Evolution of Sexual Harassment Act
Sritaja Mandala, Student, Pendekanti Law College
“A woman is like a tea bag you never know how strong she is until she gets in hot water.”
In spite of women being self-dependent and holding good positions, they do face harassment, inequity and injustice even in today’s modern era. Such conditions of women prevail in the work places where women become victims of their employers in spite of their right to work with dignity which is a universally recognised basic human right.
Maya Angelou, the famous poet, had said, “Each time a woman stands for herself, she stands for all women”. And this was one of those judgements which changed the course for women in India. Vishaka case of sexual harassment at workplace is a case of landmark judgement by Supreme Court of India on protection of women against sexual harassment faced at workplace. It is a landmark case because first time ever it was officially recognized at such a high level of need for laws against sexual harassment and laying down of guidelines of sexual harassment of working woman. They were superseded in 2013 by the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
The verdict in this case was fought to provide justice to one woman and continue to bring hope to several women facing circumstances that undermine their dignity and their fundamental right to equality. And as India has its #Me Too moment, here's a look at the laws.
Bhanwari Devi was a social worker in a programme initiated by the state government of Rajasthan aiming to curb the evil of Child Marriage. Amidst, the protest to stop a child marriage in one Ramakant Gujjar’s family Bhanwari Devi tried her best to stop that marriage. However, the marriage was successful in its completion even though widespread protest. In 1992, to seek vengeance upon her, Ramakant Gujjar along with his 5 men gang raped her in front of her husband. The police department at first tried to dissuade them on filing the case on one pretext or other but to her determination; she lodged a complaint against the accused. They were however, subjected to harsh cruelty by the female police attendants even to the extent that for procuring evidence her lehenga was demanded from her and she was left with nothing but her husband’s blood – stained dhoti. Adding to their misery, their request to spend the night in the police station was also refused.
The trial court acquitted the accused but she didn’t lose hope and seeing her determination all female social workers gave their support. They all filed a Public Interest Litigation (PIL) in Supreme Court of India under Articles 14, 19 and 21 of the Constitution of India in view of the prevailing climate in which the violation of these rights is not uncommon. The apex court was called upon to frame guidelines for preventing Sexual Harassment at Workplace.
Till 1997 even after India’s independence of 50 years there was hardly any law to safeguard sexual harassment of working women. The only way was to lodge a complaint was under Section-354 of the Indian Penal Code,1860 which deals with Criminal assault of women to outrage women's modesty and Section-509 which punishes an individual/individuals for using a word, gesture or act intended to insult the modesty of a woman. This case brought to the attention Of Supreme Court to formulate necessary measures so as to keep a check on sexual harassment of working women. So they came up with The Vishaka Guidelines which were a set of procedural guidelines for use in India in cases of sexual harassment. The guidelines the SC issued in 1997, which came to be known as the Vishaka Guidelines, were to be ‘strictly observed in all workplaces’ and were binding and enforceable in law.
The judgement was given by former Chief Justice JS VERMA on behalf of Justice Sujata Manohar and Justice BN kirpal, on a writ petition which was filed by different NGO’s. The court observed that it is fundamental right of functioning woman under Article 14, 19(1) (g), and 21 of the constitution to carry on any work, trade or profession but it should be ensured that employer should provide a safe working environment at work place.
The Supreme Court ruled that at all workplace there should be a sexual code and there should be a proper mechanism to enforce cases, which fall under the ambit of this sexual harassment code. The main purpose of this is to gender equality and to avoid discrimination for women at the workplace. The court in lack of any enacted commandment was called upon to deliver for effective enforcement of basic human rights of gender equality and prevention against sexual harassment.
GUIDELINES LAID DOWN IN THIS CASE
The Supreme Court after realizing the need to lay down legislation gave guidelines while commuting them with International Convention and Law.
