Vishaka committee impact still left unapplied
If you are a female working or student, whatever may be the
situation? Make sure you are aware of Vishaka guidelines and GENDER
SENSITISATION COMMITTEE AGAINST SEXUAL HARASSMENT (GSCASH) at your
institute.
Only a Few know that Vishaka is actually the name of an
organization which, along with other organizations, rallied for special
measures to deal with sexual harassment inflicted in the course of employment.
Fifteen years ago, a writ petition by Vishaka and others was
filed following several cases of sexual harassment at the workplace. It was
clear that the criminal law neither recognized sexual harassment in all forms
as an offence, nor provided an efficacious remedy to deal with the problem.
The outcome was the landmark Vishaka Judgment which finds
reference not just in the work of women’s groups but also among various
sections of society – trade unions, workers, students. The judgment has become
the foundation for orientation/training programs for government officers and
staff, for judiciary, and for complaints committees constituted in accordance
with the Vishaka Judgment. The judgment is the reference point in law classes
and law journals across the country, not just as information, but in
discussions that centre on various aspects that its pronouncement threw up.
Unlike most judgments which largely adorn law journals and
are at best references for similar cases, this judgment has leapt out of
the courtroom into the public domain both because of its nature and because of
the determination of women’s groups to take the case guidelines to their
enactment in real life.
What new course in jurisprudence did the Supreme Court chart
via this judgment? When the legislature failed to move in with a domestic law
that would meet the imperatives of the Constitution of India and of India ’s
ratification of conventions such as the Convention for the Elimination of All
Forms of Discrimination against Women (CEDAW), the apex court pronounced
guidelines that would hold till legislation was passed. That hour of the
legislation is, it seems, fast approaching. The Protection of Women from Sexual
Harassment at the Workplace Bill was tabled in the Lok Sabha in December 2010
and was thereafter referred to the Parliamentary Committee on Human Resource
Development headed by MP Oscar Fernandes for deeper examination. The committee
invited suggestions from different stakeholders and the public to factor in
various concerns. Several representations were made to the committee and it is
expected to submit its report soon.
The judgment recognized sexual harassment as a violation of
fundamental rights of women to equality, non-discrimination, the practice of
occupation, trade, business or profession of one’s choice, and to life and
liberty. The court noted that the fundamental right to carry on any occupation,
trade or profession depends on the availability of a “safe” working
environment. The judgment thus clearly veered the perception of sexual
harassment at the workplace towards viewing it as a violation of human rights
or fundamental rights.
The judgment also drew attention to the responsibility of
the state, as enshrined in the Constitution, to make provision for securing
just and humane conditions of work. As it did so, it cast a responsibility on
every employer to ensure that the workplace is free of sexual harassment.
Not even the NGOs are exempted from the requirement of policies and mechanisms. as several NGOs today have acquired the
characteristics and dimensions of corporations.
What do the guidelines say:-
Vishaka’s case:
It was in 1997 in Vishaka vs. State ofRajasthan and others, that for the first
time sexual harassment had been explicitly- legally defined as an unwelcome
sexual gesture or behavior whether directly or indirectly as
It was in 1997 in Vishaka vs. State of
1. Sexually colored remarks
2. Physical contact and advances
3. Showing pornography
4. A demand or request for sexual favors
5. Any other unwelcome physical, verbal/non-verbal
conduct being sexual in nature.
It was in this landmark case that the sexual harassment was
identified as a separate illegal behavior. The critical factor in sexual harassment
is the unwelcomeness of the behavior. Thereby making the impact of such
actions on the recipient more relevant rather than intent of the perpetrator,
this is to be considered.
The judgment was delivered by J.S.Verma. CJ, on behalf of
Sujata Manohar and B.N.Kirpal, JJ., on a writ petition filed by ‘Vihska’- a non
Governmental organization working for gender equality by way of PIL seeking
enforcement of fundamental rights of working women under Article.21 of the
Constitution.
