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Vishaka Guidelines against Sexual Harassment at Workplace

Source – https://saksham.ugc.ac.in

Introduction:

In a landmark moment in the Indian jurisprudence, the case of Vishaka and Ors. vs. State of Rajasthan and Ors. (AIR 1997 SC 3011) decided on August 13, 1997, stands as a shining beacon of hope and progress for women’s rights and workplace safety. This pivotal legal battle, which unfolded in the late 20th century, paved the way for significant legislative reforms and set a crucial precedent in the fight against sexual harassment in the workplace.

Background:

A mandamus writ petition was filed as a class action by activists of  various women’s groups led by Naina Kapur and her organisation to realize ‘gender equality’ and prevent sexual harassment of working women in all workplaces through the judicial process, to fill the vacuum in existing legislation.

The immediate cause of the petition was an incident of alleged brutal gang rape of a social worker named Bhanwari Devi in a village in Rajasthan. The incident reveals the hazards that a working woman is exposed to and depravity to which sexual harassment can degenerate and the urgency for safeguards by an alternative mechanism in the absence of legislative measures.

Each such incident is a violation of the fundamental rights of ‘gender equality’ and the right to life with dignity and liberty. It is a violation of Articles 14, 15 and 21 of the Indian Constitution as well as Article 19(1)(g) which provides for the right ‘to practice any profession or to carry out any occupation, trade or business’ which depends on the availability of a ‘safe’ working environment. Thus, they attract the remedy under Article 32 of the Indian Constitution.

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It was submitted that the creation of a mechanism for its enforcement is the duty of the legislature and the executive, however, the petitioner prayed that the instances of sexual harassment are violations of the fundamental rights of women workers, an effective redressal requires that some guidelines should be laid down for the protection of these rights to fill the legislative vacuum.

Legal Provisions: Article 51(c) of the Indian Constitution – It provides for the directive principle to foster respect for international law and treaty obligations in the dealings or organized people with one another.

Article 253 of the Indian Constitution – It provides for the enabling power of the Parliament to enact laws for implementing the International Conventions and norms.

Entry 14 of the Union List in the Seventh Schedule of the Indian Constitution – It provides for the power to enter into treaties and agreements with foreign countries and implement treaties, agreements, and conventions with foreign countries.

Article 141 of the Indian Constitution – It provides that the law declared by the Supreme Court shall be binding on all courts within the territory of India.

Article 11 of the Convention on the Elimination of All Forms of Discrimination against Women – It provides for the obligation on State Parties to take appropriate measures to eliminate discrimination against women in the field of employment on the basis of equality and the same rights including the right to work and the right to protection of health and safety in working conditions.

Article 24 of the Convention on the Elimination of All Forms of Discrimination against Women – It provides for the obligation on State Parties to adopt all necessary measures at a national level for the realization of the rights in the Convention.

Article 11 of the General Recommendations on the Convention on the Elimination of All Forms of Discrimination against Women – It focuses on the need for equality in employment and defines sexual harassment. It provides an obligation on the States to make reports and include information on measures against sexual harassment.

Order:

The Court held that ‘gender equality includes protection from sexual harassment and right to work with dignity, which is a universally recognized global acceptance’. Thus, ‘in the absence of domestic law, the contents of International Conventions and norms are essential to formulate effective measures to check the evil of sexual harassment of working women at all workplaces’. The Court highlighted Article 51(c) and Article 253 read with Entry 14 of the Seventh Schedule of the Indian Constitution.

Thus, the Court undertook the exercise of culminating guidelines and norms to govern the behavior of the employers and all others at the workplace to burn this social evil under Article 32 for enforcement of fundamental rights in the absence of legislation and the role of the judiciary as envisaged in the Beijing Statement of Principles of the Independence of Judiciary in the LAWASIA region which was accepted as the minimum standard.

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The Court discussed the ‘Convention on the Elimination of All Forms of Discrimination against Women’ (henceforth ‘CEDAW’) to which India was a signatory and highlighted Articles 11 and 24 and Article 11 of the general recommendations of CEDAW.

The Court relied on Nilabati Behera vs. State of Orissa (AIR 1993 SC 1960) to hold that it could use international conventions and norms for construing the fundamental rights expressly guaranteed in the Indian Constitution embodying gender equality in all human spheres.

