Men should be educated about the nuances of their acts and the consequent impact that they have on a victim. Despite changes that are required in law, the movement should first ignite social change

The common incidents that take place in almost every woman’s life, incidents that were hushed behind closed doors, have finally found a platform to come out in the open, in the form of the #MeToo movement. The campaign has caused a ripple effect in India, which looks promising enough to bring about a change for good.

However, there is an underlying fear because of which certain women haven’t come out with their ordeals — the fear of not being believed, the fear of loss of repute and more importantly, loss of their jobs and the associated trauma.

Normally, the legal consequences of bringing out the misdeeds of someone can result in a nullity  if there is no strong evidence to substantiate the claim. In fact, you can end up being the one on the wrong side of the law, as a defamation suit can be filed against you. The same had happened with writer-producer, Vinta Nanda, as a suit for defamation had been filed by actor Alok Nath as a reply to her harrowing contribution to the #MeToo movement.

The whole scenario leads us to essentially question the legal framework within which the #MeToo movement stands. Does it provide enough protection to the victims?

The answer is a big “no”, as the accused can only be convicted on the production of substantial evidence against him, which is very difficult to obtain, especially in a sexual harassment case.

Now, if the accused cannot be convicted for his actions then what exactly can be changed so as to create the perfect balance wherein the victims of such harassment, or worse, can be protected, and at the same time, the framed people can enjoy their fair bit of protection as well?

From the experience drawn from the US, where the #MeToo movement had seen its inception, many valuable lessons can be learned on how to reform the law. The first change that the law should provide for is an opt out option in non-disclosure agreements (NDAs).

It was observed in the United States that a big impediment in the reporting of sexual misbehaviour was the NDA. In many cases, the NDAs were so much customised to such effect that a victim was compensated with a financial settlement while gagging him/her from speaking about the abuse.

Another big problem with the law is that it provides a time frame within which the complaint has to be lodged. Section 9(1) of the Sexual Harassment of Women at Workplace Act, 2013 provides for three months from the date of the incident or the date of the last incident in case of a series of events, for reporting of the complaint. This can be increased to another three months by the internal or local committee adjudicating the claim.

Now, the narrative — that such a limitation should be placed so as to balance the interest of justice between the complainant and the accused — falls short on the count that this is a protective legislation. Such legislations are created because the subjects that they deem to protect are vulnerable and, therefore, need an affirmative protection of the State.

With limitations like that of time period, the Sexual Harassment Act tends to defeat the purpose for which it was enacted as it has to protect each and every individual who faces harassment without any prejudice to the time when she finally gathers the courage to speak up in the patriarchal system.

Further, in the court of law, if such a matter comes for adjudication, it should be reasonably expected from the court that they do not expect an exact testimony from the victim, in excruciating detail. This is to say that the courts usually expect the victim to recall their experience in a linear fashion by requiring them to provide specific names, dates and facts of the assault. In this manner, the legal system wants the victims to remember and pen down the horrendous experience which they usually try hard to forget. While the accuracy of the events does not destroy their case, it provides an easy way for the defence attorney to do the same by creating a reasonable doubt of the innocence of the accused.

Now comes the question which has created immense fear in the minds of many misogynists since the #MeToo movement has begun: How will the falsely accused men be protected? Well, these people will be happy to know that if a malicious or false complaint or a complaint made with forged or misleading document is made, then under Section 14 of the Sexual Harassment Act, action can be taken against the complainant. However, it also provides that the mere inability to substantiate a complaint or provide adequate proof need not attract action against the complainant, thus protecting the victim as well.

Despite the changes that are required in the legal sphere, it can be safely said that the #MeToo movement should first ignite social change, which should then take the form of legal change.

Men should be educated about the nuances of their acts (which might seem casual or commonplace to them but is actually harassment) and the consequent impact that it has on the victim. #MeToo is being termed as a clarion call to something bigger, and with a Constitution which is feminist, hopes are high that India will finally wake up to a better future.

(Raghav Pandey is an Assistant Professor of Law at Maharashtra National Law University, Mumbai and Neelabh Bist is a Fourth Year student of Law at Maharashtra National Law University, Mumbai)