Supreme Court on sexual harassment of women at work place
- Part 1 -

A Romen Kumar Singh *

Supreme Court : Highest seat of justice in India :: Pix - TSE

"Today, not tomorrow, we men and women must declare war on injustice to woman kind by demand for real partnership and special provisions. Women are not alone. Men must share the concern because it is a battle against the Socio-economic exploitation".
-> JUSTICE KRISHNA IYER.

The Indian woman is still unfree, exploited, sold as commodity, liquidated without the law and held hostage by an exploitative combination. Gender injustice to the weaker sex is the disturbing concern of all Indians, men and women, politicians, professionals and people with a social conscience, and we must battle for the cause of Freedom and Development of feminine sector as an integral and strategic part of the struggle for human justice. No society can be free, fair or just until its women enjoy freedom and justice and opportunity for unfoldment of their full potential. Can son boast he is no slave when mother weeps in bondage:

2. Constitutional imperatives of equality of status and opportunity, Social justice, dignity and personality for the Indian woman remain paper rhetoric and fatuously futuristic. So long as raw realities of life contradict with bleeding wounds and burnt flesh, daily humiliation on the road, inside the bus, public places etc. and legal discrimination, the fighting creed writ into the Founding Deed. Life is the touch stone of law, not printed articles in Paramount charter. The myth is that equality of the sexes is guaranteed by the state. The truth is that inequality and indignity VIS-À-VIS Indian Sisterhood are writ so large as to mar veracity of Fundamental Rights.

Despite laying down of the Guide Lines by the Supreme Court to prevent sexual Harassment of women at work place the belief of the judiciary has not been fully achieved. The Vishaka judgement, (Vishaka & others V. State of Rajasthan, (1997)6 SCC 241; AIR 1997 S.C. 3011) came on 13.8.1997. Yet, 15 years after the guidelines were laid down by the Supreme Court for the prevention and redressal of Sexual harassment and their due compliance under Article 141 of the constitution of India until such time appropriate legislation was enacted by the Parliament, many women still struggle to have their most basic rights protected at workplaces. The statutory Law is not in place. The protection of women Against sexual Harassment at Work Place Bill, 2010 is still pending in Parliament though Lok Sabha is said to have passed that Bill in the first week of September, 2012. The belief of the Constitution Framers in fairness and justice for women is yet to be fully achieved at the workplace in the country.

3. NEED OF REVISED AND APPROPRIATE NEW LAWS.

In Medha Katwal Lele V. Union of India, A.I.R. 2013 S.C. 93 a bench of three judges of the Supreme Court held at Page 101 Para 15 as below:

As the largest democracy in the world, we have to combat violence against women. We are of the considered view that the existing laws, if necessary, be revised and appropriate new laws be enacted by Parliament and the State Legislatures to protect women from any form of indecency indignity and disrespect at all places (in their homes as well as outside), prevent all forms of violence-domestic violence, Sexual assault, Sexual harassment at the workplace, etc. – and provide new initiatives for education and advancement of women and girls in all spheres of life. After all they have limitless potential. Lip service, hollow statements and inert and inadequate laws with sloppy enforcement are not enough for true and genuine upliftment of our half most precious population – the women.

4. DIRECTIONS ISSUED BY SUPREME COURT TO FORM ADEQUATE NUMBER OF COMPLAINTS COMMITTEES AND AMEND CONDUCT RULES.

The Supreme Court in the case (Supra) at Page-101 Para 16 held as below:-

"In what we have discussed above, we are of the considered view that guidelines in Vishaka should not remain symbolic and the following further directions are necessary until legislative enactment on the subject is in place.

(i) The States and Union Territories which have not yet carried out adequate and appropriate amendments in their respective Civil Services Conduct Rules (By whatever name these Rules are called) shall do so within two months from to-day by providing that the report of the Complaints Committee shall be deemed to be an inquiry report in a disciplinary action under such Civil Service Conduct Rules. In other words, the disciplinary authority shall treat the report / findings etc. of the Complaints Committee as the findings in a disciplinary inquiry against the delinquent employee and shall act on such report accordingly. The findings and report of the Complaints Committee shall not be treated as a mere preliminary investigation or inquiry leading to a disciplinary action but shall be treated as a finding / report in an inquiry into the misconduct of the delinquent.

