Sexual Harassment At Workplace: with special reference to Vishakha Case
By: Anushka Sharma* |
“You can tell the condition of a nation by looking at the status of its women.”
Gone are those days of rigid patriarchy where women were exposed to household work and not encouraged to earn a livelihood for their family. In the times of gender equality, even women are trying hard to achieve a successful career and pursue their dreams. Women these days not only have to stand against gender discrimination and bias but also against the crimes that they are subjected to daily. A working woman spends 1/3rd of her time in the place she works thus it becomes necessary that these places provide a friendly and safe environment. Offences like sexual harassment not only outrage the modesty of the women but also shatters her confidence and mental peace.
Sexual harassment is an odious crime. In India, a female gets sexually harassed every 12 minutes. Sexual Harassment at workplace produces an unsafe milieu for women which encroaches their Fundamental Rights as preserved under Article 14, 15 & 21 of the Indian Constitution which provides for equality in status, opportunity and personal liberty. Sexual harassment not only hampers the physical aspect of a female but also damages her emotional and mental growth.
To check such practices at the working environment and outfit a progressively protected condition for women, the Ministry of Women and Child Workplace enacted the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (PoSH Act) which is drafted on the Vishakha Guidelines as laid down by the Apex Court in Vishakha & Others vs. State of Rajasthan and Convention on Elimination of all Forms of Discriminations Against Women (CEDAW).
“Sexual harassment at the workplace” in India was reckoned by the Supreme Court in the case of Vishakha vs. the State of Rajasthan. The class action was sought by certain activists and NGOs under the banner of ‘Vishakha’ by filing a writ petition on behalf of working women after the incidents of Bhawari Devi in the year 1992, the writ petition was filed on the basis of violation of Article 19(1)(g) along with Article 14, 15 and 21 of the Constitution, i.e. a violation of the right of a woman to pursue her profession freely. Instances of sexual harassment or exploitation results in the violation of the fundamental rights of `Gender Equality' and the `Right to Life and Liberty’.
FACTS OF THE CASE
In 1992, Bhanwari Devi, who was employed as a village-level social worker also known as-Saathin under the Women’s Development Project (WDP) run by the Government of Rajasthan and worked towards preventing child marriage.
In one particular case, Devi reported a family which had belonged to the Gujjar Community to the police because of the arranged marriage of one-year-old infant.
Therefore, to avenge it the family had rebelled against her and ostracise her from the community, around five men of the Gujjar community gang-raped her.
Despite preferential and the derogatory behavior shown by the police and also the doctors, she was insistent on to fight for Justice so she lodged a complaint against the accused. However, in the absence of sufficient evidence the Trial court had acquitted the accused citing ‘bizarre reasons’.
Various social organizations and women activists also raised their voices for Devi’s fight for Justice. Therefore, a Public Interest Litigation was filed by the women’s right activists for the need to protect women from sexual harassment at the workplace in the name of ‘Vishakha’.
The Apex Court acknowledged that there was a need of urgency in laying down guidelines to fill the vacuum of legislative inadequacy and provide a remedy for "sexual harassment" at the workplace which is an infringement of the fundamental right.
The Supreme Court also alluded to various provisions of the Constitution and Beijing Statement which visualised judicial intrusion necessary for the destruction of this social crime. Placing reliance on the International Convention of United Nations Convention on the Elimination of All Forms of Discrimination against Women (UNCEDAW) which was signed and ratified by the Indian government, the Vishakha Guidelines were formed and had the effect of law until the legislative framework was drawn under Art. 253 read with Entry 14 of the Seventh Schedule.
The norms laid down by the Supreme Court were mandatory for both government and private institutions and are as follows:
It shall be the obligation of the employer and other head of an institution to prevent the commission of acts of "sexual harassment" and provide the process for resolution, settlement or prosecution of such acts and take all the steps required.
For such purpose, the terminology "sexual harassment" includes such unwelcome sexually determined behaviour (whether directly or by implication) as
a) Physical contact and advances;
b) a demand or request for sexual favours;
c) sexually coloured remarks;
d) showing pornography;
e) any other unwelcome physical, verbal or non - verbal conduct of sexual nature.
All persons or employers in charge of the workplace (whether public or private) should take appropriate preventive steps.
Where such conduct of a person implies an offence under the IPC, 1860 or any other law, the employer shall take steps and make a complaint to the apt authority. The victims and witnesses shall not be victimized.
Where such conduct of a person amounts to misconduct in the employment as mentioned under the service rule, the employer shall initiate an apt disciplinary action according to the rules.
There such be the establishment of an appropriate complaint mechanism in the employer's company to redress the complaints of the victim. There should be an assurance of time-bound treatment by such mechanisms.
