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), presently in 3rd year, studying in Dr. Ram Manohar Lohia National Law University, Lucknow. I am a resident of Allahabad. ARTICLE TITLE: Looking Back: A Decade after the Vishaka Judgment SYNOPSIS OF THE ARTICLE: The article throws light on the meager implementation of the guidelines issued by the apex Court in the landmark judgment of Vishaka v. State of Rajasthan dealing with the evil of sexual harassment faced by the weaker section of the society today. The article discusses the guidelines, incidents of sexual harassment, means of curbing the same. The article concludes with the suggestion given by the author that today the quintessential question is that how far these guidelines are being followed and that the need of the hour is to have an attitudinal change and a change in the mindset of the hoi polloi which accepts the dominance of the male sect of the society even today. The elite class of our society should now become aware of the needs and rights of the women or else when this silent sect bursts it would cause destruction not less than that caused by a dormant volcano. ARTICLE BODY: LOOKING BACK: A DECADE AFTER THE VISHAKA JUDGMENT
“The courts assume that the workplace is asexual. People don't talk about, look at or think about sex when they come to work. This may not be an accurate assumption, but it underlies this requirement. Since the workplace is not supposed to be sexual, all sexual behavior is presumed unwelcomed.” -- Rita Risser, Managing Within the Law One evil showed its teeth while the other was being curbed. If men do not oppose the practice of a custom which is offensive in nature, the other sect of the society will surely raise its voice. Should this lead to women being penalized for their bold initiatives? This question taunts them who brutally gang raped an innocent female village level social worker of Rajasthan when she made the bold attempt to rectify the turpitude of child marriage being practiced in her village. This incident does nothing but narrates the facts of the infamous case of Vishaka v. State of Rajasthan1, when the Supreme Court gave one of its landmark judgments relating to “sexual harassment of women at workplaces.” The judgment was delivered after an appeal was filed in the apex court against the order passed by the high court of Rajasthan when the culprits were let go free.
AIR 1997 SC 3011
In Vishaka case, the court determined that sexual harassment did not confine to instances of rape or assault, instead it included "such unwelcome sexually determined behaviour (whether directly or by implication) as physical contact and advances; a demand or request for sexual favours; sexually coloured remarks; showing pornography; and any other unwelcome physical, verbal or non-verbal conduct of a sexual nature.” According to the Protection of Human Right Act, 1993 "human rights" means the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India. It is necessary and expedient for employers in work places as well as other responsible persons or institutions to observe certain guidelines to ensure the prevention of sexual harassment of women as to live with dignity is a human right guaranteed by our constitution. The rights which have been acquired by the competent women in this era of globalization, liberalization and privatization are to be preserved at any cost without discrimination on the grounds of sex, caste, religion etc. Article 15 of the Constitution which was considered in the Vishaka judgment deals with the prohibition of discrimination on the grounds of religion, race, caste, sex or place of birth2. In this case, the Supreme Court did not merely confine itself from interpreting what the law is but also reached out its hand in the legislative exercise of law making. It has been laid down by the Supreme Court that it is the duty of the employer or other responsible persons in work places or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedure for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps required. Women who either draw a regular salary, receive an honorarium, or work in a voluntary capacity - in the government; private sector or unorganized sector comes under the purview of these guidelines. However the basic definition of sexual harassment has been given by the United Stated Equal Employment Opportunity Commission (EEOC): “Unwelcome sexual advances, requests for sexual favours, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when submission to or rejection of this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance or creates an intimidating, hostile or offensive work environment.” The victim as well as the harasser may be a woman or a man. The victim does not have to be of the opposite sex. However here we are concerned with the tortures hurled on the so called “weaker section” of the society. There are two legally recognized types of sexual harassment: (1) quid pro quo3 sexual harassment (2) hostile environment sexual harassment. Explaining further, “Quid pro quo sexual harassment” occurs when an individual's submission to or rejection of sexual advances or conduct of a sexual nature is used as the The State shall not discriminate against any citizen on grounds only of religion, race,caste, sex, place of birth or any of them. Nothing in this article shall prevent the State from making any special provision for women and children
From the Latin, meaning "something for something." By mutual agreement, one party provides a good or service for which he or she gets another good or service in return.
