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Impact of the Vishaka Judgment

By Albertina Almeida

While a legislation on sexual harassment seems imminent, the Vishaka Judgment on sexual harassment at the workplace has, over the last 15 years, leapt out of the statute books and deeply influenced policy and practice in institutions and offices

Say ‘Vishaka’ and the word ‘Judgment’ will follow. Few know that Vishaka is actually the name of an organisation which, along with other organisations, rallied for special measures to deal with sexual harassment inflicted in the course of employment.

Fifteen years ago, a writ petition by Vishaka and others was filed following several cases of sexual harassment at the workplace. It was clear that the criminal law neither recognised sexual harassment in all forms as an offence, nor provided an efficacious remedy to deal with the problem.

The outcome was the landmark Vishaka Judgment which finds reference not just in  the work of women’s groups but also among various sections of society – trade unions, workers, students. The judgment has become the foundation for orientation/training programmes for government officers and staff, for judiciary, and for complaints committees constituted in accordance with the Vishaka Judgment. The judgment is the reference point in law classes and law journals across the country, not just as information, but in discussions that centre around various aspects that its pronouncement threw up.

Unlike most judgments which largely adorn law journals and are at best references for  similar cases, this judgment has leapt out of the courtroom into the public domain both because of its nature and because of the determination of women’s groups to take the case guidelines to their enactment in real life.

What new course in jurisprudence did the Supreme Court chart via this judgment? When the legislature failed to move in with a domestic law that would meet the imperatives of the Constitution of India and of India’s ratification of conventions such as the Convention for the Elimination of All Forms of Discrimination Against Women (CEDAW), the apex court pronounced guidelines that would hold till a legislation was passed. That hour of the legislation is, it seems, fast approaching. The Protection of Women from Sexual Harassment at the Workplace Bill was tabled in the Lok Sabha in December 2010 and was thereafter referred to the Parliamentary Committee on Human Resource Development headed by MP Oscar Fernandes for deeper examination. The committee invited suggestions from different stakeholders and the public to factor in various concerns. Several representations were made to the committee and it is expected to submit its report soon.

The judgment recognised sexual harassment as a violation of fundamental rights of women to equality, non-discrimination, the practice of occupation, trade, business or profession of one’s choice, and to life and liberty. The court noted that the fundamental right to carry on any occupation, trade or profession depends on the availability of a “safe” working environment. The judgement thus clearly veered the  perception of sexual harassment at the workplace towards viewing it as a violation of human rights or fundamental rights.

The judgment also drew attention to the responsibility of the state, as enshrined in the Constitution, to make provision for securing just and humane conditions of work. As it did so, it cast a responsibility on every employer to ensure that the workplace is free of sexual harassment.

The Supreme Court has since improved on its judgment with the Medha Kotwal Lele case. The complaints committee now has the status of an inquiring authority. In providing legal expertise in this case -- which arose out of a complaint of sexual harassment of a PhD student by her guide -- and in introducing a helpline called Madhyam, the India Centre for Human Rights and Law (ICHRL), Mumbai, has played a pioneering role. Another notable judgment is the Chairman Navodaya Vidyalaya Samiti, Ministry of HRD, Shastri Bhavan, New Delhi and others v/s Dr T Murugesan and others, wherein the Supreme Court reiterated that employers can have only one stage action. After receiving the report of the complaints committee constituted as per the Vishaka guidelines, the employers must proceed to impose punishment on the guilty employee. The court pointed out that the woman should not have to go through secondary harassment by having to attend another inquiry by the inquiry officer as per the service rules.

There have also been a slew of judgments by High Courts in different parts of the country in response to petitions about non-implementation of the judgment. The courts have held that the complaints committees as envisaged in the Vishaka Judgment must be constituted, the employers can take action only on receipt of the report of the complaints committee, that the labour court can interfere with the findings of the complaints committee only if the inquiry was not fair and proper or its findings are perverse, that inquiry proceedings do not require to be deferred pending the criminal case filed by the complainant. This year, the Madras High Court upheld the transfer of a person found guilty of sexual harassment, when the same was challenged by the guilty person as being illegal and violative of principles of natural justice. The Madurai Bench of the Madras High Court reinforced the point that the workplace must have a complaints committee and it is this committee alone that has to inquire into complaints of sexual harassment at the workplace and other inquiries are not acceptable. The High Court of Bombay in Goa held that a report of an inquiry prepared by the chairperson of a complaints committee alone is to be treated as null and void, clearly explaining that matters of safety and dignity of women at workplaces cannot be left to the individual opinion of a single member of a committee, however highly placed.

