Workplace harassment law needs feminist lens; increasing woman's representation not enough: Kerala High Court

The Kerala High Court on Tuesday called for a feminist perspective to be factored in while drafting laws to deal with sexual harassment at workplace. .A Bench of Justices AK Jayasankaran Nambiar and CS Sudha made the observation while hearing matters concerning the Justice K Hema committee report on the working conditions of women in the film industry. The Court today opined that a new law may be introduced to regulate working conditions in the film industry. Notably, it added that such a law should include a feminist perspective and also be intersectional, with due representation of the transgender community. "Something must be drafted with a feminist perspective. Just increasing female representation will not solve the issues. We need a feminist perspective. When we talk about women, we also have to talk about how that is a social construct and there are other persons who may associate with the social construct of woman. Transgender persons have to be taken into account. We need intersectionality," the Court said. .The Court added that there may be multiple disadvantages faced by women, beyond gender based issues."What are the problems faced by women who face multiple disadvantages. Either on account of their sex, caste, physical disabilities etc. such intersectionality also has to be considered for a legislation," the Court said.It said that these issues would be considered further when the Court hears the case next on October 3. "Since these are public interest matters, you all put your minds together. Let us have the draft of a legislation formed from a feminist perspective," the Court added on a parting note to the State's counsel. .Representing the State, Advocate General Gopalakrishna Kurup today pointed out that it is difficult for the State to intervene when it comes to unregulated workplaces such as film industry.He acknowledged that the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (PoSH Act) is applicable. However, he also noted that the Court's intervention was needed before Internal Complaints Committees (ICC) were required to be set up by film production houses. "The issue is complicated when it is an unregulated industry. The POSH Act exists and this Court previously directed the constitution of ICCs," AG Kurup said..The Bench noted that even the PoSH Act was introduced after a significant delay following the Vishakha case on tackling sexual harassment in the workplace."Even in Vishakha case, the (PoSH) Act was passed 17 years after the Supreme Court judgments. We cannot have a legislative vacuum of 17 years for this issue now. The bias against women in society is historic, knowingly or unknowingly. That is the mindset that has to change but that can only happen by citizens making the change internally. It is obligatory for the State to act on this. Silence is not an option," Justice Nambiar said..The Court proceeded to observe that a new law may have to be introduced for workplaces in the film industry, which could include alternative dispute resolution mechanisms such as mediation."Let us also not rely on POSH Act alone in this situation. There are several instances in the film industry that cannot be classified as an employer-employee relationship. How would the Act be able to deal with situations where a woman is seeking employment? While talking about institutional mechanism to deal with such issues, we can also talk about arbitration and mediation. It need not all be considered by courts and tribunals. There is a civil provision even in the POSH Act for mediation and arbitration," the Court said..The Justice K Hema Committee was set up by the Kerala government in 2017 following a petition by the 'Women in Cinema Collective' to study issues faced by women in the Malayalam film industry.The report, which was made public on August 19 in a redacted form had indicated that there was widespread sexual harassment and casting couch practices in the film industry.Several prominent members of the film industry have since been named as alleged perpetrators of sexual crimes, including rape.During the hearing today, the Court also raised alarm over the State's abject failure to act on these allegations despite having access to the report since 2019..[Read Live Coverage]