basis for employment decisions affecting the individual or the individual's submission to such conduct is made a term or condition of employment. It is sufficient to show a threat of economic loss to prove quid pro quo sexual harassment. A single sexual advance may constitute harassment if it is linked to the granting or denial of employment benefits. Courts have held employers strictly liable for quid pro quo sexual harassment initiated by supervisory employees. A subordinate who submits and then changes her or his mind and refuses can still bring quid pro quo sexual harassment charges. “Hostile environment sexual harassment” occurs when unwelcome sexual conduct unreasonably interferes with an individual's job performance or creates a hostile, intimidating or offensive work environment even though the harassment may not result in tangible or economic job consequences, that is, the person may not lose pay or a promotion. Employers, supervisors, coworkers, customers, or clients can create a hostile work environment. Hostile environment sexual harassment might include: • repeated requests for sexual favours • demeaning sexual inquiries and vulgarities • offensive language • other verbal or physical conduct of sexual or degrading nature • sexually offensive, explicit or sexist signs, cartoons, calendars, literature or photographs displayed in plain view • offensive and vulgar graffiti. It has been quoted in the landmark Vishaka judgment, “Each such incident results in violation of the fundamental rights of 'Gender Equality' and the 'Right to Life and Liberty'. It is a clear violation of the rights under Arts. 14, 15 and 21 of the Constitution. One of the logical consequences of such an incident is also the violation of the victim's fundamental right under Art. 19(1)(g) 'to practice any profession or to carry out any occupation, trade or business'. Such violations, therefore, attract the remedy under Art. 32 for the enforcement of these fundamental rights of women.” What the prevailing situations demand today is the protection of the rights of women else they would have the “Hobson’s choice” of rebelling, which we know they are very well capable of. Though the guidelines have been explicitly laid down by the Supreme Court in order to curb this hideous evil, the implementation still waits to see the light of the day. Supreme Court relied upon the Convention for Elimination of All Forms of Discrimination against Women (CEDAW) - an international document which India has both signed and ratified, in the Vishaka case. This document deals in detail with sexual harassment at the workplace. Ordinarily, merely because the Indian Government signs or ratifies an international convention or treaty it does not automatically become part of the Indian law. It has to be given a legislative form and a Bill has to be passed in Parliament for it to acquire the status of law. Till this happens the treaty or convention merely remains an international commitment given by the Indian Government without necessarily having any national ramifications. The Sexual Harassment of Women at Workplaces (Prevention) Bill, 2007 is still in its way to be recognized, effectively implemented and practiced by the corporations (public or private).
What the present scenario waits for are the adequate measures for the termination of the act being talked of. These steps may include the following guidelines prescribed by the apex court: • All employers or persons in charge of work place whether in the public or private sector should take appropriate steps to prevent sexual harassment. Without prejudice to the generality of this obligation they should take the following steps: (a) Express prohibition of sexual harassment as defined above at the work place should be notified, published and circulated in appropriate ways. (b) The Rules/Regulations of Government and Public Sector bodies relating to conduct and discipline should include rules/regulations 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 and hygiene to further ensure that there is no hostile environment towards women at work places and no employee woman should have reasonable grounds to believe that she is disadvantaged in connection with her employment. • Criminal Proceedings : Where such conduct amounts to a specific offence under the Indian Penal Code or under any other law, the employer shall initiate appropriate action in accordance with law by making a complaint with the appropriate authority. In particular, it should ensure that victims, or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment. The victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer. • Disciplinary Action : Where such conduct amounts to misconduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules. • Complaint Mechanism : Whether or not such conduct constitutes an offence under law or a breach of the service rules, an appropriate complaint mechanism should be created in the employer's organization for redress of the complaint made by the victim. Such complaint mechanism should ensure time bound treatment of complaints. • Complaints Committee : The complaint mechanism should be adequate to provide, where necessary, a Complaints Committee, a special counsellor or other support service, including the maintenance of confidentiality. The Complaints Committee should be headed by a woman and not less than half of its member should be women. Further, to prevent the possibility of any undue pressure or influence from senior levels, such Complaints Committee should involve a third party, either NGO or other body who is familiar with the issue of sexual harassment. The Complaints Committee must make an annual report to the Government department concerned of the complaints and action taken by them.
