Mar 29, 2023
Mar 29, 2023
by A. Pandey
In 1997, the Supreme Court (SC) took upon itself the task of framing the Vishaka Guidelines. The idea was to evolve an alternative mechanism to fulfill the urgent social need to protect working women from sexual harassment. These guidelines were declared as the law of the land and were binding and enforceable until suitable legislation was enacted. But although over a decade has passed since then, the legislation is yet to be put in place.
Statistics show that one woman is molested every 26 minutes and this refers to the reported cases only. If the unreported cases were to be included, it would be a matter of seconds rather than minutes. Most cases are not reported by victims because of reasons ranging from family and police pressures to the unreasonably long process of gaining justice.
The population of working women in India has grown multifold over the last decade. According to statistics, 60 per cent of women acknowledge that sexual harassment at the work place is rampant and has been accepted as a professional hazard by most women. Yet, the awareness and implementation of the Vishaka Guidelines remains poor. This was also recognised by the SC in a Public Interest Litigation (PIL) filed in the case of Medha Kotwal (2006). The apex court went on to make State Governments, through the Labour Commissioners and Women and Child Departments, responsible for ensuring that all workplaces with 50 per cent and more women on their staff, set up a Complaints Committee (CC).
In reality, however, either the CCs don't exist as an ex-ante mechanism or are set up in an ad-hoc manner. The increasing number of complaints filed in the courts, in the National Commission for Women (NCW) and the State Women's Commissions (SWC), are a testimony to the lack of the proper implementation of the Vishaka Guidelines by the employer and the general ineffectiveness of the CCs.
A RTI application filed with the Labour Commissioner in Maharashtra in 2007 revealed that no concrete measures had been taken by it despite the SC order in the Medha Kotwal case. Another application filed under the Right to Information (RTI) with the Maharashtra State Women Commission revealed that 60 complaints of sexual harassment at the workplace were filed in four months between January 1, 2008 and April 30, 2008.
Most developed nations have recognised sexual harassment at the workplace as a serious abuse, resulting from the exertion of power on the victim by the perpetrator. Therefore sexual harassment, in addition to being a violation of the right to safe working conditions, is also a violation of a person's right to bodily integrity.
As the Protection of Women against Sexual Harassment at Workplace Bill, 2007, is being deliberated and discussed, what is it that women have in terms of relief when employers fail to implement Vishaka Guidelines? This is a difficult question to answer. Yet, in the midst of all the chaos and confusion, the Courts have helped women secure justice, their rights and their dignity.
Take a few landmark judgements that have emerged recently: The Apparel Export Promotion Council v/s A.K. Chopra: AIR 1999 SC 625. This case is the first one where the SC applied the law as laid down under the Vishaka Guidelines. In this case, the SC recognised an important fact. It ruled that 'an attempt to molest' is equally an infringement of a woman's right to dignity at the workplace as a 'successful attempt of molestation'. The SC also recognised that in such cases, evidence and witnesses may not always be forthcoming. Hence, reliance has to be placed on the circumstantial evidence and whether it, in overall terms, inspires the confidence of the judges.
Then there is the Civil Writ Petition No. 8826 of 2004, which came up in the Bombay High Court in a case involving Tata Mettaliks Limited. Here, a lady supervisor was subject to sexual harassment at the hands of the Deputy GM at the plant. The lady sought an inquiry and the Management, with the help of an advocate, conducted an inquiry. The perpetrator was exonerated on the basis of this and the services of the woman concerned was terminated. She challenged her termination in a complaint under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971, which decided in her favour and declared that the employer was guilty of unfair labour practices and granted reinstatement with consequential benefits. However, the Management failed to comply with the order of reinstatement by the order of the Labour Court. The matter was filed in the Bombay High Court which observed that Vishaka Guidelines are a law under Article 141 of the Constitution and that the powers to deal with the complaint of sexual harassment of an employee and inquiry vests with the CC and it cannot be decided by the Management.
The Delhi High Court order in a judgement involving S.K. Mallick, Director of National Academy of Audit and Account (NAAA), is another case in point: Mallick filed a petition before the Delhi High Court after the Central Administrative Tribunal (CAT) refused to stay the departmental proceedings of allegations of sexual harassment against him by a senior woman colleague. Mallick had allegedly entered the room of the woman officer at Shimla in an inebriated condition and misbehaved with her. The woman filed an FIR the next day and also intimated senior officials of Mallick's conduct. This led to a departmental inquiry. Mallick was suspended on the basis of a criminal case pending against him. He then approached the CAT seeking to stay the departmental inquiry. When the CAT refused to stay the departmental proceedings, Mallick approached the Delhi High Court.
The Delhi High Court while dismissing the petition made the following observations in respect of certain key definitions: (I) "Workplace" - The HC noted that in the case of the private sector, it is common for senior officials to run their businesses from their residences with the advancements in information technology. Accordingly, a person can interact or do business with other persons, while located in some other country by means of video conferencing, even while an officer or teacher may work from the accommodation allotted to her or him. Therefore, if an officer indulges in an act of sexual harassment with the employee, it would not be open for him to claim that the act had not been committed at the workplace but at his residence and get away with that argument. (II) "Any woman" - This expression is broad enough to include women of all ages, including women who may be senior in years and status. The HC said this in response to a plea by the accused that that he could not be accused of sexually harassing a senior officer towards whom he was not in position to extend any sort of favor.
The above judgments set important precedents by extending the meaning of workplace, by defining who the affected women are, by delineating the nature of sexual harassment and the role of internal CCs. As the Draft Bill on Protection of Women against Sexual Harassment comes under national scrutiny, these judgments could help provide some much required clarity.
More by : A. Pandey