Guidelines on Sexual Harassment at Workplace to a far reaching Legislation

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In 1997, India witnesses one of the appalling incidents where a social worker in State of Rajasthan was harshly gang raped at the workplace. This ruthless incident raised a number of legal issues and realized the lack of social legislation or legal principles to overcome the worsening conditions of women at their workplace. The social activists and NGOs joined hands together to file a writ petition before the Hon’ble Supreme Court to find appropriate measures to realize the correct interpretation of the term ‘gender equality’ and to prevent sexual harassment of women workers in the workplace. The Public Interest Litigation was filed to enforce the fundamental rights of women workers as per Article 14, 19 and 21 of the Constitution of India. Since the incidents of similar nature were uncommon in those days and there was a critical need to formulate an effectual alternative instrument in the absence of legislative actions, the Supreme Court considered the petition seriously and initiated to conclude the proceedings very quickly.

The landmark judgment was delivered on August 13, 1997 by Chief Justice of India, Sujatha V Manohar and Justice B N Kirpal where the bench pointed out that every incidents obviously violates the fundamental rights under Articles, 14, 15, 19 (1)(g) and 21 of the Constitution of India. Hence, such violations magnetize the remedy under Article 32 for enforcing the fundamental rights of women. In consonance with this view, the Supreme Court considered the writ of Mandamus and stated that the fundamental right under Article 19(1) (g) which provides to carry on any occupation, trade or profession rests on the accessibility of safe and secure working conditions. The right to life under Article 21 means to live with human dignity. The primarily responsibility to frame suitable legislations to restrict sexual harassment of women at workplace remains with the legislature and executive. In the absence of such legislation, the judiciary can fill the vacuum to attain the ends of justice.

In the light of these views, the Supreme Court relied on Article 42 of the Constitution of India which provides for just and humane conditions of work and maternal relief, Article 51A (e) which obliges the citizens to renounce practices derogatory to the dignity of women, Article 51 which strives to promote international peace and security and foster respect for international law and treaty obligations in the dealings for international law and treaty obligations and Article 253 which necessitates the state to create legislations for giving effect to international agreement. The Court referred to the Constitutional provisions of international law for the reason that International Conventions and norms are important to construe the guarantee of gender equality, right to work with human dignity and protection against sexual harassment. Therefore, the Court focused on The Convention on the Elimination of All Forms of Discrimination against Women which emphatically recommends the State Parties to take measures to prevent sexual harassment at work place and ensure just and humane conditions of work. To fill the gap in the legislation and to comply with international norms the Supreme Court iterated a set of guidelines which became one of the landmarks of the judicial system in India. The Hon’ble Apex Court imposed duty on the employer in work places and other organizations to prevent the acts of sexual harassment. It provided an authoritative definition of sexual harassment, stated preventive steps to prohibit sexual harassment, criminal proceedings against the accused, disciplinary action in case of misconduct in employment, complaint mechanisms for victims, complaint committee, workers initiative, awareness to women employees etc.

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Moreover in 1999, the similar case was brought before the Supreme Court in Apparel Export Promotion Council v A.K. Chopra where the Apex Court pointed on to the conclusion reached in Vishaka Case. The Apex Court held that “In a case involving charge of sexual harassment or attempt to sexually molest, the courts are required to examine the broader probabilities of a case and not get swayed by insignificant discrepancies or narrow technicalities or the dictionary meaning of the expression molestation”. In G. Pushkala vs High Court of Judicature (2007) the Madras High Court where Deputy Registrar of a Tribunal was asked to retire compulsorily from service for sexually harassing the Delinquent Officer. The Orissa High Court in Miss Shantilata Pattanaik v The Next Question Is, As to What (2012) dealt with the issues on sexual harassment of a woman at work place and consequently dismissed her from service. Here, the Court directed M/s Swaminathan Research Foundation to provide her all the arrears of salary and allowances. In this regard it is pertinent to note the decision of Kerala High Court in P.K. Puthuppan, President v K.S. Girija (2008) where the Court issued directions to all Co-operative Societies in the State of Kerala and all private establishments to comply with the guidelines under Vishaka Case. There are many more decisions to be relied in which the Courts emphatically stressed on the effective implementation of the guidelines in the landmark case of Vishaka v. State of Rajasthan.

The decision in Vishaka case though made several talks in the legal and judicial system, it took a long way to initiate Sexual Harassment at Workplace Bill in 2012. As a consequence the Parliament enacted The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 that defines sexual harassment as provided under Vishaka Case. In the same year rules were framed under the Act of 2013. The Act provides that the protection against sexual harassment as well as the right to work with human dignity is the international norm under human rights and other international legal instruments like the Convention on the Elimination of all Forms of Discrimination against Women, 1993. The Act further provides for redressal mechanism of complaints and provides safeguards against fake and malevolent charges. Under the Act, workplace includes organizations, branch units, offices, departments, hospitals, educational institutions, sports complex and many more.

It is fundamental to note that the Parliament has also taken interest to amend the Indian Penal Code by enacting Criminal Law (Amendment) Act in 2013 which added Section 354 that describes sexual harassment and the penalties to be given to the person accused of the offence. The Act prescribes imprisonment from one year up to three years and the employers are directed to report the offence of sexual harassment on getting information. In the words of Vrinda Grover, lawyer and social activist, “I hope the Bill does not have provisions for penalizing the complainant for false complaints. This is the most under-reported crime. Such provision will deter a woman to come forward and complain”. The Action Aid campaigner for women’s right Zakia Soman has pointed out that “it helps to have a law and we welcome it, but the crux will lie in its implementation once it is enacted”.

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The sexual harassment of women at workplace has been under discussion in national and international level since long. The issue of sexual harassment at the workplace has supposed to be of grave ratio, with a spectacular increase in the number of litigants. Astonishingly, the cases do not come into the notice of the concerned authorities even though many international human rights movements are pioneered for women have enhanced. The 2013 enactment aims to prevent the violence against women at workplaces. But the act will have to travel an extended path to reach the goal by opening up top-down mechanisms by the Government and efforts by NGOs and Women’s Forum.