The employers and person in charge will also report on the compliance with the aforesaid guidelines including on the reports of the Complaints Committee to the Government department. • Workers' Initiative : Employees should be allowed to raise issues of sexual harassment at workers' meeting and in other appropriate forum and it should be affirmatively discussed in EmployerEmployee Meetings. • Awareness : Awareness of the rights of female employees in this regard should be created in particular by prominently notifying the guidelines (and appropriate legislation when enacted on the subject) in a suitable manner. • Third Party Harassment : Where sexual harassment occurs as a result of an act or omission by any third party or outsider, the employer and person in charge will take all steps necessary and reasonable to assist the affected person in terms of support and preventive action. • The Central/State Governments are requested to consider adopting suitable measures including legislation to ensure that the guidelines laid down by this order are also observed by the employers in Private Sector. • These guidelines will not prejudice any rights available under the Protection of Human Rights Act, 1993. How strictly the guidelines are being followed is the quintessential question of the day. Even after the efforts of certain non governmental organizations, there have been cases of sexual harassment at workplaces. Women domestic servants are also victims of sexual harassment. In Delhi Domestic Work of Women’s forum v. Union of India4, the plight of four domestic women servants was brought to the court through a public interest litigation (PIL) filed by the women’s forum. These tribal women had been raped by seven army personnel while they were traveling in a train from Ranchi to Delhi. The court identified the flaws in the system and laid down certain guidelines as well for the trial of rape cases. Another case to be referred is, Bodhisathwa v. Subhra Chakraborty5. This is not a typical case on the rights of working women but is relevant in the discussion as the Supreme Court referred to the pitiable condition of women in society and observed that women enjoy equal status under the constitution and also added that women have the right to life and liberty. They also have the right to be respected and treated as equal citizens. There honour and dignity cannot be touched or violated. They also have the right to lead an honourable and peaceful life, which is a part of right to life contained in article 21 of the Constitution of India. Another very important case to be referred is that of Apparel Export Promotion Council v. A.K. Chopra6, in which Article 14 has been invoked to prohibit sexual harassment of working women on the ground of violation of the right of gender equality.
(1995) 1 SCC 14 (1996) 1 SCC 490 6 (1999) 1 SCC 759; AIR 1999 SC 625
In another instance, a senior woman official was horrified to find that a used Nirodh contraceptive had been slipped into her bag while she was working at the tea board. A woman employee in the customs department, who had levelled a charge of sexual harassment against a senior colleague, was shocked to receive a letter from the minister of state of shipping requesting her to attend an enquiry he was holding into her case at his residence-cum-office. A senior architect in the public works department (PWD) promised to get a woman employee’s transfer cancelled if she was willing to parade before him in a nightie. These cases are but the tip of the iceberg with more and more women workers in Public Sector Units (PSUs) and government firms complaining of sexual harassment in the workplace. Such instances compel us to ask ourselves quo vadis7 India. Is this what India is heading towards and claiming itself to be the leader of the third world countries? Brinda Karat, general secretary of the All India Democratic Women’s Association says, ‘‘despite the directives of the Supreme Court in the famous Vishaka case, most bureaucrats continue to believe these cases do not merit any serious attention.’’ She cites the example of the woman employee working in the tea board and says, ‘‘although her case was placed before the chairperson of the company and also before the complaints committee, no action has been taken against the two suspected culprits. Rather, one has received a promotion and the other is continuing with his sexual innuendoes.’’ Several organizations have carried out research on sexual harassment at workplace that has been widely disseminated. A survey by Sakshi (Delhi) throws up some worrying data: 80% of respondents revealed that sexual harassment at workplace exists, 49% had encountered sexual harassment at workplace, 41% had experienced sexual harassment at workplace, 53% women and men did not have equal opportunities, 53% were treated unfairly by supervisors, employers and co-workers, 58% had not heard of the Supreme Court’s directive of 1997, and only 20% of organisations had implemented the Vishakha guidelines (Dalal, 2003). Controversy over sexual harassment at workplace by the senior manager of Infosys (Nair, 2003), by the chairman and managing director of NALCO (Ramanujan, 2004), the Medha Kotwal petition on sexual harassment at workplace of a PhD student by her guide at M S University, Vadodara, complaints against a senior professor at Lucknow University (Times of India, 2003), complaints about sexual harassment of women by the film star Sushmita Sen against the Chief Executive Officer of Coca-Cola have all alerted employers to the economic burden and efficiency loss from sexual harassment at workplace. Still, most private companies refrain from investing funds in such committees8. An eye-opening true incident needs to be reported here, which forms a part of a survey done by Paramita Choudhari, Fellow, Health and Population Innovation Fellowship Programme, where a 36 years old nurse narrates “After an open heart surgery a patient is kept in the observation room adjacent to the operation theatre. The sister has to stay there with the patient for some time. The doctor is not supposed to visit the patient unless he is called for. One day when I was in the observation room adjusting some equipment fixed on a patient, a senior doctor came in and embraced me from the back. I could not move my hand as then the patient’s life would have been at stake. So I continued doing what I had to till he released me.” This is the true state of affairs today
The title is Latin, which means “Where are you going?”