(ii) The states and Union Territories which have not carried out amendments in the Industrial Employment (standing orders) Rules shall now carry out amendments on the same lines as noted above in clause (i) within two months.

(iii) The States and Union Territories shall form adequate number of Complaints Committee so as to ensure that they function at Taluka level, District level and State level. Those States and/or Union Territories which have formed only one Committee for the entire State shall now formed adequate number of Complaints Committees within two months from to-day. Each of such complaints Committees shall be headed by a woman and as far as possible in such committees and independent member shall be associated.

(iv) The State functionaries and private and public sector undertakings/ organisations/bodies/institutions etc. shall put in place sufficient mechanism to ensure full implementation of the Vishaka Guidelines and further provide that if the alleged harasser is found guilty, the complainant – victim is not forced to work with/under such harasser and where appropriate and possible the alleged harasser should be transferred. Further provision should be made that harassment and intimidation of witnesses and the complainants shall be met with severe disciplinary action.

(v) The Bar Council of India shall ensure that all bar associations in the country and persons registered with the State Bar Councils follow the Vishaka Guidelines. Similarly, Medical Council of India, Council of Architectures Institute of Charterred Accountants, Institute of Company Secretaries and other Statutory Institutes shall ensure that the organisations, bodies, associations, institutions and persons registered/affiliated with them follow the guidelines laid down by Vishaka. To achieve this, necessary instructions/circulars shall be issued by all the statutory bodies such as Bar Council of India, Medical Council of India, Council of architecture, Institute of Company Secretaries within two months from today. On receipt of any complaint of sexual harassment at any of the places referred to above the same shall be dealt with by statutory bodies in accordance with the Vishaka Guidelines and the guidelines in the present order.

5. AGGRIEVED PERSONS CAN APPROACH THE RESPECTIVE HIGH COURTS IN CASE OF NON-COMPLIANCE OR NON-ADHERENCE TO GUIDELINES.

The Supreme Court in the case (Supra) at Para 17 held: "We are of the view that if there is any non-compliance or non-adherence to the Vishaka guidelines, orders of this court following Vishaka and above directions, it will be open to the aggrieved persons to approach the respective High Courts. The High Court of such State would be in better position to effectively consider the grievances raised in that regard.

VISHAKA GUIDELINES

In Vishaka and others v. State of Rajasthan, (1997)6 SCC 241 a bench of 3 Judges has laid down the following guidelines and norms at Page 252 Para 17 as below:

17. The Guide Lines and Norms prescribed herein are as under:

Having regard to the definition of "human rights" in Section 2(d) of the Protection of Human Rights Act, 1993, taking note of the fact that the present civil and penal laws in India do not adequately provide for specific protection from sexual harassment in work places and that enactment of such legislation will take considerable time, it is necessary and expedient for employers in work places as well as other responsible persons or institutions to observe certain guidelines to ensure the prevention of Sexual harassment of women.

1. DUTY OF THE EMPLOYER OR OTHER RESPONSIBLE PERSONS IN WORK PLACES AND OTHER INSTITUTIONS.

It shall be the duty of the employer or other responsible persons in workplaces or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolutions settlement or prosecution of acts of sexual harassment by taking all steps required.

2. DEFINITION: For this purpose, sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as:

(a) physical contact and advances;
(b) a demand or request for sexual favours;
(c) sexually – coloured remarks;
(d) showing pornography;
(e) any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

Where any of these acts is committed in circumstances whereunder the victim of such conduct has a reasonable apprehension that in relation to be victim's employment or work whether she is drawing salary, or honorarium or voluntary, whether in government, public or private enterprise such conduct can be humiliating and may constitute a health and safety problem. It is discriminatory for instance when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work including recruiting or promotion or when it creates a hostile work environment. Adverse conduct in question may be visited if the victim does not consent to the conduct in question or raises any objection thereto.

To be continued....