In 1997 the Supreme Court issued the Vishakha Guidelines on sexual harassment at the workplace. In 2004, Lawyers Collective and other CSOs formulated a draft Bill on sexual harassment, which, if passed by Parliament this year, will go a long way towards reducing sexual harassment in the workplace
|A still from Bawandar, based on the life of Bhanwari Devi.|
In the immediate aftermath of the rape, Bhanwari Devi’s unthinkable trauma only festered as the village authorities, the police and doctors all dismissed her situation. A trial court acquitted the accused.
Appalled at the blatant injustice and inspired by Bhanwari Devi’s unrelenting spirit, saathins and women’s groups all over the country launched a concerted campaign to bring her justice. They filed a petition in the Supreme Court of India, under the collective platform of Vishakha, asking the court to take action against sexual harassment faced by women in the workplace: Bhanwari Devi had attracted the wrath of the men solely on the basis of her work. The result was the Supreme Court judgment of 1997, popularly known as the Vishakha Guidelines.
The Vishakha Guidelines augured well for the status of women in India. Finally there was legal recognition of the hostility women face in the workplace, a hostility that all too often results in sexual harassment.
According to the Supreme Court, sexual harassment includes any unwelcome physical contact or advances; demands or requests for sexual favours; sexually-coloured remarks; displays of pornography; other unwelcome physical, verbal or non-verbal conduct of a sexual nature.
What the judgment stresses is the presence of the ‘unwelcome’ element, in word or action, of a sexual nature. Any form of sexual attention becomes harassment when it is ‘unwelcome’. Whether the perpetrator intentionally or unintentionally sexually harasses a person is not the issue. How the person, at whom it is directed, receives that behaviour is crucial because of the subjective nature of sexual harassment.
The judgment created mandatory sexual harassment prevention guidelines for the workplace, applicable all over India. All employers or responsible heads of institutions must institute certain rules of conduct and take preventive measures to stop sexual harassment in the workplace. The guidelines direct employers to set up complaints committees within the organisation, through which women can make their complaints heard.
These complaints committees must be headed by women, and at least half its members should be women. To prevent undue pressure from within the organisation, the committee should include a third-party representative from a non-governmental organisation or any other individual conversant with the issue of sexual harassment.
Along with the above remedial measures, the judgment also suggested certain preventive steps to be taken by employers:
- An express prohibition of sexual harassment as defined above should be notified, published and circulated in appropriate ways.
- Amendment of conduct service rules to include sexual harassment as an offence and provide for appropriate discipline against an offender.
The Vishakha judgment was historic because this was the first time the Supreme Court had drawn upon an international human rights law instrument, the Convention on the Elimination of All forms of Discrimination against Women (CEDAW). It also pronounced a precedent regarding how courts should rely on international human rights law standards in cases where there is no national legislation.
However, even after such palpable achievements the ground realities remain the same. Few efforts were made to enact the law, even six years after the 1997 judgment. Very few complaints committees were set up, service rules were not amended, and the judgment was flouted both by public and private employers. In some cases, employers felt the ambit of the Vishakha Guidelines was inadequately defined; there was confusion concerning which relationships fell under its purview.
In 1999, following the sexual harassment of a student by a professor at MS University, Baroda, Medha Kotwal and other social activists wrote a letter to the Supreme Court, which got converted into a writ petition in 2001. They claimed that the Vishakha Guidelines were not being adequately implemented throughout the country, and the government had failed to ensure implementation. Besides, the guidelines were too general and did not cover the entire gamut of workplace relationships. Many organisations did not bestow the complaints committees with the same powers as existing inquiry committees. Investigations carried out by the inquiry committees were often bound by red-tape and thus cases were long-drawn-out, delaying punishment for the harasser and adding to the victim’s trauma.
