inquiries? As a result, one has to rely on the personal discretion of the people in positions of authority to decide the line of inquiry which might change from case to case, thus paving way for a lack of procedural uniformity.
Evaluating Redressal Mechanisms and The Role of Student Organisations as Supplementary Forces
A lot has already been debated with regards to the loopholes in bodies like the ICC in educational spaces. In terms of its constitution, although the ICC includes one external member, this is only a piecemeal solution to the problem of impartiality. The presiding officer of the ICC still has to be a “woman employed at a senior level at workplace” under the 2013 law. This leaves junior-level employees unrepresented and ensures that hierarchies of power are maintained.
It has been mostly agreed that the GSCASH, established in response to the Vishaka Guidelines in Jawaharlal Nehru University, was hailed as a model superior to the ICC, which has however been disbanded in universities where it existed prior. Therefore students and scholars only are left with ICC as their first option, even though only 15.7% of the students filed an official complaint with any relevant committee in the institutions. It is at such junctures that the student organisations play a vital role in making the university spaces responsive, to mobilise and force institutional mechanisms to act responsibly in issues of sexual harassment and mental harassment, which also earns them the confidence of the students in such spaces.
Thus, their role cannot be negated as their structure and functions make them cross-institutional. Undoubtedly, bodies like GSCASH in few institutions point to the constructive changes which movements led by students’ organisations have resulted in.
However, when certain bodies like GSCASH are dismantled and trust in ICC is already at a low, the role of student organisations becomes humongous, in terms of easy reach and accessibility. however one should not overlook the power relations within these organisations as well, that play out for those in positions of authority, or those who cloak under social justice narratives, patronising these spaces to marginalise the already marginalised sections of students.
The existence of internal redressal mechanisms within these organisations and how these handle complaints against their own members thus becomes a comment on the extent of their progressive politics. The question therefore arises: Do these student organisations also have any internal mechanism or body to address complaints of sexual and mental harassment? If no, then how do these organisations go about, when there is, for instance, a case against their own members? Even if ICC rules against such a member, what do these organisations do in order to prevent any political participation of the perpetrators across institutions? If they do act, then what is the manual or handbook which mandates such actions or do such procedural manuals even exist in the first place? If the organisations justify that they follow their constitutional provisions, even then, without revisions and further additions relevant to the context, constitutional commitments cannot hold.
Institutional mechanisms have to be effective and sensitive in addressing these cases and they must be strengthened. However if they backtrack, student organisations, vouching for the cause of social justice come into picture. While student organisations can never be a punitive body, or act on behalf of a court or police, they are the platforms for immediate and as well as transformative engagements. While the institutional body is responsible for further legal measures, the student organisations have to take up the reformative measures within and ensure that such abusers are not shielded or cloaked under the politics that the organisations champion.
How is this supposed to be done, when no organisation has a separate redressal body or even a handbook or procedural manual, differentiating and dealing with cases of sexual and mental harassment, to start with? With all the limitations, these organisations exert a great force potent of barring the space or platform provided to the perpetrators, no matter how valuable they must have been to the organisation and/or society before. It is important that these measures be considered as supplementary to the institutional redressal mechanisms.
Reiterating that in instances of sexual harassment, though mental health cannot be seen through a separate plane, at the same time, cases of mental harassment independent of sexual harassment are valid too and need a separate provision with corresponding handbooks for prompt action.
It is also time not only for legal bodies, but also for student organisations to revise their vocabulary, with shifting modes of work, in relation to the former as well as to view the latter as a distinct terrain that requires its own procedures, redressal cells and expertise.
The authors are currently pursuing research in Political Science. You can find Shefeena on Instagram.
Featured image source: Hiscox