The reality of life on the shelf: exploitation as a structural problem

‘While the Hema Commission report addresses several issues faced by women in vernacular films, the problems transcend these boundaries’ | Photo credit: Getty Images

The Justice K. Hema Committee report, released by the Kerala government on August 19, 2024, has sparked a debate on the issues faced by women in the Malayalam film industry. The committee, which was formed in 2017, had submitted its report to the government in 2019. A redacted version of the report has now been made public. While it addresses the issues faced by women in vernacular films, the issues transcend these boundaries.

Broadly speaking, the report deals with two categories of issues. The first is the sexual exploitation and assault of women in cinema. The report states that women are often forced to trade sexual favours for opportunities and that women who refuse to ‘cooperate’ are sidelined by the industry at the behest of powerful men. The second is discriminatory practices against women and lack of even basic amenities. The report has opened up a long-awaited discussion on the lack of gender equality for women in the workplace. The brutal incident of rape and murder of a doctor in a Kolkata hospital also underscores the need for this conversation.

Culture of attack

The concerns raised in the Hema Committee report are disturbing, but not surprising. They are an extension of the problems women face in a conservative, patriarchal society like ours. Women are burdened by stereotypes and expectations about how they should behave. Therefore, it is problematic to view cases of sexual abuse of women in isolation. From this perspective, rape should not only be seen as a crime committed by a bad man, but also as a culmination of social practices that treat women’s consent as practically irrelevant. A rigidly individualistic approach to sexual abuse often distracts from this reality. From what to wear to which friends to have, individual choice is too often stolen from women. Rape is the most egregious manifestation of this approach: not seeing women as persons with autonomy and dignity. The normalization of objectification and gender stereotypes plays a central role in perpetuating the sexual abuse of women. According to the National Crime Records Bureau, 31,516 cases of rape will be reported in India in 2022 — one reported every 16 minutes. Workplace bullying is another reflection of this culture of sexual assault.

In the context of workplace assault, a petition seeking to enforce the rights of working women against sexual harassment was filed in Vishaka and Ors v State Of Rajasthan and Ors (1997). The Supreme Court of India prescribed a set of guidelines — a unique type of judicial legislation — to prevent harassment in the workplace. These included duties on the employer to prevent assault, as well as the creation of a grievance mechanism for aggrieved individuals.

It took over 16 years for the legislature to enact the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. A striking feature of the legislation is that it provides for the constitution of an Internal Complaints Committee (ICC) which can be approached by the aggrieved woman. The definition of ‘workplace’ in Section 2(o) of the Act is broad enough to include the film industry.

However, the Justice Hema Committee report has indicated that the ICC is not suitable for women in the film industry. It is argued that there is a chance that the abuser or the employer can influence ICC members. The committee therefore calls for an independent forum to be set up by the government to address the issues faced by women in the film industry.

However, this is a problem that every ICC faces and is not unique to the industry. While additional accountability safeguards may help alleviate the problem, the suggestion that the complaints mechanism formulated by a parliamentary legislation should be ignored altogether seems unwise.

Registration of crimes

Many have questioned the absence of a record of crimes in the commission report. They wonder why no investigation has been launched and why the accused cannot be brought to justice. The concern is justified. The report is an edited version that omits the names of survivors and perpetrators. The masking of the names of survivors is in recognition of the principle of anonymity of survivors, a generally accepted norm in criminal jurisprudence on sexual abuse. Anonymity is also preserved during investigation and prosecution.

In Nipun Saxena vs Union Of India (2018), the Supreme Court explained the significance of penalizing disclosure of the name and identity of survivors of sexual offences as prescribed under Section 228A of the Indian Penal Code, which is now reiterated in Sections 72 and 73 of the Bharatiya Nyaya Sanhita. Since the provisions are substantially the same, the ratio of the judgment in Nipun Saxena would determine the field. In the judgment, the Court said that the objective of the provision is to protect survivors from hostile discrimination and future harassment. Since this is the law of the land, the Kerala government must play a proactive role in the matter after sensitizing itself on the issue.

The right to privacy is an integral part of the right to life under Article 21 of the Constitution (Puttaswamy, 2017). The statements were made by several victims in the belief that this anonymity will be maintained. The right to decide whether a criminal case should be pursued lies with the victim. It is true that in our criminal justice system, the state initiates the prosecution against the accused, argues and conducts the case on behalf of the victim. However, even if the state investigates the crime, it becomes quite difficult to prove a crime without the cooperation of the victim.

It is important to acknowledge why survivors are often reluctant to file complaints in cases of sexual abuse. A society that looks at survivors of sexual abuse with misplaced empathy and disgust, rather than support and trust, probably has no moral standing to demand that the survivor necessarily file the complaint. We all share a collective responsibility for creating this status quo. Moreover, trials in sexual abuse cases take years to complete, which is attributable to the high level of legal pendency in our country. Keep in mind that the Hema committee was formed after the accusation of sexual abuse against a leading Malayalam film actor, the trial of which is still ongoing. Survivors also fear possible reprisals from the abuser and others, in terms of refusal to give them work and being branded as ‘trouble makers’.

Structural reforms

The 2017 allegations against Harvey Weinstein, the American film producer, eventually led to the #MeToo movement that gained global attention. The findings in the Hema Commission report should pave the way for structural reforms, with the government effectively taking the lead. The challenges faced by women in the industry, especially those in the lower echelons as opposed to the leading actresses, deserve recognition. From lack of adequate sanitation to hostile bias, each issue requires a comprehensive study and solution. More importantly, the report will accelerate the fight of Indian women against discrimination at the workplace by providing them with a heightened awareness.

Kaleeswaram Raj is an Advocate at the Supreme Court of India. Thulasi K. Raj is an Advocate at the Supreme Court of India