The Supreme Court issued interim orders following this writ. Notices were issued to both state and central government bodies to file affidavits stating the extent to which they had implemented the Vishakha Guidelines. The affidavits revealed a dismal picture -- most government offices completely ignored the guidelines. In the few organisations that had attempted implementation, the efforts were nascent, or token. As it turned out, only a handful of functional complaints committees had been set up around the country. The court then asked the petitioners and other organisations to file a rejoinder detailing the changes they wanted in the guidelines. In view of this, the India Centre for Human Rights and Law, Mumbai, along with the Human Rights Law Network, Delhi, managed to access the state replies which were then compiled and sent to all campaign members, initiating a process of discussion and debate. (1) A series of consultations were organised to ensure national participation in strengthening the Vishakha Guidelines.
It was partly due to these efforts that the Supreme Court passed two very significant interim orders in the matter. In the first of these, the court issued an order directed at various professional bodies such as the Bar Council of India, University Grants Commission, Chartered Accountants Association, Medical Council of India, etc, asking them what steps they had taken to incorporate the Vishakha Guidelines. The results of this order are still pending. Secondly, the Supreme Court passed an interim order, on April 26, 2004, clarifying that the investigation and report of the complaints committee would be the final word in a sexual harassment case. In addition, the committee was required to make an annual report on complaints and action taken, to the government.
The Vishakha ruling was meant to be a temporary substitute for legislation. In 1998, the National Commission for Women (NCW) produced a Code of Conduct for the Workplace that clearly codified the requirements of the Vishakha judgment. The code expands the definition of sexual harassment laid out in Vishakha, and clarifies the employer’s responsibility to address sexual harassment in the workplace. In August 2001, the NCW set up a group of civil society activists, and in consultation with these experts and several women’s rights activists, designed a first draft of the Bill. This draft was submitted to the Ministry of Human Resource Development, Department of Women and Child Development, which made amendments to the Bill and, in turn, invited suggestions from the public. The draft was found to be flawed, and in November 2004, a number of organisations working on the issue of sexual harassment met in Mumbai and drafted an alternative Bill.
Some of the primary concerns regarding the Bill in its present form are its shortcomings in dealing with the unorganised sector. There is also some controversy regarding compensation, which, as it stands now, is not part of the draft Bill. The biggest debate, however, revolves around the inclusion of service-takers, or consumers, as beneficiaries of the Bill. Currently, the Bill provides protection to employees who are harassed by a third party, but offers no measures to deal with an employee who harasses a third party. This non-inclusion of sexual harassment of service-takers is hugely problematic, as the issue is especially prevalent at medical and educational institutions. For instance, the Bill does not protect a student from being sexually harassed by a professor, or a patient who has been molested by her doctor. As the harassment is taking place in the workplace of the harasser, performed by a professional within his professional context, it ought to fall under the purview of the NCW Bill. However, since the victim is not an employee of the workplace, she remains unprotected. Harassment of service-takers also occurs between lawyers, the police, bankers, other such professionals and their clients. In all these contexts, there are unequal power dynamics that often insidiously come to fruition as sexual harassment, making it essential for service-takers to be provided protection against sexual harassment in the final Bill. According to a member of Lawyer’s Collective, the civil society organisation instrumental in formulating the draft Bill: “The Bill should also cover women consumers who have to access the services of doctors or lawyers. This means a woman consumer should have a redress machinery she can turn to if she is harassed by a doctor in a clinic or by a lawyer in his chambers.” (2)
However, in a meeting held to discuss the draft Bill, this stance was opposed by the All India Democratic Women’s Alliance (AIDWA), which fears that broadening the scope of the Bill will undermine its effectiveness. They want the Bill to be restricted to the employer-employee framework.(3)
If the Bill is passed by Parliament this year, as the Centre has promised, it will be a watershed in the history of women’s rights in this country. The Vishakha ruling ought to have been a catalyst for defusing power injustices based on gender that run rampant in the workplace. Unfortunately, though, too little has changed.
(Aurina Chatterji is a sociology graduate from McGill University, Canada, where she was involved with the campus Sexual Assault Centre for two years. She currently works at the India Centre for Human Rights and Law, Mumbai, in the Campaign Against Sexual Harassment (CASH) Unit)
- Desai, Mihir, ‘Starting the Battle’, Combat Law, Volume 3, Issue 5, January 2005
- The Telegraph, ‘Women’s Bill Hits Consumer Clause’, October 17, 2005
InfoChange News & Features February 2006