Events & Issues
New
Delhi, 18 May 2018
Sexual
Harassment
VISHAKA JUDGEMENT FROZEN
By Dr. S. Saraswathi
(Former Director,
ICSSR, New Delhi)
The Supreme Court has
asked Chief Justices of all High Courts in the country to set up within two
months anti-sexual harassment committees at all High Courts and District courts
as directed in the 20-year-old verdict in the Vishaka case against the Government
of Rajasthan and in accordance with the Sexual Harassment of Women at Workplace
(Prevention, Prohibition and Redressal) Act of 2013.
It was dealing with a
complaint by a woman advocate of alleged manhandling by fellow advocates at the
Tis Hazari Court in Delhi for attempting to attend court when lawyers were on
strike on 4th May. The apex court wants prompt action and has hinted at Suo
motu action if the committees are not constituted.
Sexual harassment has
suddenly become the topic of the day since a senior choreographer made a rather
shocking statement about prevalence of “casting couch” in Bollywood. The topic,
shunned as taboo for open discussion in our country and incidents suppressed by
the victims fearing shame and stigma for no fault on their part, has emerged as
a serious problem requiring effective solution.
The matter could have
lost its significance and ended there but for Congress MP, Renuka Chowdhuri’s
more shocking comment on the “bitter truth” that no workplace in India is immune
from sexual harassment -- not even Parliament. She later amended her statement
by pointing out that politics is most transparent and includes a redressal
cell. This has reopened the question of workplace safety for women in India
among various problems of working women. It has triggered a kind of a “Me Too”
movement opening a can of worms hidden in workplaces.
It was in the 1990s,
the problem of sexual harassment at workplaces received attention after the
incident of rape reported by the chairman of the Women’s Development Programme
in Rajasthan for preventing a child marriage. Rajasthan court did not consider
rape as a serious crime and a Women’s Right Group, Vishaka filed a PIL in the
Supreme Court. It opened a new era of women’s safety in the workplace at least
as the law and guiding principles.
In 1997, the Supreme
Court recognised sexual harassment at the workplace as a violation of human
rights. It had also issued guidelines on how establishments should set up
mechanisms to deal with such offences. It defined sexual harassment, laid down
the duties of employers to ensure that work atmosphere was not hostile for
women, barred victimisation of complainants and witnesses, and provided standing
orders pending a Central legislation in the matter. Known as Vishaka
Guidelines, these were in conformity with international law and the resolutions
of the Convention on the Elimination of All Forms of Discrimination Against
Women. But, these did not become rules or evoke compliance.
In December 2013, the
Sexual Harassment of Women at Workplace (Prevention, Prohibition, and
Redressal) Act was adopted by Indian parliament. Under this, the employer of
any organisation that employs more than 10 women should appoint an Internal
Complaints Committee with at least 50 per cent women members composed of a
senior woman employee, two other employees, and a social worker to hear
complaints. Failure to form the committee carries a penalty up to Rs. 50,000
for the first offence and double that amount for repeat offence.
Where such a
committee is not constituted, and where the complaint is against the employer
himself, the District Magistrate is authorised to set up a panel drawn from
social workers and NGOs to deal with the complaints. Government has also to set
up Local Complaints Committee at district level.
However, even the
legislation has not been taken seriously. The National Commission for Women
reported in 2014 that one-third of Indian corporations and one-fourth of global
companies surveyed in the country were not implementing the 2013 Act. A big
increase in the number of sexual harassment cases at workplaces, more than
double the number in the previous year, was noted in 2014.
Between 2014 and
2017, a total of 1971 cases of sexual harassment of women at workplace were
registered amounting to one case per day on average. Cases reported increased
by 45 per cent from 371 in 2014 to 539 in 2017. Maximum number of cases was reported
from Uttar Pradesh – 141 in 2017. A survey by the Indian Bar Association
mentioned that 70 per cent did not report for fear of repercussions.
The 2013 Act provides
for punishment for sexual harassment at workplace ranging from apology and
censure to withholding promotions and increments and even termination of
service. The Act does not rule out conciliation and settlement of disputes if
the victim requests.
It is reported that a
large number of companies are not aware of
the penal consequences of not constituting committees although the 2013
Act mandates constitution of Internal Complaints Committee to display the penal
provisions, organize orientation programmes for members of the ICC, and awareness
programmes for all.
Sexual harassment
includes physical contact and advances, demand or request for sexual favours,
sexually coloured remarks, showing pornography, and any other unwelcome
physical, verbal, or non-verbal conduct of sexual nature. Its meaning was
expanded in 2014 to include threats and skewed treatment within its ambit
including explicit promise of preferential treatment as well as threat of
humiliating treatment. The new set of
rules has been incorporated in the Central Civil Services (Conduct) Rules,
1964.
In this age of tight
job situation, harassment of any employee in any form affecting promotion and
prospects is bound to be a serious matter for that employee. So also, exchange
of favours between the employer/superior or boss and a woman staff member as
part of job assignment is a cruel form of crime against women. Such an
atmosphere, wherever it flourishes, must be changed.
The definition of
workplace has been amended to include any department, organisation,
undertaking, establishment, enterprise, institution, office, branch or unit
which is established, owned, controlled, or wholly or substantially funded
directly or indirectly by the Centre, any sports institute, stadium, sports
complex or competition or games venue used for training (whether residential or
not), sports or other activities, any place visited by the employee in
connection with work including transportation provided for work by the
employee, a dwelling place or house.
Sexual harassment is
the most common offence perpetrated globally against women workforce. The
latest crime survey in England and Wales shows that more than 510,000 women --
about 30 per cent of women in the age-group 15-59 experienced some type of
sexual assault in the previous year.
In Australia, the Sex
Discrimination Act was passed in 1984 under which sex harassment is unlawful
under certain circumstances. In Portugal, Belgium, and Peru, sexual harassment
of a woman in a public place is an offence. Anything that affects a woman’s
“freedom, dignity, and movement” is considered as harassment. It may be
physical or verbal.
Denial of sexual
harassment cases in workplaces is no solution to the problem that affects
women’s dignity as well as organisational goals. The Vishaka judgement should
not be frozen by inaction and indifference. ---INFA
(Copyright, India
News & Feature Alliance)
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