“We could successfully mainstream the topic of sexual harassment at the workplace in the course curriculum of the Indian Institute of Public Administration (IIPA) at Mantralaya. IIPA has been specially organising trainings for state government employees across Maharashtra,” says Anagha Sarpotdar, who worked then with the ICHRL, and is presently an independent consultant and member of several complaints committees including the Central Complaints Committee of the Government of Maharashtra. Sarpotdar is clear that the orientation or training cannot be a cut and dry toolkit. A substantial gender sensitisation component is required. Else, a case can be lost in technicalities devoid of sensitivity to the complainant, which is the essence of the Vishaka Judgment. This approach is also underlined by Dr Sarasu Thomas, faculty at the National Law School of India, Bangalore, who says that related readings on feminist jurisprudence and masculinities strengthen an understanding of gender and sexual harassment, eg readings on whether women and men doing the same course/same work bear different burdens.

Films like Ab Khamoshi Kyon produced by India Centre for Human Rights and Law, and posters produced by various women’s groups and socio-legal organisations form part of the repertoire of materials used to generate discussions on the issue of sexual harassment at the workplace. There are also films which explode myths about sexual harassment –myths such as the one that it happens to women who are scantily dressed. The four-minute documentary Jor Se Bol (Shout Aloud) produced by Akshara on sexual harassment is a useful resource. In fact, Bollywood also seems to have joined the bandwagon with the release in August 2010 of a Hindi film Hello Darling.

There are other innovative ways in which local organisations have been reaching out to all kinds of informal workplaces. For instance, Saad Aangan in Goa has been conducting discussion sessions/mini-workshops in educational institutions where, through  customised skits and a long educative painted banner, participants are drawn into a conversation that enables them to open up and speak out and understand the issue.

Persons from organisations well-versed with issues of sexual harassment in employment have been appointed as third party representatives with several complaints committees within government establishments and also large private establishments. Lawyers seized of the issue, particularly labour lawyers, have been handling the issue at various levels. Says Advocate Mini Mathew, “Women are faced with transfers/terminations because they have complained about sexual harassment at the workplace. The challenge also lies in seeing that the Vishakha Judgment is not subverted with such unfair labour practices.”

Still others have been involved with draft sexual harassment policies of academic institutions, government offices and companies. Importantly, the involvement of concerned activists has brought a whiff of fresh air into policymaking and systems. Advocate Vrinda Grover, who drafted the policy against sexual harassment of women for the Indira Gandhi National Open University (IGNOU), points out that the policy is available on the IGNOU website, a positive sign of transparency.  Apart from setting out the rules and procedures to be followed by the complaints committees and the responsibilities of the institution, as also the core sensitivities expected, this policy drives home the seriousness with which sexual harassment is viewed, where sanctions can include the full range of disciplinary action including dismissal from the university. It is also significant for its effort to decentralise the complaints redressal mechanism to ensure access at various levels. The National Law School at Bangalore, with Dr Sarasu Thomas as chairperson of its complaints committee, has incorporated the subject as a module in outreach legal literacy programmes. It also has a sexual harassment policy advisor who coordinates sensitisation programmes with student facilitators, usually in the beginning of the academic year.

NGOs are not exempt from the requirement of policies and mechanisms to prevent and deal with sexual harassment – more so when several NGOs today have acquired the characteristics and dimensions of corporations.

The Vishaka Judgment also prompted many studies and surveys that looked at measures to deal with sexual harassment. Prominent among these were those of the National Commission for Women, women’s organisations Sakshiin Delhi and Hengasarra HakinaSangha in Bangalore which looked at the prevalence of sexual harassment and knowledge and implementation of the court guidelines. In 2000 there followed another series of significant studies about current perceptions of sexual harassment at the workplace and the measures being taken or not taken. A study on sexual harassment of women working in the health sector by Paramita Chaudhuri of Sanhita, Kolkata, acknowledged that the Vishaka Judgment Guidelines highlighted the need for appropriate implementation mechanisms that recognise the obstacles posed by power imbalances and gender norms in empowering women to make a formal complaint on the one hand and in receiving appropriate redress on the other.

UN organisations like UNIFEM backed the initiative of Confederation of Indian Industries (CII) on prevention of sexual harassment at the workplace which included development of a manual titled Enabling Environment: A Manual for Effective and Engendered Workplaces. Industry has however been slow in taking it up.

The government’s version of the Sexual Harassment Bill is being circulated along with several other drafts. The National Commission for Women organised a consultation, as did the Human Rights Law Network and Lawyers Collective, with Oxfam India and other organisations having consultations to generate discussion on the proposed law.

Some key imperatives that are emerging from various discussions are: the need to bring the large group of women in the informal sector -- including domestic workers – within the ambit of the law, comfortable sexual harassment reporting procedures, the need for the complaints committee to understand the power dynamics of the workplace, accountable monitoring and reporting mechanisms regarding implementation of the law that will be mainstreamed as much into the grievance redressal mechanisms as any other service not provided, and provision of an adequate budget for the implementation of the proposed law.  

(Albertina Almeida is a Goa-based lawyer and human rights activist and has been involved with complaints committees to inquire into cases and draft their policy, and has also participated in several local and national deliberations on the subject)

Infochange News & Features, November 2011