In February 2017, the Kerala government discovered about the heinous case of sexual assault of a prominent Malayalam actress who was kidnapped, abused and filmed in a moving car which was allegedly orchestrated by another actor of the said industry. The incident led to an emotional outburst amongst the women in the Malayalam film industry, who formed the Women in Cinema Collective (WCC). The WCC, the first of its kind, is a collective of 18 women from the Malayalam film industry who stood by the survivor and approached the Chief Minister of Kerala to draw the governments attention on the gender-discriminatory values and unsafe practices that are rife in the Malayalam film industry.

About Justice Hema Committee

Based on the written appeal submitted by WCC to the Chief Minister, the Kerala government constituted the Justice Hema Committee in 2019, with the objective of analyzing the issues faced by women in the Malayalam film industry and to provide recommendations and best practices that must be adopted to mitigate conditions that are leading towards the creation of a toxic work environment.

The Justice Hema Committee comprises of three distinguished members namely, Justice K. Hema (Retd. Kerala High Court Judge) who is the chairperson of the committee, Smt. T. Sarada (veteran actor) and Smt. K.B. Valsalakumari (Retd. IAS officer).

Findings Of The Hema Committee Report

The Justice Hema Committee observed the following issues that women in the Malayalam film industry were facing:

1. Sexual Atrocities: the women in the industry were facing sexual abuse, cyber bullying, online and offline harassment and were being subjected to threats of rape and exploitation through casting couch, (where sexual favors are demanded in exchange for film roles). Another common form of abuse were the assaults faced by women in the hands of those, under the influence of drugs and alcohol on set.

• Gender Discrimination: the industry which has always been a male dominating society has often exhibited discrimination against women. Moreover, discrimination against women in terms of pay scale and mistreatment on film sets has been accepted as normal.

• Lack of basic facilities: lack of basic amenities like separate washrooms and changing room for women in the industry display the lack of respect, safety and dignity with which the female artists in the industry were working.

Applicability Of The Sexual Harassment Of Women At Workplace (Prevention, Prohibition & Redressal) Act, 2013 To Address Sexual Harassment In The Film Industry

To understand the applicability of the Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act, 2013 (POSH Act) to the above finding, we reflected on the following questions:

1. Whether the acts of casting couch or demand of sexual favors in return for film roles results in “Sexual Harassment” under the POSH Act.
2. Whether the POSH Act is applicable to film shoot units which constitute atypical workplace setup.
3. Whether cine-workers can be considered as “Employees” under the POSH Act.
4. And if the POSH Act is applicable to cine-workers, then who will be considered as an “Employer”.

Scope of “Sexual Harassment” definition under the POSH Act

According to Section 2(n) of the POSH Act, 2013, sexual harassment includes any unwelcome act or behavior which may include physical advances, demand or request for sexual favors, showing pornography or any other unwelcome verbal or non-verbal conduct of sexual nature. Similarly, Section 3 of the POSH Act, 2013 further states the circumstances in relation to or connected with any act of sexual harassment that may amount to sexual harassment such as:

• Implied or explicit promise of preferential treatment in her employment
• Implied or explicit threat of detrimental treatment in her employment
• Threat about her present or future employment status,
• Interference with work, creating intimidating or hostile work environment
• Humiliating treatment that is likely to affect her health and safety.  

In light of the above statutory provision, the acts of demanding sexual favors from the female cine-worker of the film industry in return for a film role or instances of casting couch are classic examples of quid pro quo situation, which constitutes sexual harassment under the POSH Act.

Extent of “Workplace” definition under the POSH Act

Interpretation of the High Court’s opinion on the definition of “Workplace” in Saurabh Kumar Mallick v. Comptroller and Auditor General of India,  helps us in understanding that the drafters of the POSH legislation have kept the ambit of the term very wide to ensure that any aggrieved woman who is subjected to any form of sexual harassment is able to file a complaint under the POSH Act by establishing that the place where the alleged act was committed has proximity or is an extension of the work place.

It is in view of this interpretation, we draw a conclusion that the acts of sexual harassment happening on film sets or in places where the parties hold a working relation with each other, shall be considered as an extension of atypical workplace setup.  

Interpreting the meaning of “Employee” under the POSH Act

As observed by the High Court of Bombay in Jaya Kodate v. Rashtrasant Tukdoji Maharaj Nagpur University, Amravati Road, Nagpur through its Registrar, Section 2(f) of the POSH Act states that an employee is any person who has been employed at a workplace for any work on regular, temporary, ad hoc or daily wages with or without the knowledge of the principal employer irrespective of whether they are drawing a salary or not and whether the terms of employment are express or implied.

The definition further provides that an employee may be a person working in the capacity as a contract worker, probationer, trainee, apprentice or called by any other such name. This means that cine-workers, which includes actors, dancers and musicians who are involved in films or ad shoots are hired on permanent, temporary and daily wage basis will fall within the category of contractual workers and hence have the right to file complaints of sexual harassment if any under the POSH Act.

Understanding the ambit of who can be an “Employer” under the POSH Act

From the aforementioned statutory provisions, it is safe to draw that the POSH Act, 2013 is also applicable to the film industry. Thus, now the question to be determined is regarding, who can be called as an “Employer” in a film set, as under the POSH Act, it is a mandatory duty for every employer to provide a safe working environment for their employees including people coming into contact with their workplace.

A bare reading of Section 2(g) of the POSH Act, 2013, every person responsible for the management, supervision and control of the workplace shall be an employer. Based on the definition and in light of Section 2(h) of the Cine- workers and Cinema Theatre Workers (Regulation of Employment) Act, 1981 a “Producer” in relation to a feature film shall be considered as an employer as a producer is a person by whom the arrangements necessary for the making of such film (including the raising of finances and engaging cine- workers for the making of such film) are undertaken. Thus, we may conclude that it is the duty of every producer of a feature film to ensure safety of the cine-workers and to provide assistance to every aggrieved women cine-worker if she chooses to file a complaint under the POSH law or any other law for the time being in force.

Conclusion

On the basis of the above statutory provisions and judicial pronouncements, it is clear that the special bench of the Kerala High Court, comprising of Justice A.K Jayasankaran Nambiar and Justice C.S. Sudha should have, apart from creating a special investigation team (SIT) for taking actions based on the Justice Hema Committee Report, instructed the Malayalam film industry to constitute an Internal Committee as required under the POSH Act to address the complaints of sexual harassment.

– Written by Adv. Vasantha and Reviewed by Deeksha Rai