This article is written by Siddhant Saroj, a Fifth-year law student, BBA LLB (Hons) at National Law University Odisha.
Introduction
Sexual harassment has been prevalent across genders throughout history. It is recognised as a heinous crime because it harms both the physical and mental health of the victim, causing lifelong trauma. Victims of sexual harassment often require numerous hospital visits and therapy sessions to restore both their physical and mental health. But what if the hospitals are not safe either? Sexual harassment in hospitals in India is a significant and pervasive issue affecting both patients and healthcare workers, particularly female nurses and female patients. This article explores two critical issues, firstly, the impact of sexual harassment before specific laws were enacted and whether this contributes to victims’ fear of reporting. Secondly, the current gaps in sexual harassment laws which do not protect all genders. By addressing these issues, the article also highlights the need for comprehensive norms.
Behind Closed Doors: Harrowing Cases From Indian Hospitals
The historic case of Aruna Ramchandra Shanbaug v. Union of India & Ors.[1] involves Aruna, a staff nurse who was assaulted by a ward boy employed at the same hospital in 1973. It was reported that he choked and strangled her using a dog chain to immobilize her during an attempted rape. Upon discovering that Ms. Aruna was menstruating, he also sodomized her, rendering her unconscious. In addition to these acts, he robbed her before fleeing the scene. He was eventually convicted of robbery and attempted murder. However, due to the absence of laws addressing sexual assault at that time, he was not charged for sexual harassment. He served a seven-year prison sentence and was subsequently released.
Despite the enactment of laws addressing sexual harassment in today’s world, significant challenges persist. Hospitals are highly esteemed and trusted institutions, particularly in India, where doctors and healthcare facilities are held in reverence. Every day, prayers echo inside and outside hospitals, yet they have often failed to live up to the faith placed in them by people. A time when this was witnessed all around the world was during the COVID-19 pandemic. Throughout this period of distress, the darker aspects of hospitals went unnoticed. Women have reported acts of harassment by hospital staff while their family members were receiving treatment, highlighting the vulnerability and power imbalances inherent in such institutions. One such incident, when a woman in Bihar was molested by a hospital attendant while seeking help for her Covid-infected husband.[2]
“I had requested the attendant to allow me to stay with my husband at the hospital, and he promised he would do so. And, while I was talking to my husband, the attendant snatched my dupatta and put his hand on my waist. I kept mum as both my husband and my mother were admitted there.”
It is difficult to imagine the vulnerability the woman faced as she was being harassed. At first, the woman was afraid of filing a report against the harassment as she thought it would affect the treatment of her husband. Rather, the woman “requested the accused” to attend to her husband.[3] The fear could be felt through her words but was it really correct to stay “mum”?
Nearly two-thirds of victims are believed to have never reported experiencing such assault.[4] Victims may fear reporting the incident for a variety of reasons, including fear of being defamed, ignorance of reporting processes, avoiding traumatic recollections, confidentiality breaches during prolonged court proceedings and interrogations, fear of revenge from perpetrators, and poor financial conditions. Over the years, awareness has grown regarding the mandatory reporting of sexual harassment. It’s important to note that obtaining the victims’ consent is crucial when reporting the assault, respecting their right to privacy under Article 21. Mandatory reporting is essential as it breaks the cycle of silence, prevents the normalization of harassment, and initiates accountability for potential perpetrators. However, are Indian laws robust enough to support mandatory reporting, or do victims fear reporting offenses due to perceived difficulties in getting justice?
Are Gaps In Existing Laws Becoming Barriers To Justice?
- General Legislation
India has never backed down when it came to fighting against perpetrators. Through the Criminal Law Amendment Act, 2013, Section 354A was inserted which defines “sexual harassment” as an offence. Section 53(5) of the Code of Criminal Procedure states that a female doctor shall perform or oversee the examination of a female victim. In the landmark judgment of State of Karnataka v. Manjanna[5], the Supreme Court recognised that “the victim’s need for a medical examination constituted a ‘medicolegal emergency’. Secondly, it was the right of the victim to approach medical services first before legally registering a complaint in a police station”.
The court in Delhi Commission of Women v. Delhi Police[6], pronounced that “a SAFE Kit (Sexual Assault Forensic Evidence collection kit) should be used by all medical personnel for gathering and preserving physical evidence following sexual assault”. However, there was still no legislation specifically addressing sexual harassment until 2013.