Such complaint mechanisms shall provide for a Complaints Committee, a special counsellor who shall maintain confidentiality. Such committee shall have women on board as members, such shall behalf in number at least. There shall be involvement of the third party like NGOs which have sufficient knowledge and awareness about "sexual harassment". The complaints which are redressed shall be cited in the annual report which will be submitted to the appropriate government authority concerned.
Employees should be allowed to raise problems and questions regarding "sexual harassment" at the appropriate forum and such questions shall be deliberated in the Employer-Employee meetings.
Female employees shall be made aware of their rights in this regard by notifying the guidelines.
Where “sexual harassment” is a result of the act or omission by any third party, the employer or person in charge shall be responsible for taking all the necessary steps and shall extend support to the victim.
The government shall consider taking all the necessary steps to ensure that all the guidelines mentioned herein are taken into account by private sector organisation.
Guidelines mentioned herein shall not prejudice any rights mentioned under the “Protection of Human Rights Act, 1993”.
The guidelines laid are a step towards establishing gender fairness for working women and thus the petition was disposed of.
After the Vishakha Judgement, several judgments have been passed that stresses on the requirement for a far-reaching law on "sexual harassment" at the workplace.
The Supreme Court restated the law that was dictated in the Vishakha Judgement and endorsed the firing of the superior officer of the Apparel Council. It also ruled that physical exchange was not necessary to amount the act as one of “sexual harassment”. It also highlighted that “sexual harassment” is a form of gender-based discrimination.
Hon’ble Supreme Court took cognizance on the letter submitted by Dr Medha and converted it into a writ petition. The Court checked the implementation of the Vishakha Guidelines across the nation by directing State Governments to file affidavits which tells about the steps the government is taking to implement the Vishakha Guidelines. Not being content with how the Guidelines were implemented, the Court asked the States to put in place a suitable mechanism which can ensure such implementation successfully. The Supreme Court affirmed that if there was non-compliance and non-adherence from the guidelines, it would be open to the aggrieved citizen to move to the High Courts of the respective states.
LEGISLATIVE CHANGES – POST-VISHAKHA CASE
The most essential development after the Vishakha judgement was the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013. This act was enacted in April 2013 Below is some important feature of the legislation.
This Act aimed to provide every woman with a safe and secure working environment free from all forms of harassment.
This Act covered both the organized and unorganized sectors in India and is applied to all government bodies, private and public sector organizations, non-governmental organizations, organizations carrying out commercial, vocational, educational, entertainment, industrial, financial activities, hospitals etc.
This Act defined ‘sexual harassment’ in line with the Supreme Court’s definition in the Vishakha Judgment and extended the meaning of the word sexual harassment to include ‘presence or occurrence of circumstances of implied or explicit promise of preferential treatment in employment, the threat of detrimental treatment in employment, about the present or future employment, interference with work or creating an intimidating or offensive or hostile work environment, or humiliating treatment likely to affect the lady employee’s health or safety could also amount to sexual harassment.
The Act also introduced the concept of ‘extended workplace’. Therefore, the Act defined 'workplace' to include any place visited by the employee arising out of or during the course of employment, including transportation provided by the employer to commute.
The Act provided for the establishment of Internal Complaints Committee (ICC) at every office or branches of the organization employing 10 or more employees, to provide a forum for filing complaints to facilitate fast redressal of the grievances about sexual harassment.
It also provided for the establishment of local complaints committee (LCC) at the district level by the Government where the ICC has not been constituted for the reason being, it is having less than 10 employees.
Apart from the above act, several provisions of the Indian Penal Code, 1860 were modified via the Criminal Law Amendment Act, 2013 to bring several offences under its purview including outraging the modesty of woman, assault or use of criminal force with intent to disrobe, stalking and voyeurism to widen the scope of the legislation.
"Sexual harassment" at a workspace is a global issue. It is deep-rooted within Indian society. It needs to be eradicated as it acts like a disease. Now, because of the current pandemic, most of the company have come up with the provision of 'Work from Home' which I feel is a much safer alternative of offices as it reduces the face to face interactions and also reduces the percentage of harassment as there are multiple witnesses and it is easy to collect evidence against such offenders as meetings, conferences and regular interaction thanks to technology are well documented and recorded. While the Government needs to make sure that a protected environment is provided to all the genders as all of them are vulnerable and at high risk of being exploited. An individual spends around 1/3rd of their day working at their jobs, they need to be assured by their employer of an atmosphere unhampered by sexual harassment. The government shall make the 'constitution of IC’ mandatory in every organisation with at least one-member fitting from legal background or profession. The government should not only make changes in the legislation but also monitor how this law is being implemented at the primary level. It is time that government takes stern steps to condense the figure of cases of "sexual harassment" at the workplace and provide meaning to the term 'gender equality'.
* The author is a student at Amity Law School, Amity University Noida.