The legal challenges of reporting and investigating sexual harassment in Indian sport

Working in Indian sport places women and junior athletes at a higher risk of sexual harassment and assault. The tradition of unquestioning submission to coaching methods, the need for long periods of training away from the public eye, and a system of governance that does not encourage independent judgment are all factors responsible for the risk.

Laws that protect women and children at work need to account for such risks. National sports federations and other governing bodies for sports in India, including those administering sports at state and district levels, must establish internal complaints committees to investigate complaints of sexual harassment.

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, which is India’s workplace sexual harassment law and is designed to protect women at different types of workplaces and leaves no doubt about this obligation.

The responsibilities that this law places on employers, including the most important one of establishing complaints committees, arise not from any formal or informal relationships of employment, but purely from their control of places where work happens.

Sporting spaces are workplaces

The term “workplace” is defined broadly and includes “any sports institute, stadium, sports complex or competition or games venue, whether residential or not used for training, sports or other activities relating thereto”, and “any place visited by the employee arising out of or during the course of employment including transportation provided by the employer for undertaking such a journey”.

“Workplace” is the law’s pivotal term and the terms “employer” and “employee” are defined in relation to it. The “employer”, who (outside of government workplaces) is the person responsible for the management, supervision, and control of that space, must establish an internal complaints committee.

India’s federations and sports governing bodies at all levels are employers in relation to sporting facilities, competition venues, sports hostels, and games villages, to name just a few workspaces in sport. There is no doubt that the law requires them to establish internal complaints committees.

These committees can investigate complaints of sexual harassment against “employees”, who are the people employed at that space for any work, including contractors, trainees, and volunteers. So regardless of whether they are employed by the federation or governing body, a committee can investigate complaints against athletes, coaches, or administrators, if they are employed at that workplace.

So just like at any other workplace in India, any “aggrieved woman” can, regardless of whether she works there, file a complaint of sexual harassment to the complaints committee, which the governing body that manages or controls the sporting workspace is obliged to establish.

Can complaints committees at sporting spaces be independent?

The ability to file a complaint, however, is just the first part of securing justice against sexual harassment at the workplace. The quality of the investigation is another important factor, and here we must acknowledge that sporting spaces are not like other places of work.

Unlike places of work that are managed and controlled either through ownership or under contracts of employment, the governance of sporting spaces is part of the network of inter-dependence that governs sports.

Each tier of governance depends, for its very legitimacy, on the bodies governing the sport at the tiers above and below it. The BCCI is the governing body for cricket in India because it is recognised as such by the international body and by the state associations in India.

Each governing body also participates in the affairs of the body governing at the tier above it and supervises the bodies governing at the tier below. The Gujarat Cricket Association, as a member of the BCCI, has a right to vote in the decisions made at the national level, along with supervising bodies administering cricket in Gujarat at the district level.

This is a system where people and institutions govern and participate in the affairs of the very entities they depend on for their authority to govern and participate. It is not difficult to see how independent decision-making may not flourish.

The workplace sexual harassment law requires that internal complaints committees should contain at least three employees. It is difficult enough for employees at an ordinary workplace to exercise independent judgment about a complaint filed against a colleague, especially a senior one. In sporting spaces however, such a colleague may also be a node in the network of mutual dependence that holds up the entire edifice of governance.

Sports governing bodies should recognise this systemic flaw and take steps to encourage independent decision-making in their complaints committees. For example, a national-level governing body like the Delhi State Athletics Federation could include in its complaints committees a minimum number of members from outside that governance system for athletics in the state.

Sexual crimes in relationships of authority or trust

Given these flaws that may inhibit independent investigations into sexual harassment by the complaints committees constituted for sporting spaces, we can turn our attention to the criminal law, which often treats men in positions of power over women as a risk factor.

Relationships of unequal power and relationships of trust aggravate some sexual offences and lead to increased punishments. This is significant in Indian sporting spaces where sports coaches and administrators are in positions of authority over or have fiduciary relationships – meaning relationships of trust – with female athletes.

The punishment for rape is enhanced where the accused is in “a position of trust or authority towards the woman” or “in a position of control or dominance over a woman”. Under India’s child sexual abuse law, the offences of “sexual assault” and “penetrative sexual assault” are aggravated when the accused is “in a position of trust or authority” in relation to the child victim.

Even sexual intercourse that does not amount to rape (including consensual sex) is a punishable offence in circumstances where the accused is in a position of authority or in a fiduciary relationship with a woman and abuses that position or relationship to induce or seduce her to have sexual intercourse with him.

However, some sexual offences that do not involve intercourse, are not automatically more serious if the accused is a coach or administrator and the victim is an athlete. The existence of a relationship of authority or trust does not necessarily aggravate the offences of “assault or criminal force to outrage a woman’s modesty”, “stalking”, “voyeurism”, “assault or use of criminal force to disrobe a woman”, and “sexual harassment”.

The criminal law must be amended to treat with greater seriousness all sexual offences that occur in the context of a coach-athlete relationship, especially because the workplace sexual harassment law may not be able to deliver good investigations in sporting spaces.

Aju John is the head of content at myLaw.