INTRODUCTION TO THE VISHAKA GUIDELINES
Sexual Harassment is a phenomenon which is common in today’s world. It poses threat to the dignity and well-being of the women. We hear a lot of sexual harassment cases in India. Earlier to 1997, there were no legislations or guidelines for the prevention, redressal of the sexual harassment cases at workplaces. When any case arose, the victim has to file a case under Section 354 or Section 509 of the Indian Penal Code, 1860.
Vishaka and Ors. v State of Rajasthan was the landmark judgment which filled the above vacuum. The Supreme Court held that sexual harassment at workplace violates the Fundamental Rights i.e. Article 14 (Right to Equality), Article 15 (Prohibition of Discrimination), Article 19(1)(g) (Right to practice any profession or carry out any trade, occupation or business), and Article 21 (Right to Life and Personal Liberty) of the Indian Constitution. The Hon’ble Supreme Court issued guidelines for the implementation of Vishaka Guidelines, requiring the employers at the workplace and other institutions to observe it and prevent sexual harassment of women. As there is no legislation for the same was at a place, the Court resorted to the guidelines for fighting against sexual harassment. The Court led down the definition of “sexual harassment” as “unwelcome sexually determined behavior, whether directly or by implication, as a physical contact and advances or a demand or request for sexual favours or sexually coloured remarks or showing pornography or any other unwelcome physical verbal or non-verbal conduct of sexual nature.” The Court referred to India’s ratification of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which has prohibited discrimination in the workplace and outlines specific state obligations to end it:
- Article 11(1) (a, f): The right to work and the right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction
- Article 24: States parties undertake to adopt all necessary measures at the national level aimed at achieving the full realization of the rights recognized in the present Convention
- General Recommendation No. 19: On the elimination of violence against women
The guidelines were:
- It shall be the duty of every employer at workplaces or institutions to deter or prevent sexual harassment and provide a mechanism for resolution, settlement, and prosecution of the sexual harassment cases.
- The rules and regulations of the public sector companies and government to implement the guidelines in their rule of conduct and prescribe for appropriate penalties for the offenders.
- The private employers have to implement the same by including in the Industrial employment (Standing Orders) Act, 1946.
- The States and Union territories were given the deadline of two months to implement the above guidelines and form an adequate number of Complaints Committees at the taluka, district, and State level. If there is only one Committee in place, then the States and Union territories have to establish more of its kind. It has to enforce Vishakha Guidelines as soon as possible in an effective manner. When an alleged harasser is found guilty, then the victim-complainant cannot be compelled to work under the same employer. There has to be a mechanism in place to address the problem like the intimidation of witnesses and complainants etc.
- The Court also directed the bar council of India to ensure that the registered bar councils have to implement the guidelines in their rules of conduct. The Medical Council of India, the Council of Architecture, the Institute of Chartered Accountants, the Institute of Company Secretaries and other statutory institutes should ensure that the organizations, bodies, associations, institutions, and person registered/affiliated with them follow the guidelines.
- If there is any non-compliance of the Vishaka Guidelines, the aggrieved person has the right to approach the High Court to address the same issue. The aggrieved party can ask for the transfer of the department. Lastly, the Court requested the Central Government to make a legislation regarding the prevention of sexual harassment of women at workplaces. Till the time, the guidelines would have the force of law.
After 16 years in 2013, the Government implemented the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 and Sexual Harassment of Women at Workplace Rules, 2013. The legislation reiterated the same definition of “sexual harassment” as given in the guidelines by the Apex Court. But this definition does not include any type of sexual harassment of women through electronic means. The complaint committee, whether it is the local one or the internal one, consists of more than women (50 % or more). It does not mandate any kind of legal expert in the committee. The Act has given a lot of powers to the committee but there is a high chance of its misutilization if it is not used appropriately.
The Act has recommended for the conduct of workshops by the employers at the workplaces in a timely manner. But it has not prescribed the intervals in which the workshops have to be constructed. There is no penalty prescribed for not conducting the workshops. The Act addresses only the redressal of the sexual harassment of women at workplaces. There are many cases where men and transgenders are also harassed sexually. The implementation of the Act is very low. as per a report, “70% of the working women do not report sexual harassment at workplace due to fear of repercussions.” Additionally, “the ambit of the Act is not wide enough to cover harassment by the boss or colleagues at a party as the Act entails only sexual harassment during the course of employment or arising out of the employment.”
The Act is a pro-active step taken by the Central Government. Although it has many loopholes, the Act can be implemented efficiently, if the same can be addressed successfully.