Addressing Sexual Harassment in Higher Educational Institutions

The recent months have thrown light on several failures of higher educational institutions (HEIs) to implement a proper mechanism to tackle complaints of sexual harassment in University campuses.

This is despite there being a specific law requiring college administration to have an Internal Committee (IC) to deal with sexual harassment on campus, just as it is required for workplaces under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. The challenges involved in tackling sexual harassment on a college campus, in many ways, resemble how such incidents play out at any workplace.

As such, there are several parallels between the PoSH Act, 2013 and the University Grants Commission (Prevention, prohibition and redressal of sexual harassment of women employees and students in higher educational institutions) Regulations, 2015 (“Regulations”) which apply to colleges and universities in India.

Both laws envision the constitution of an Internal Committee (IC) to hear and resolve complaints of sexual harassment, with several similar provisions concerning its constitution, term, procedure and functions. The law emphasises on the need for gender sensitisation, widespread dissemination of anti-sexual harassment policies, time-bound redressal of complaints and a zero tolerance policy towards sexual harassment.

The Regulations have built on and added to several provisions of the Act. For instance, the duties thrust upon HEIs when it comes to tackling sexual harassment are far more comprehensive than the obligations laid down for employers under the 2013 Act.

Whether measures laid down in the 2015 Regulations are implemented in their true spirit is debatable, between the imposition of heavily monitored, gendered dress codes and the questionable composition of ICs in several educational institutions.

All the same, it is worth being aware of the provisions laid down in the 2015 Regulations, even if only to throw light on the extent of its breach.

What constitutes Sexual Harassment in HEIs?

Sexual harassment under the 2015 Regulations is defined in terms similar to those laid down under the 2013 Act. The 2015 Regulations state that sexual harassment means:

“An unwanted conduct with sexual undertones if it occurs or which is persistent and which demeans, humiliates or creates a hostile and intimidating environment or is calculated to induce submission by actual or threatened adverse consequences…”

It includes unwelcome physical, verbal or non-verbal conduct of a sexual nature; demand or request for sexual favours; making sexually coloured remarks among other things.

Further, Regulation 2 (k) (ii) adds that implied or express promises of preferential treatment in exchange of sexual favours (quid pro quo arrangements), threats, creating an intimidating, offensive or hostile environment or humiliating treatment likely to affect the health, safety, dignity or physical integrity of a person are also circumstances that would constitute sexual harassment.

No tolerance for on or “off-campus” sexual harassment

HEIs include Universities, deemed Universities as well as colleges as defined under the University Grants Commission Act, 1958. Furthermore, “Campus”, includes not only the university or college location and institutional facilities (like libraries, residences, toilets etc.) but also:

• the places visited by a person in her/ his capacity as a student or employee of the HEI,
• the travel facilities to and from the institution,
• extended campuses,
• locations where field trips or study tours or excursions or internships or short-term placements take place,
• cultural festivals of the HEI,
• sports meets, and
• other activities where a person participates as a student or an employee of the HEI

A “student” includes those enrolled in a regular study programme, but also those who pursue such courses through distance mode and through short-term training programmes.Individuals who are in the process of taking admission to an HEI would also be treated as a “student” covered by the Regulations, if any act of sexual harassment takes place against such student.

Further, “workplace” has been defined broadly to mean an HEI campus including:

• any department, organisation, undertaking, establishment, enterprise, institution, office, branch, unit which is established, owned, controlled or is financed (wholly or substantially) by the HEI;
• sports institute, stadium, sports complex etc. used for sports or other activities relating to the HEI;
• any place visited by the employee or the student during the course of employment or study, including transportation provided by the executive authority of the institution to travel for study in HEIs.

Special provisions to tackle victimisation of complainant and witnesses

The Regulations attempt to tackle unequal power equations and stigma attached to sexual harassment by setting out provisions to tackle the victimisation of complainants and witnesses.  “Victimisation” refers to any unfavourable treatment meted out to a person with an implicit or explicit intention to obtain sexual favour.

Notably, Regulation 5 mandates that the IC should “ensure that victims or witnesses are not victimised or discriminated against while dealing with complaints of sexual harassment.”

HEIs have been empowered to take strict measures to “provide a conducive environment of safety and protection to the complainant against retaliation and victimisation as a consequence of making a complaint of sexual harassment.”

Who should be members of the IC?

The IC is to be led by a senior level woman employee as Presiding Officer (not below a Professor, in case of a University; not below an Associate Professor or Reader in case of a college). The other members of the IC would include:

• Two faculty members and two non-teaching employees, preferably committed to the cause of women or who have experience in social work or have legal knowledge, nominated by the University/ College authorities;
• Three students, if the matter involves students, who shall be enrolled at the undergraduate, masters and research scholar levels respectively, elected by transparent democratic procedure;
• One External member

Further, like the 2013 Act, at least half of the IC members must be women.