and if ratifications are not made the situations may get worsen which in turn would surely be an obstacle in India’s progress. Vishaka judgment was delivered in 1997 and many years after that no efforts were made in the direction of enacting a law. But the guidelines were followed more in their breach. Very few complaints committees were set up, service rules were not amended and the judgment was widely disregarded both by public and private employers. But one of the fall out of the judgment was that many civil society organizations became aware of it and started to publicise it and pushed for its implementation. Around the same time many women who were being sexually harassed started breaking their silence and started demanding action from the employers. In fact a number of these cases arose from university and college campuses. One such case happened in the M.S. University at Baroda where a student was sexually harassed by her professor. Her protests led to victimization and certain women’s organizations wrote protest letters to the Chief Justice of India. The letters were converted into a Writ Petition and the Court started supervising the implementation of Vishaka guidelines. Notices were issued to the Central Government, all State Governments and the Union Territories asking them to report to the Supreme Court the measures taken by them for complying with the Vishaka Guidelines. The Governments filed Affidavits which bordered on the pathetic. But what this did was at least trigger a flurry of activities at the Central Government and the State Government level. Many of the service rules were amended to bring in sexual harassment as a specific head of misconduct. In many states the Employment Standing Orders Act which apply to private employers were similarly amended. Committees were set up in various public sector organizations. University Grants Commission sent a letter to the Universities asking them to set up committees. The Supreme Court on the other hand continued monitoring the progress and now issued notices to even professional bodies. Though things were moving the changes were essentially cosmetic. Most of the private employers had not set up any committees and those public sector organizations where committees were set up they did not function effectively. While governments should speed up the legislation, the onus is also on both men and women to forge healthy professional relationships. With the exception of the stray, headline-grabbing account of sexual harassment, the impregnable silence engulfing sexism and harassment in the workplace is yet to be breached. The deliberate silencing at the behest of our social structures and organizational might is oft confused with absence till a rare reported incident debunks the egalitarian, equitous workplace myth, leading one to acknowledge what every professional knew but dare not admit - women may have fought stereotypical roles of homemakers to enter the workplace but organizational structures are still configured to view women through the prism of gendered identities. Sexual harassment at the workplace, underscoring powerlessness of women, is a manifestation of the insidious operation of patriarchal power that encodes women in dominant, social stereotypes. Working women have faced hostility in countless subtle and direct ways ranging from condescending attitudes, hostile men's leagues in organisations, unequal pay, delayed promotions, sly remarks on plight of spouses of working women, less than humorous remarks on women's appearance, flirtatious glances, direct request for sexual favours. Not surprisingly many cases go unreported. The dice is, thus, heavily loaded against women. Claims of new age companies of creating liberal and egalitarian workplaces are under serious examination.
There is no denying the fact that sexual harassment exists, outside as well within the workplace, that it needs to be curbed, and that women have been at the receiving end of varying shades of gender discrimination, professional and/or sexual. We even have instances of sexual harassment of women taking place via. short messaging service, when the employers may threaten women through messages offering them or denying them certain favours concerned with their job profiles. Such a misuse of the advancing technology indicates immature development and frustration at all levels. Since there is evidently a thin line demarcating eve teasing and harassment the women need to come out in full force and campaign against these inequalities which undermines their efforts at equal gender footing in public places- which in turn affect their sense of security and personal space. The best way to discourage lewd office behavior would be to make the issue less secretive by making it a public grievance. This would facilitate shaming the guilty and preventing them from becoming repeat offenders. It would be ideal to make the workplace a professionally dynamic place, where a woman can realize her professional dreams and perform to the best of her abilities without having to worry about her gender as an issue she needs to confront daily. However media, being the fourth and the most important estate of democratic India, has taken firm stands to eradicate this bestiality. As there is always the other side, the flip side of a coin, a very contemporary incident needs to be narrated here regarding the functioning of committees. It was recently in the headlines (Lucknow) that the Mishra Committee has been disbanded. This committee investigated the irregularities in the police department recruitments during the Mulayam Singh Yadav regime. The Mishra Committee