Sexual harassment in academic spaces: a comparative analysis of legal processes in India and Pakistan

Abstract

In this paper we attempt a comparison of anti-sexual harassment laws and policy frameworks in two south Asian countries - India and Pakistan - specifically in the context of higher education. There are a number of commonalities. Both countries consider sexual harassment a violation of fundamental rights enshrined in their respective constitutions. Both have ratified the UN CEDAW and the legislation on sexual harassment is in consonance with the 19th recommendation of the convention. For the redressal mechanism, the Indian and Pakistani laws rely on internally constituted committees. They have a specially designed policy (Pakistan) and regulations (India) to deal with sexual harassment in the higher education institutes. However, there are a number of points where Indian policy, legal framework and redressal mechanism differ from that of Pakistan. Indian law confers the powers of a civil court upon the IC (Internal Committee) but Pakistan has a Ombudsman over and above the IC and the powers of civil and high court are conferred upon him/her. The IC does not have the powers of a civil court. The Pakistani policy for higher education has made provision for a harassment monitoring cell and harassment monitoring officer. The IC works under his/her supervision. However, laws and policies in themselves do not guarantee prevention and redressal of sexual harassment. One also needs to look at the institutional practice. Therefore, based on our experience of working with the internal complaints committee in a social science institute for last ten years, we show how if implemented properly it goes a long way in achieving the larger goal of providing a peaceful and amicable learning and working environment for all irrespective of their gender. Many had felt that ICs would defeat the very purpose of the Act. The Justice Verma Committee report for example states that “the powers of courts cannot be simply conferred upon domestic committees.” The UGC handbook SAKSHAM however underscores the need for a civil redressal mechanism in the form of an IC rather than a criminal punitive one. What does our experience say? There are a number of challenges facing the IC. Implementation requires a constant interpretation and reinterpretation of the Act by the members of IC who are not always trained in law. The IC members have to often reach out and counsel the complainants specially if they belong to vulnerable groups before the actual written complaint is submitted and which may continue throughout the process. The law does not recognize this as part of the process of redressal. This we argue is only possible because of an internally constituted inquiry committee.