Vishaka Guidelines were the foundation of the law we now have that addresses workplace sexual harassment. It had several significant provisions. Basically it gave twelve guidelines to be followed in different areas and field of law, even when a new law is to be constituted and then gave an idea that interprets as any violation will lead to conviction. The guidelines were laid down on the basis of Sc. 2(d) of the Protection of Human Rights Act, 1993.
FALL OUT OF THE JUDGEMENT
Vishaka's judgment was delivered in 1997 and for six years after that no efforts were made in the direction of enacting a law. So the guidelines continued to be the law required to be followed across the country. Very few complaints committees were set up, service rules were not amended and the judgment was widely disregarded both by public and private employers.
1. But one of the fall out of the judgment was that many civil society organizations became aware of it and started to publicise it and pushed for its implementation. Around the same time many women who were being sexually harassed started breaking their silence and started demanding action from the employers. In fact a number of these cases arose from university and college campuses. The response of the employers by and large was to sweep such cases under the carpet and at times even to victimize the women. But one could still see an increasing fervour of protest. The media also started giving important space and time to this issue.
One such case happened in the M.S. University at Baroda where a student was sexually harassed by her professor. Her protests led to victimization and certain women’s organizations wrote protest letters to the Chief Justice of India. The letters were converted into a Writ Petition and the Court started supervising the implementation of Vishaka's guidelines. Notices were issued to the Central Government, all State Governments and the Union Territories asking them to report to the Supreme Court the measures taken by them for complying with the Vishaka Guidelines. The Governments filed Affidavits .But what this did was to at least trigger a flurry of activities at the Central Government and the State Government level. Many of the service rules were amended to bring in sexual harassment as a specific head of misconduct. In many states the Employment Standing Orders Act which apply to private employers were similarly amended. Committees were set up in various public sector organizations. University Grants Commission sent a letter to the Universities asking them to set up committees.
The Supreme Court on the other hand continued monitoring the progress and issued notices to even professional bodies. Though things were moving the changes were essentially cosmetic. Most of the private employers had not set up any committees and those public sector organizations where committees were set up they did not function effectively.
2. Sexual Harassment of Women at Workplace (Prevention, Prohibition and
Redressal) Act, 2013:
It took the government seventeen years to pass the law against harassment. The Act came into force from 9 December 2013. This statute superseded the Vishaka Guidelines for prevention of sexual harassment introduced by the Supreme Court of India.
The enactment of this Act has been a bit of relief for women professionals and workers across India. Companies have shifted from turning a blind eye towards such issues to addressing them, and taking appropriate steps before things escalate.
Prior to the formation of the Act, there was a need for a strict law. Now, In spite of the Act, and the stringent rules, are the necessary actions being taken place? Few Companies and certain organizations have set up the internal complaints committees but how many schools, colleges or the hospitals have set up the committees where there’s wide scope for such offences.
The experience, so far, has been that whenever there is a complaint against a member of a company’s senior management and the IC member is hesitant to conduct a fair enquiry or scared to hold the responsible guilty, it creates practical difficulties as to how one deals with the complaint. In many cases, it raises doubts about the impartiality/objectivity of IC members.
The Act does not satisfactorily address accountability. Notably, it does not specify who is in charge of ensuring that workplaces comply with the Act, and who can be held responsible if its provisions are not followed.
So there’s a need of the organs of democracy to execute the laws and properly implement them. Complete enforcement of these law and appropriate mechanism will bring a radical change in the society as well address the solution.
Undoubtedly, the guidelines and norms framed by the Hon'ble Supreme Court in Vishaka Judgment are fountainhead of the Act. With the passage of time, it was felt that guidelines and norms are not sufficient to deal with the incidents of sexual harassment of women at workplaces and a strong piece of legislation is the need of the hour and accordingly the Act was enacted in 2013. The Act went one step ahead and included various issues which remained unaddressed in the past. Even women have come forward and started addressing their grief as in case of the #Metoo moment, due to which the offenders have been dropped down from their respective positions which is a sign of progress of course for women in India.