How Vishaka Guidelines came to be and What is it?
Women harassment has been alive in our society for centuries. Cases of woman harassment take place on a daily basis. A specific portion of these cases are related to harassment of women at workplaces.
In India, prior to 1997, no specific laws existed to address these cases. Such cases were dealt under Indian Penal Code, 1890 Sections 354 (outraging and modesty of a women), 294 (eve teasing), etc. However, a series of events from 1992-1997 forced the Supreme Court to put in place a set of Guidelines to deal with women harassment at workplaces. The judgment of the Supreme Court was passed in a Public Interest Litigation (PIL) filed by four women’s organisations namely Vishaka, Women’s Rehabilitation Group (both in Rajasthan), Jagori and Kali for women (both in Delhi). The PIL was filed in the background of the infamous Bhanwari Devi gang rape case. Bhanwari Devi was a social worker who prevented marriage of a one-year-old girl in 1992 and hence was gang raped as an act of revenge. This heinous crime was committed by a few local Gujjar men as a punishment for her intervention in 1992. During the crime, Bhanwari Devi was in employment of Rajasthan Government’s Women’s Development Programme- which made it a case of harassment at workplace.
In 1997 the Supreme Court Judgment in the PIL case, it marked that there was no such adequate law existing to deal with such cases and to provide for specific protection to women at places of their work. Hence the Supreme Court took the onus upon itself and formulated the so called Vishaka Guidelines for organisations employing 10 or more people that made it legally binding for employers to observe the directions issued and to ensure prevention of sexual harassment of women. According to the Guidelines, there were three primary obligations imposed on institutions that is Prohibition, Prevention and Redressal. As per the Guidelines “sexual harassment is any unwelcomed sexually determined behavior (whether directly or by implication) that includes physical contact and advances, a demand or request for sexual favours, sexually colored remarks, showing pornography, any other unwelcomed physical, verbal or non-verbal conduct of sexual nature”. Preventive steps mentioned were ‘expressing prohibition of sexual harassment at workplace in form of notifications, publications and circulars. It also stated that rules/regulations of different government and public sectors related to conduct should include rules prohibiting sexual harassment and provide for appropriate penalties in case of offences of this nature.
For private sectors, employers should include similar measures for prohibition and penalties under The Industrial Employment (Standing Orders) Act, 1946. The Guidelines stated appropriate work conditions should be provided so as to prevent any hostile environment towards women at workplace. ‘The Guidelines also mentioned criminal proceedings as per IPC or any other law in case of sexual harassment cases. Besides this it, also stated time bound treatment of complaints and establishment of complaints committee headed by a woman and with not less than half of the members as women. Further to avoid any situation of undue pressure from senior levels, the committee should involve a third party such as an NGO or other body familiar to such issues of harassment’. Lastly, the Guidelines stated annual report to be submitted to the government on number of complaints registered, solved, pending and action taken against the complaints and it also called for initiatives to be adopted for workers to raise such harassment issues by creating proper awareness among female employees.
The Vishaka Guidelines became a torch bearer for the formation of the “Sexual Harassment of Women at Workplace (Prevention, Prohibition And Redressal) Act, 2013 (SHW Act). The act is primarily based on Vishaka Guidelines, for example it defines sexual harassment in same terms as in the Guidelines. However, the act broadened the ambit of Vishaka Guidelines with new procedures for complaint, enquiry, and action to be taken. The act mandates all organisations with 10 or more employees, to set up an Internal Complaints Committee with presiding female officer and at least 50% of female members at each office or branch. It defines sexual harassment in much clearer terms and provides protection to all women either working (regular, temporary, ad hoc or daily wage basis) or even visiting any place of work. The act has laid down a time limit of three months from date of incident for lodging a complaint and the ICC can extend this limit if it feels the need to do so. The act ensures all possible and reasonable assistance to the “aggrieved women” whether she is in direct employment or by means of an agent or contractor even if it is beyond the knowledge of principal employer. Further if the women herself cannot lodge a complaint, an heir can do so on behalf of her. Prior to taking any action, the act provides for conciliation only ‘at the request of the aggrieved women to settle the case. If not, then ICC may forward the case to the police under section 509 or can use its own powers to summon, examine and conduct enquiry into matter’. The act provides for action after conformation of the allegations in the form of ‘written apology, reprimand, warning, censure, termination of service, counseling or in the form of financial recovery based on level of pain, suffering and emotional distress caused’. The aggrieved woman or the respondent have been given the option to challenge the report of ICC in a court of law within 90 days. Lastly it provides for adequate punishment for the victim if her complaint is found to be false and malicious intent in found.