Persons in senior administrative positions of HEIs, including Vice-Chancellor, Pro Vice-Chancellor, Rector, Registrar, Deans, Heads of Departments etc. shall not be IC members to ensure autonomy in the IC’s functioning.

Regulation 4(3) of University Grants Commission Prevention, Prohibition and Redressal of Sexual Harassment of women employees and students in higher educational institutions regulations, 2015

Notably, as per Regulation 4 (3), persons in senior administrative positions of HEIs shall not be IC members to ensure autonomy in the IC’s functioning.

Responsibilities of the IC

The responsibilities of the IC includes:

• assisting the complainant in filing a police complaint (if the complainant chooses to do so),
• ensuring just and fair conciliation without undermining the complainant’s rights and minimizing the need for purely punitive approaches that lead to resentment, alienation or violence,
• protecting the safety of the complainant, ensuring confidentiality of the complainant’s identity,
• relaxing attendance requirement or allowing transfer (of the complainant) to another department or supervisor, as required, during the pendency of the complaint, or even transferring the offender,
• ensuring victims or witnesses are not victimised or discriminated against,
• ensuring the prohibition of any retaliation or adverse action against “covered individuals”, i.e. those individuals who have engaged in protected activity such as filing a sexual harassment charge, or who are closely associated with such individuals.

Protection not confined to women

Regulation 3, which deals with the responsibilities of HEIs, calls on such institutions to act decisively against all gender-based violence against employees and students of all sexes. This provision is wider than the provisions of the 2013 Act, which narrows its focus primarily on the protection of women against sexual harassment.

Regulation 3, meanwhile, also calls on the HIEs to recognise “that primarily women employees and students and some male students and students of the third gender are vulnerable to many forms of sexual harassment and humiliation and exploitation.” Taking it one step further, the HEI is also urged to be sensitive to the fact that certain categories of persons may be more vulnerable on account of their sexual orientation, caste, class, on account of being differently abled, etc.

The Regulations explicitly note the responsibilities of the HEIs and the supportive measures to be extended by them. These supportive measures include:

• Adequate lighting;
• Well-trained security staff, who should receive gender sensitisation training. There should be a good proportion of women security staff;
• Reliable public transport;
• Women’s hostels in residential HEIs;
• Discriminatory rules should not be imposed on women in hostels under the guise of their being safety rules;
• Adequate health facilities, gender sensitive doctors, nurses, as well as gynaecologists for women;
• Hostel wardens, provosts, principals, vice-chancellors, legal officers, etc. must be held accountable for the actions they take.

How to file a sexual harassment complaint?

The process of filing complaints under the 2015 Regulations is largely drawn from the 2013 Act.

An aggrieved party can also opt for conciliation in order to settle the matter but no monetary settlement should be made as a basis of conciliation.

The identities of the aggrieved party, the witness and the offender shall not be made public, especially during the inquiry.
The Regulations also empower the HEI to undertake interim measures in complainant’s interest including:

• Transferring the complainant or the respondent to minimise interaction;
• Granting the complainant leave with protection and benefits up to three months;
• Restraining the respondent from evaluating the work of the complainant;
• Warning respondents to keep a distance from the complainant or even barring their entry into campus;
• Protecting the complainant against retaliation and victimisation.

The punishment for offenders includes withholding student privileges, rustication and expulsion, in the case of a student. For employees, the punishment would depend on service rules. The aggrieved person is also entitled to get compensation, if the IC so recommends.

Consequences of non-compliance for HEIs

A university or a college flouting the 2015 regulations risks withdrawal of grants, removal of its name from the UGC’s list and disqualification from receiving UGC assistance.

The UGC is further empowered to inform the general public (including potential students and employees) that the errant institution does not provide for a zero tolerance policy against sexual harassment.

Further, the UGC can also recommend that the State government withdraw the institution’s “university status”, if it is a university established under a State Act. However, no action can be taken by the UGC unless the institution is given an opportunity to explain its position.

PoSH compliance is not only for corporations

Evidently, PoSH compliance is not limited to a corporate workplace and remains a relevant concern for educational institutions as well.

The gravity of the issue should not be taken lightly, not only from the standpoint of the penal consequences that would follow in law but also in terms of ensuring a safe learning environment for students and other stakeholders at University campuses.

However, how far educational institutions comply with these norms in letter and spirit remains to be seen.