The Court, given the above, while exercising its power under Article 32 of the Indian Constitution, laid down guidelines and norms specified hereinafter for due observance at all workplaces or other institutions until a legislation was enacted for the purpose and this would be treated as law declared by this Court under Article 141 of the Indian Constitution.

Guidelines laid down by the Supreme Court:

Duty of the Employer or other responsible persons in workplaces and other institutions: It is the duty of the persons mentioned to prevent or deter any acts of sexual harassment and if committee, to provide procedures for its resolution, settlement, or prosecution by taking necessary steps.

  • Definition: Sexual harassment includes such unwelcome sexually determined behaviour, directly or by implication, as:
  • Physical contact and advances.
  • Demand or request for sexual favours.
  • Sexually coloured remarks.
  • Showing pornography.
  • Any other unwelcome physical, verbal, or non-verbal conduct of sexual nature.

Any such act or conduct against a female employee can be humiliating and may constitute a health and safety problem. If a woman reasonably believes there is a disadvantage in her employment or work if she does not consent to the act or conduct, it creates a hostile work environment.

  • Preventive Steps: All necessary preventive steps must be taken by employers or persons in charge of workplaces to prevent sexual harassment. This could include:
  • The above-mentioned acts/conduct should be expressly prohibited at the workplace through notification, publication, and circulation.
  • The Government and Public Sector should have Rules/Regulations that prohibit sexual harassment and provide for appropriate penalties.
  • Private employers should take steps to include these prohibitions in the standing order under the Industrial Employment (Standing Orders) Act, of 1946.
  • To ensure there is no hostile work environment for women in the workplace, appropriate work conditions for work, leisure, health, and hygiene must be ensured and prevent any female employee from feeling disadvantaged in her employment.
  • Criminal Proceedings: The employer must take appropriate action in accordance with law by making a complaint to the appropriate authority if such conduct amounts to a specific offence under the Indian Penal Code or any other law.
  • Disciplinary Action: Under the relevant service rules, if such conduct amounts to misconduct, appropriate disciplinary action should be taken by the employer in accordance with those rules.
  • Complaint Mechanism: An appropriate mechanism should be created in the employer’s organization for time-bound redressal of complaints by victims, irrespective of whether such conduct constitutes an offence under law or a breach of service rules.
  • Complaints Committee: The complaint mechanism should provide a Complaints Committee, a special counsellor or other support service, including maintenance of confidentiality, where necessary.

It should be headed by a woman and not less than half its members should be women. It should involve a third party, either an NGO or other body, familiar with the issue of sexual harassment, to prevent the possibility of undue pressure or influence from senior levels.

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It should make an annual report, with the complaints and actions taken, to the Government department concerned.

The employers and person in charge will also report on the compliance as per the above guidelines on the annual reports.

  • Worker’s Initiative: Employees should be allowed to raise the issue of sexual harassment at workers’ meetings and other appropriate forums, and it should be affirmatively discussed in Employer-Employee Meetings.
  • Awareness: The guidelines and appropriate legislation, when enacted, should be notified to create awareness of the rights of female employees.

Third-Party Harassment:

The employer and person in charge will take reasonable and necessary steps to assist the affected person with support and preventive action where sexual harassment occurs by an act or omission of a third party or outsider.

To ensure these guidelines are also observed by the employers in the Private Sector, the Central/State Governments are requested to adopt suitable measures including legislation.

These guidelines will not prejudice any rights available under the Protection of Human Rights Act, 1993.

The Court ordered that the above guidelines and norms are ‘to be followed strictly in all workplaces for the preservation and enforcement of the right to gender equality of the working women’.

Conclusion:

This landmark ruling not only emphasized the fundamental rights of women but also highlighted the absence of legislative measures and the need for immediate action. Through a comprehensive set of guidelines and norms, the Supreme Court set the stage for the protection of working women, fostering a safe and dignified environment, until formal legislation was enacted.

It took about 16 years after the Vishaka case for the formal legislation, known as the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013, commonly referred to as the POSH Act, to be enacted. The POSH Act was passed by the Indian Parliament and came into force on December 9, 2013.

The POSH Act builds upon the guidelines set by the Supreme Court in the Vishaka case, offering a more robust and comprehensive legal structure to address and prevent workplace sexual harassment.

-By Lakshita Bhati

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