Current Phase of MeToo
Recent surveys have reported an increase in number of sexual harassment cases at workplace over the past few years. Pink Ladder, a career enhancement ecosystem for women professionals released its reports which stated that “about 56% of women believe that sexual harassment cases have increased over the years and about 53% of women have been subjected to sexual comments, gestures, jokes at the workplace”. The recent increase in MeToo Movement clearly indicates the rampant cases of sexual harassment. In the past few years number of men belonging to different sectors be it politicians, musicians, celebrities, or even judges have been accused of sexual harassment. For example- The accusation of actress Tanushree Dutta against co-actor Nana Patekar, accusation against the then Chief Justice of India by former junior court assistant, complaint against former TERI chairman R.K. Pachauri, etc. These cases have grown manifold in the past decade with more and more women opening up about their issues. Such cases have been constantly reported even after Vishaka Guidelines. For example- Famous case of 1988 where IAS officer Rupan Deol Bajaj accused senior police officer KPS Gill of harassing her. And the cases have still been on the rise even after SHW Act, 2013. As per the reply of women and child development ministry in July 2018 in parliament, since 2015, about 500 to 600 cases have been filed per year under SHW act with as many as 120 cases being reported in Uttar Pradesh closely followed by Delhi. Other States with a greater number of cases are Madhya Pradesh, Haryana, Rajasthan, etc. These numbers and reports portray the sorry State of affairs even with SHW Act in place.
Causes of increase in sexual harassment cases and steps taken to address these
The recent trend of increasing sexual harassment cases at workplace clearly indicates a systematic failure in the approach to address this issue. Numerous reports and cases show inaction or improper action in cases of reports of sexual harassment. Various reasons can be attributed for the failure to control the ever-expanding cases of sexual harassment. One of the reasons is education. The Indian education System has failed to import value-based education with giving proper focus on respecting all. The ideology of respecting consent or refusal is essential which lacks in society. Education is the primary process for socialization, but it has been unable to teach boys and men to refrain for sexist and unlawful behavior. The major issue here is the mindset of the society which fails to give adequate respect to females. This results in an increase in inappropriate behavior meted out towards women. Further the improper law enforcements and lack of accountability with insensitive approach in cases of sexual harassment aggravates the issue. Even the Vishaka Guidelines and the SHW Act fail to provide legal resolution to cases which had occurred before the enactment of these.
The government has been striving to ensure safety for women at workplace. The Supreme Court’s Vishaka Guidelines and government’s SHW Act or POSH Act (Act along with the Rules) are 2 major steps taken to address this issue. Even the provisions under IPC against sexual harassment provide some protection to victims of harassment. Also, campaigns like Operation Nirbheek in order to improve girl’s safety and security in schools have been adopted. The proactive judiciary has also adopted steps like formation of Gender Sensation and Internal Complaints Committee (GSICC) to curb sexual harassment.
Factors which hinder efficiency of POSH Act
The POSH Act suffers from certain lacunae like it is not holistic in its approach as its mentioned time limit of 3 months is too short and further it does not account for cases which took place before its enactment. On comparing punishments of ICC and IPC, the ICC’s approach is quite lenient compared to much stricter criminal prosecution under IPC. However, IPC cases are known to be delayed and go on for years. This delay results in loss of finances and causes stress for the victim. Also, the ICC cases sometimes fail to deliver justice as the accused have already left the institution and hence do not come under POSH’s ambit. Many states, public sector and private sector employers have not amended their service rules. Further a single set of rules or a single act cannot be expected to be fruitful in achieving justice in all types of cases. A number of false accusation cases have come up due to loopholes in the act. Lastly, the POSH Act fails to provide a solution to large section of women as they are unaware of their rights or they do not prefer to raise their voice due to various causes like fear of society, how their accusation will be accepted, whether or not they will get justice etc.
Modifications needed for improvement of the law
The POSH Act should be interlinked with IPC provisions and a holistic approach should be adopted. More importantly there is urgent need of creating awareness, organizing sensitization workshops etc. so that female employees are encouraged to raise voice against any form of harassment. Another important aspect is that government should strive to deliver justice in a fast and fair manner and any sort of delays must be penalized. Also, the composition and powers of ICC must be so modified that members of ICC are able to fairly judge cases particularly those involving high-ranking officials in which there are chances of misuse of power. Further POSH Act should include measures to address issues involving bad conduct even if it is outside the workplace and is connected to the employment. A good example is Tamil Nadu’s approach of putting in place a special criminal law that is ‘Tamil Nadu Prohibition of Harassment of Women Act,1988’ to deal with SHW offences holistically delinking them from employment rules. Lastly, government must adopt regular feedback measures and strictly monitor such cases so as to ensure efficient disposal of these cases.
The Vishaka Guidelines and POSH Act are impressive but the act needs further modifications to encompass the aforesaid matters. Also, education system of India has a crucial role to play and the curriculum of educational institutes must include workshops and awareness programs to educate all students to become responsible and respect consent and refusal equally. Steps must be adopted to make all women aware about their rights and motivate them to raise their voice against harassment. Sexual harassment is a chronic ailment and it needs to be eliminated from the base so that a proper and friendly environment can be setup at workplace. POSH Act will prove to be a key factor and will become the instrument to eradicate the rampant sexual harassment cases.