- Specific Legislation
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“the Act”) is key legislation that applies when sexual assault takes place in healthcare facilities. Hospitals are required to establish an ‘Internal Complaints Committee’ under Section 4 of the Act, which shall provide immediate aid in events of sexual harassment. However, many hospitals fail to effectively implement these measures, leading to inadequate support and justice for the victims. But why do hospitals fail to do so? Is it due to a lack of awareness about sexual harassment[7] or insufficient funding to support these measures? Irrespective of the reason, hospitals should be held liable for not taking effective measures to prevent sexual harassment in their facilities and help the victims get access to justice. In the case Global Health Pvt. Ltd. v. Local Complaints Committee, District Indore and Ors.[8],Madhya Pradesh High Courtfined Medanta Hospital, Indore, fifty thousand rupees for failing to establish an ICC, as required by Section 4(1) of the Act. Additionally, it ordered the hospital to compensate the complainant with twenty-five lakh rupees.[9]
- Identifying the Gap: The gender-neutral issue
Merely criticizing hospitals is not the sole solution; meanwhile, scrutiny of Indian laws remains a constant concern. It is an undeniable fact that sexual harassment can take place against any sex: male or female. However, the Indian laws only extend their protection from sexual harassment in the workplace to women, which is evident from the preamble of the Act. Nilesh Tribhuvann stated that “there are no gender-neutral laws focusing on sexual harassment against men in the workplace”.[10]
One such incident came to light when a male patient who was sexually abused by a doctor while receiving treatment in the critical care unit of a private hospital in Mumbai.[11] The same issue affects male victims too; many men refrain from speaking out because they feel powerless. Instead, they often choose to ignore or adapt to the situation. Article 39 mandates equal compensation for equal labour and means of living for both men and women. However, equality seems absent in addressing sexual harassment against men in the workplace, highlighting disparities in legal protection.
Combating Sexual Harassment In Indian Hospital
- Changes that can be brought in the Legislation
The laws should be amended with several considerations in mind, such as expanding the scope from “aggrieved women” under the Act to “aggrieved persons”, thereby addressing gender-neutral concerns comprehensively. Additionally, confidentiality should be maintained during court hearings which will reinforce the faith victims place in the justice system. Bombay High Court in the case P v. A & Ors.[12], laid down guidelines on how decisions should be recorded and pronounced by the courts. Lastly, there should be prompt appointments of service providers to offer free legal assistance, psychological counselling, and medical care to victims unable to pursue justice due to financial constraints.
- Changes that can be brought in the hospitals’ policies
Hospitals must formulate robust policies in compliance with the Act to prevent sexual harassment, targeting both patients and healthcare workers regardless of their genders. A zero-tolerance policy should be enforced, ensuring prompt and decisive action against perpetrators. Increasing the use of virtual consultation and telemedicine reduces the need for physical interactions, especially in cases where the patient is alone and vulnerable.
- Changes that can be brought into the minds of the public
The public should be informed about sexual harassment, reporting procedures, and their rights through targeted campaigns. Collaborative efforts among NGOs, advocacy groups, and gender equality organizations are crucial for conducting awareness drives, training programs, and advocating for policy changes.
Conclusion
Sexual harassment is a mounting concern in the healthcare sector. Many cases go unreported, and those that are reported often leave victims anxious about receiving justice. Addressing this issue requires collective efforts and commitment from healthcare providers, staff, and patients to create safer hospital environments.
This article has been written by Siddhant Saroj
[1] (2011) 4 SCR 1057
[2] Covid victim’s wife alleges sexual harassment, negligence at Bihar hospitals, Indian Express, May 11, 2021, https://indianexpress.com/article/coronavirus/covid-victims-wife-alleges-sexual-harassment-negligence-at-bihar-hospitals-flags-oxygen-scam-7310965/
[3] The Rising Cases Of Sexual Harassment Of COVID-19 Victims In Hospital Premises, Feminism in India (June 15, 2021), https://feminisminindia.com/2021/06/15/hospital-sexual-harassment-covid-19/
[4] Joanne Belknap, Rape: Too Hard to Report and Too Easy to Discredit Victims, 16 Violence Against Women 1335, (2010), https://doi.org/10.1177/1077801210387749.
[5] 2000 (6) SCC 188
[6] 2009 SCC OnLine Del 1057
[7] Vishal Kedia, Sexual Harassment: A Growing Concern in Indian Healthcare – Express Healthcare, Express Healthcare (July 10, 2015), https://www.expresshealthcare.in/life-healthcare/sexual-harassment-a-growing-concern-in-indian-healthcare/98552/
[8] 2019 SCC OnLine MP 5453
[9] Akshita Saxena, Sexual Harassment At Workplace: Hospital Fined 25 Lakh For Not Having ICC, Supreme Court News, Latest India Legal News, Supreme Court Updates, High Courts Updates, Judgments, Law Firms News, Law School News, Latest Legal News (Sept. 18, 2019), https://www.livelaw.in/news-updates/sexual-harassment-at-workplace-148214?infinitescroll=1.
[10] Avanthika P, Is it high time the POSH Act should address men’s concerns too? – ETHRWorld, ETHRWorld.com (Mar. 2024), https://hr.economictimes.indiatimes.com/news/workplace-4-0/is-it-high-time-the-posh-act-should-address-mens-concerns-too/108189260 – :~:text=There is no specific gender,they don’t feel empowered.
[11] Preventing Sexual Harassment in Healthcare System – MUDS, MUDS (Aug. 2, 2022), https://muds.co.in/preventing-sexual-harassment-in-healthcare-system/
[12] Suit no. 142 of 2021
* Fifth year law student, BBA LLB (Hons) at National Law University Odisha.