The immediate cause for filing the petition was the alleged
brutal gang rape of a social worker of Rajasthan. The Supreme Court in absence
of any enacted law (which still remains absent- save the Supreme Court
guidelines as stated hereunder) to provide for effective enforcement of basic
human rights of gender equality and guarantee against sexual harassment, laid
down the following guidelines:
1. All the employers in charge of work place
whether in the public or the private sector, should take appropriate steps to
prevent sexual harassment without prejudice to the generality of his obligation;
he should take the following
steps:
a) Express prohibition of sexual harassment
which includes physical contact and advances, a demand or request for
sexual favors, sexually colored remarks, showing pornographic or any other
unwelcome physical, verbal/ non-verbal conduct of sexual nature should be
noticed, published and circulated in appropriate ways.
b) The rules and regulations of government and public sector bodies relating to
conduct and discipline should include rules prohibiting sexual harassment and
provide for appropriate penalties in such rules against the offender.
c) As
regards private employers, steps should be taken to include the aforesaid
prohibitions in the Standing Orders under the Industrial Employment (Standing
Orders) Act, 1946.
d) Appropriate
work conditions should be provided in respect of work leisure, health, hygiene-
to further ensure that there is no hostile environment towards women and no
woman should have reasonable grounds to believe that she is disadvantaged in
connection with her employment.
2. Where such conduct amounts to specific
offences under the Indian
Penal Code or any other law the employer shall initiate appropriate action in
accordance with the law, by making a complaint with the appropriate
authority.
3. Victims of sexual harassment should have the
option to seek transfer of the
perpetrator or their own transfer.
As stated by
the Supreme Court, these guidelines are applicable to:
a) The
employer or other responsible persons or other institutions to prevent sexual
harassment and to provide procedures for the resolution of complaints;
b) Women who either draw a regular salary, receive an honorarium, or work
in a voluntary capacity- in the
government, private or organized sector come under the purview of these
guidelines.
Preventive Steps:
1. Express prohibition of sexual harassment should be notified and circulated.
2. Inclusion of prohibition of sexual harassment in the rules and regulations of government and public sector.
3. Inclusion of prohibition of sexual harassment in the standing orders under the Industrial Employment (Standing Orders) Act, 1946 by the private employers.
4. Provision should be made for appropriate work conditions for women.
1. Express prohibition of sexual harassment should be notified and circulated.
2. Inclusion of prohibition of sexual harassment in the rules and regulations of government and public sector.
3. Inclusion of prohibition of sexual harassment in the standing orders under the Industrial Employment (Standing Orders) Act, 1946 by the private employers.
4. Provision should be made for appropriate work conditions for women.
Procedure pertaining to filing
of complaints:
1. Employers must provide a Complaints Committee which is to be headed by a woman; of which half members should be women.
2. Complaints Committee should also include an NGO or other organization- which is familiar with sexual harassment.
3. Complaints procedure should be time bound.
4. Confidentiality of the complaints procedure has to be maintained.
5. Complainant or witnesses should not be victimized or discriminated against- while dealing with complaints.
6. The Committee should make an annual report to the concerned Government department and also inform of the action (if any) taken so far by them.
1. Employers must provide a Complaints Committee which is to be headed by a woman; of which half members should be women.
2. Complaints Committee should also include an NGO or other organization- which is familiar with sexual harassment.
3. Complaints procedure should be time bound.
4. Confidentiality of the complaints procedure has to be maintained.
5. Complainant or witnesses should not be victimized or discriminated against- while dealing with complaints.
6. The Committee should make an annual report to the concerned Government department and also inform of the action (if any) taken so far by them.
Miscellaneous
Provisions:
1. Guidelines should be prominently notified to
create awareness as
regards the rights of the female employees.
2. The employers should assist the persons
affected, in cases of sexual
harassment by outsiders or third parties.
3. Sexual harassment should be discussed at
worker’s meetings, employer-employee
meetings and at other appropriate forums.
4. Both Central and State governments are
required to adopt measures
including legislations to insure that private employers also observe these
guidelines.
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