reported that certain sexual favors were sought from women recruits. However Cabinet secretary Shashank Shekhar Singh told the journalists on 4th October 2007 that, “The cabinet did not take note of any such comments.” Even though the Mishra Committee had levelled sexual harassment charges in the presence of principal secretary at a press conference on September 30, it did not become a part of the home department report presented to the cabinet9. Thus we see that effective working of committees may prove beneficial to the women for being redressed for the agony suffered by them. “If all men are born free, how is it that all women are born slaves?10” To conclude, the end of sati, johar, purdah system, end of any form of discrimination against women, giving them titular rights to work does not in any case give men the sanction to punish women the way they want to and for what they consider to be wrong. Regrettably there is no tangible legislation that tackles this problem of sexual harassment. Where are the victims supposed to go for redressal is still a lingering question. Only conversations would lead us nowhere, we need to have some concrete provision for the cessation of the same. Ignorance is the core of this problem. Most of the women are not even aware of the Vishaka judgement, they don’t even know that there are guidelines provided for them. In such a scenario, expecting that sexual harassment can
Government Disowns Remark on Women Recruits, M. Hasan, Friday, October 5, 2007 Hindustan Times 10 By Mary Astell
be eradicated is like trying to trap a bee from the beehive, the deeper you go the more problems you face and the more stings you receive. It is a well known fact that India has been a victim of corruption, be it pre or postVishaka judgment era. The deluge of improbity and turpitude from which our society is still struggling to pop out, has eaten away India’s sanctity and purity which was once dreamt of by the forefathers of Indian democracy. This is also applicable in the functioning of the above mentioned committees and the effective implementation of the guidelines prescribed by the Supreme Court. Thus what we find today is an era in which the silent majority, of which women are a substantial part, is being oppressed and hit on their Achilles’ heel where they prove to be helpless. This devil of corruption is rampant almost in every part of the Indian democracy be it the executive, legislature or the last resort, that is, judiciary, leaving with the hoi polloi no option but revolt which will surely be fatal for India’s progress. The elite class of our society should now become aware of the needs and rights of the women or else when this silent sect bursts it would cause destruction not less than that caused by a dormant volcano. "Though women are scaling new heights, a lot of work still has to be done for their uplift and overall development. Women are still struggling to create a niche in a male-dominated society." Men need to realize the significance of their counterparts. Subhash Chandra Bose has rightly said, “It is not possible for a bird to fly on one wing.” Attitudinal modification is the necessity of the contemporary times. “The greatest discovery of my generation is that human beings can alter their lives by altering their state of mind.” - William James, American Psychologist
REFERENCES 1) Vishaka vs. State of Rajasthan, AIR 1997 SC 3011 2) Barry S. Roberts and Richard A. Mann, “Sexual harassment at Workplace: a primer” http://www3.uakron.edu/lawrev/robert1.html, visited on October 4, 200.
3) Mihir Desai, “Starting the battle”, Combat Law, Volume 4, Issue 1, January-February 2005. http://www.indiatogether.org/combatlaw/vol3/issue5/visakha.htm, visited on October 4, 2007. 4) Deepali Chandhoke, “Impact of sexual harassment on women” http://www.legalserviceindia.com/helpline/help6.htm, visited on October 6, 2007. 5) Sexual Harassment of Women in the Workplace, Experiences of Women in the Health Sector, By Paramita Choudhari, Health and Population Innovation Fellowship Programme, Working Paper, No.1 6) Vibhuti Patel, “A Brief History of Battle Against Sexual harassment at the workplace” ,Infochange News and Features, November 2005. http://www.infochangeindia.org/analysis100.jsp, visited on October 7, 2007. 7) Rakesh Shukla, “We need strong legislation to prevent sexual harassment in the workplace”, Infochange News and Features, September 2007. http://www.infochangeindia.org/analysis228.jsp, visited on October 8, 2007. 8) Padmini Devrajan, “Forge a Healthy Workplace”, Online edition of India’s National Newspaper, Sunday, December 21, 2003. http://www.hindu.com/mag/2003/12/21/stories/2003122100130600.htm, visited on October 11,2007. 9) http://peoplefriendlypolice.wordpress.com/supreme-court-guidelines-againstsexual-harassment/, visited on October 10, 2007. 10) Workplaces not safe enough for Women, April 7, 2002, 0403 hrs IST, Rashme Sehgal, TNN. 11) http://timesofindia.indiatimes.com/articleshow/6103197.cms visited on October 11, 2007. 12) http://peoplefriendlypolice.wordpress.com/supreme-court-guidelinesagainst-sexual-harassment/, visited on October 11, 2007. 13) http://www.boloji.com/analysis2/0242.htm, visited on October 5, 2007. 14) http://blizzard.sulekha.com/blog/post/2007/05/sexual-harassment-in-theworkplace.htm, visited on October 12, 2007. 15) Delhi domestic Work of women’s forum v. Union of India, (1995) 1 SCC 14 16) Bodhisathwa v. Subhra Chakraborty, (1996) 1 SCC 490 17) Apparel Export Promotion Council v. A.K. Chopra, AIR 1999 SC 625 18) Oxford Dictionary of Quotations and Proverbs, Part 2.
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