The Kerala High Court Today (Sept 10) called for a feminist perspective to be factored in while drafting laws to deal with sexual harassment at workplace. The Bench made the observation while hearing matters concerning the Justice K Hema committee report on the working conditions of women in the film industry.
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KOCHI: The Kerala High Court emphasized the importance of incorporating a feminist perspective when drafting laws to address sexual harassment in the workplace.
This statement came from a Bench of Justices AK Jayasankaran Nambiar and CS Sudha during a hearing on issues arising from the Justice K Hema committee report, which examines the working conditions of women in the film industry.
The Court proposed that a new law might be necessary to regulate the working conditions within the film industry. It stressed that such a law should be both feminist and intersectional, ensuring 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 remarked.
The Justices also highlighted the need to address multiple disadvantages faced by women, which go beyond mere 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,”
-they said.
These concerns will be reviewed further when the Court reconvenes on October 3. The Court also urged all parties involved to collaboratively draft legislation from a feminist perspective, underscoring its significance in public interest matters.
“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 advised the State’s counsel.
During the proceedings, Advocate General Gopalakrishna Kurup, representing the State, pointed out the difficulties in regulating unstructured workplaces like the film industry.
He acknowledged that the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (PoSH Act) applies but noted that intervention from the Court was necessary before Internal Complaints Committees (ICCs) could be established 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 explained.
The Bench observed that even the PoSH Act came into existence only after a significant delay following the Vishakha case, which dealt with workplace sexual harassment.
“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 asserted.
The Court further suggested that a new law might be required to regulate workplaces in the film industry and proposed including 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, established by the Kerala government in 2017 following a petition by the ‘Women in Cinema Collective,’ was tasked with examining the challenges faced by women in the Malayalam film industry.
The committee’s report, released in a redacted form on August 19, revealed widespread sexual harassment and casting couch practices within the industry. Notably, several prominent film industry figures have been named as alleged perpetrators of sexual crimes, including rape.
During the hearing, the Court also expressed concern over the State’s failure to act on these allegations, despite having access to the report since 2019.
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