Vishaka: The pioneer against sexual harassment of women at workplace - Gupta Neha Rajesh

Introduction:

Over time, women have had to prove themselves to be as capable as the other gender. Today, not only men but women are also the bread earner of the family. However, while working there are many factors that make the work environment hostile and toxic for women. One of the major reasons for such an environment is the sexual harassment of women at workplace. Sexual harassment of women is universal whether it is a developing country like India or any developed country; cruelty, violence, and sexual harassment in all forms are prevalent against women all over the world. Sexual harassment has been defined differently in different laws; in layman language, sexual harassment can be understood as sexual unwelcomed behavior and it may include making sexual advances repeatedly, lewd comments over the body, appearance, forcible touching, etc. Such behavior towards women impedes their ability and productivity to perform well while working. Sexual harassment also instigates gender discrimination against working women and is a clear violation of their fundamental rights (Article 14, 15, 19(1) (g), 21) mentioned under the Constitution of India, 1950. Different laws have been implemented to tackle the sexual harassment issue and to make the work environment secure and non-toxic for women.

Statue and provisions:

1. Article 14, 15, 19(1)(g), 21 Constitution of India,1950

2. Indian Penal Code,1860, No.45, Section 354, 354A, 354B, 354C, 354D, 509

3. Sexual Harassment of Women at Workplace(Prevention, Prohibition and Redressal) Act,2013

4. Industrial Employment( standing orders) Act,1946

Vishaka Guidelines:

Vishaka and others vs. State of Rajasthan 1  and others was the first case where sexual harassment of women at workplace was recognized exclusively. Pre-Vishaka women had to take the help of Section 354 and Section 509 of the Indian Penal Code, 1860 to file a complaint about sexual harassment at workplace as there were no other guidelines or laws to govern it.

Bhanwari Devi, a government servant who tried to prevent child marriage as her duty was raped repeatedly by higher class men of the Gujjar community. When Bhanwari Devi did not get justice from the Rajasthan High Court which acquitted the rapists then a women’s rights group called Vishaka filed a Public Interest Litigation (PIL) in the Supreme Court of India.

In 1997, the Supreme Court of India delivered a landmark judgment in the Vishaka case by laying down certain guidelines to deal with the complaints related to sexual harassment of women at workplace. Supreme Court took into consideration the guidelines of ‘Convention on Elimination of All Forms of Discrimination against Women’ which was adopted by the United Nations in a general assembly in 1979. The Supreme Court held that sexual harassment of Women at workplace was a clear violation of their Right to equality (Article-14), Prohibition of discrimination on grounds of sex( Article-15), Right to practice any profession, trade, or business(article 19(1)(g) and Right to personal life and Liberty (Article-21). 

Sexual harassment was defined as unwelcomed sexually determined behavior like:

1. Physical contact and advances

2. Demand or request for sexual favors

3. Sexually colored remarks

4. Showing pornography

5. Any other unwelcome verbal or non-verbal sexual conduct.

The court said that all people in charge of work must take appropriate steps to prevent sexual harassment. The preventive measures were:

1. Prohibition of sexual harassment at work place should be published, notified, and circulated in appropriate ways

2. The governmental rules relating to conduct and discipline must include rules for the prohibition of sexual harassment and also

provide penalties for the offender.

3. In regards to a private employer, to include such prohibition under Standing order of Industrial Employment (standing orders)

Act, 1946.

4. To provide appropriate working conditions and to ensure non-hostility of environment towards women at workplace.

1 1997 6 SCC 241: AIR 1997 SC 3011

The Court held that the guidelines are to be implemented until full-fledged legislation is passed regarding this matter. 

Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013:

After 16 years of Vishaka Guidelines on December 09, 2013, the Sexual Harassment at Workplace Act,2013 (further denoted as POSH Act) was implemented all over India with the objective to provide women protection against Sexual harassment at workplace with redressal of complaints system.

The POSH act defines Sexual harassment as it was defined in the Vishaka Guidelines however has added some circumstances which if are related to behavior of sexual harassment, may amount to sexual harassment:

1. Implied or express promise of partial treatment or detrimental threat in her employment

2. Implied or express threat about her present or future status of employment.

3. Interfering in her work or creating a hostile environment for working.

4. Humiliating her which may affect her health and safety.

One of the most important features of this act is that it provides for the setting of an Internal Complaints Committee (ICC) which must be headed by a woman at every office of the organization or institution to hear and redress issues related to sexual harassment against women at workplace. It must have more than 10 members, at least one- half of which must be women. ( Section 4 of POSH,2013) and if the number of employees is less than 10 then the act provides for setting up Local Complaints Committee (LCC) in every district by the district officer( Section5,6,7 of POSH,2013).

After any women approach the ICC or LCC and lodge a complaint then the respondent is issued a notice in respect of the complaint within 7 days. The inquiry into the matter must be completed within 90 days and then the employer must implement the order of ICC fully within 60 days. The limitation period for a woman to complain is 3 months from the incident and it may exceed to 6 months under special circumstances.

A victim of sexual harassment at workplace is termed as ‘Aggrieved woman’ & defined under Section 2(a) which includes:

1. In regards to Workplace, a woman of any age; whether employed or not and alleges to have been sexually harassed by the respondent.

2. In regards to a dwelling place or house, any woman of any age employed at such dwelling or house.

Whereas, Workplace which is defined under Section 2(o) includes governmental organization, any private sector, hospitals or nursing home, any sports institute or place, any place visited by the employee arising out of or during the course of employment including transportation by the employer for undertaking such journey or a dwelling place or a house.

Under this definition, workplace is not just the traditional setup of an office but includes the concept of an extended workplace. Hence, this section also applies to all the women working from home. Moreover, in the current pandemic, such cases of sexual harassment while working from home can be seen more frequently. For example, while office video conferencing from home if any person passes

lewd comments or shows pornography to a woman etc. then it would amount to sexual harassment of women at workplace.

Hence Work from home also comes into the ambit or workplace as defined under section2 (o) of POSH, 2013, all the safeguards under

this act will also be available to a woman working from home.

Analysis :

POSH Act, 2013 was implemented after 16 years of Vishaka guidelines which is huge gap. Even Vishaka guidelines were not taken seriously until the case of Medha Kotwal vs Association of India(2013).The major objective of POSH Act, 2013 was to end Sexual harassment however even after 7 years of its implementation the cases haven’t dropped as expected which may be due to improper implementation of ICC or unawareness. Many unorganized sector do not have ICC. The act isn’t gender neutral. Awareness sessions must be held for both men and women in order to sensitize this issue. Also, the duration of complaining period is less as it may take

the victim more than 3 or 6 months to overcome from the trauma. However it must be appreciated that such initiation was taken by the government for protection of women against sexual harassment at work. It ingrains confidence inside women to work freely and they can ensure their safety.

Conclusion:

Sexual harassment is a serious issue and is also recognized and hence it has become very important to protect women against such harassment, though the act has some negative aspects it stills protects women against such atrocities and violence.