How Indian Judiciary Makes Workspaces Safe for Women
Sexual harassment is a manifestation of unequal power relations between men and women. In cases of sexual harassment, the perpetrator uses sex as a tool of power to oppress and subjugate the victim. Sexual harassment is any unwelcome sexual behavior, which makes a person feel offended, humiliated or intimidated. It can be physical, verbal or written. Sexual harassment can occur within homes, in public spaces or at the workplace.
Bhanwari Devi case brought before the Supreme Court the fact that there was no domestic law to deal with the practice of sexual harassment at workplace.
Sexual harassment at workplace has been defined by the Supreme Court as any unwelcome or unwanted sexually determined conduct, like physical contact and advances, a demand or request for sexual favors, sexually colored remarks, showing pornography or any other unwelcome physical, verbal or non-verbal conduct of sexual nature, if it occurs at the workplace, at work-related events, work-related travel or places where people carry out work-related functions.
Sexual harassment at the workplace was recognized for the first time in India after the Vishaka and Others vs. State of Rajasthan and Others case (AIR 1997, 6 SCC 241). In this case, Bhanwari Devi, a Dalit woman employed as a saathin (grass-root functionary of the Women and Child Development Department) by the Government of Rajasthan was gang-raped in 1992 by five men of a higher caste, while trying to stop the wedding of a nine-month-old girl. Bhanwari Devi did not get justice from the High Court of Rajasthan. Vishakha, a women’s rights group from Rajasthan, hence filed a petition in the Supreme Court seeking justice for Bhanwari Devi. The case brought before the Supreme Court the fact that there was no domestic law to deal with the practice of sexual harassment at the workplace. In 1997, the Court passed a landmark judgment under the case and held that sexual harassment results in violation of the fundamental rights of gender equality and the right to life and liberty, it is also a violation of the Victim’s fundamental right under Article 19(1)(g), which is to practice any profession or to carry out any occupation, trade or business.” In this case, the court issued guidelines called the Vishakha Guidelines to prevent sexual harassment at the workplace.
These guidelines put the onus on the employer to take measures for prevention and redressal of sexual harassment by undertaking awareness programs for the creation of safe, equal and gender-friendly workplaces. The guidelines also mandated the formation of an internal complaints committee to enquire into complaints of sexual harassment. The guidelines further expanded the scope of the workplace to include “all relationships that occur between those who inhabit a common workplace.” However there was one critical issue, the internal committees were mainly set up as enquiry committees, hence, it was not clear whether their decision could be considered to take disciplinary action and in many cases of harassment, especially in the Government, enquiry was also conducted under the civil service rules. This led to victims being re-victimised by putting them through enquiry twice.
The Apparel Export Promotion Council and another v.s A.K. Chopra and others ( AIR 19991 SCC 799) was a landmark case where the Apex Court made it clear that sexual harassment at workplace is discordant with the dignity and honour of women.
A case was filed in the Supreme Court by Medha Kotwal Lele and other women rights groups stating that inspite of the Vishakha guidelines women still struggle to have their basic rights protected at work as the guidelines were breached in substance and spirit, because of certain ambiguities mainly related to whether the enquiry report of the internal complaints committee could be used to take action. The Court in its judgment in 2012 under this case, Medha Kotwal Lele and others v.s Union of India and others (2013 1 SCC 297) ruled that “The findings and the report of the Complaints Committee shall not be treated as a mere preliminary investigation or inquiry leading to a disciplinary action but shall be treated as a finding/report in an inquiry into the misconduct of the delinquent”. The Court further ruled that States and Union Territories who have not yet undertaken appropriate amendments in their respective Civil Services Conduct Rules shall do so by providing that the report of the Complaints Committee shall be deemed to be an inquiry report in disciplinary action under such Civil Services Conduct Rules. The Court also called upon “State functionaries and private and public sector undertakings, organizations, bodies, institutions etc. shall put in place sufficient mechanism to ensure full implementation of the Vishaka guidelines and further provide that if the alleged harasser is found guilty, the complainant or victim is not forced to work with or under such harasser.”
The Apparel Export Promotion Council and another v.s A.K. Chopra and others ( AIR 19991 SCC 799) was a landmark case where the Apex Court made it clear that sexual harassment at workplace is discordant with the dignity and honour of women. In this case, an accused of sexual harassment filed a writ petition in the Court challenging his removal from service, stating that he had not succeeded in making any physical contact with the victim. The High Court observed that the respondent only tried to molest the complainant and did not actually succeed, hence the action taken against him for removal from service was not warranted. Subsequently,the Apex Court expressed that in such cases, the courts must try to look at the broader implications and not deny justice to women based on narrow technicalities or dictionary meanings, the conduct of the respondent was indecent and hence amounted to sexual harassment. The order of the High Court was set aside and the order of the respondent’s removal from service as passed by the Disciplinary Committee was upheld.
Sexual harassment at workplace is a classic case where the court had taken upon itself the onus of safeguarding the fundamental rights of working women even in the absence of a domestic law.
In 2013 the Sexual harassment of women at workplace (Prevention, Prohibition and redressal) Act was passed. The Act superseded the Vishakha guidelines. It covers all workplaces, including government institutions, private sector organizations, educational institutions, sports institutions, hospitals, nursing homes, etc. It also covers any place visited by an employee as part of work including transportation provided by employer for work. The Act protected not only women who are employed but who entered workplace as a client, customer, apprentice or daily wage worker in adhoc capacity. Under the Act, every employer with more than 10 employees is required to constitute an Internal Committee. The committee will have a presiding officer, a senior woman employee, two members from amongst employees and a member from an NGO or CSO. The Internal committee will have to complete its enquiry into a complaint received within 90 days of receiving the complaint and the employer has to take action on the report of the committee within 60 days. The Act further states that contents of the complaint, inquiry proceedings, identity of aggrieved woman, respondent or witnesses shall not be published, communicated or made known to public or media. The Act also mandates the employer to provide a safe work environment for all employees by including sexual harassment as a form of misconduct in service rules; organizing awareness programs for sensitizing employees on the key provisions of the Act; display names of members of Internal committee at conspicuous places in the organization; provide a conducive environment and necessary facilities for functioning of Internal Committee. The Act further states that if an employer fails to comply with provisions of the act, a fine of Rs. 50,000/-shall be imposed. Higher penalties including cancellation of license or registration to do business shall be imposed for repeated non-compliance. The employer is also mandated to report the number of cases of sexual harassment and their disposal in the Annual report.
The key implementing authority under the Act would be a district officer of the rank of collector or additional collector, who would be notified for this purpose.
The Act also calls for the constitution of a Local Complaints Committee, having a membership of an eminent woman working in the field of social work, committed to the cause of women, two representatives from non-governmental organizations of whom atleast one should be a woman and the government officer dealing with social welfare or women and child development in the district. The local committee shall receive complaints of sexual harassment from establishments where the internal committee has not been constituted because there are less than ten employees.
Sexual harassment at workplace is a classic case where the court had taken upon itself the onus of safeguarding the fundamental rights of working women even in the absence of a domestic law by relying on the Convention for Elimination of All forms of Discrimination against Women to provide a set of enforceable guidelines to deal with the issue.
Anuja Gulati is a Gender Consultant at Population First. This series is being published in collaboration with Laadli. The views expressed are the author’s own.