This article is written by Shubhada Sonwalker.
Traditionally women in India were conditioned to stay at home, take care of the young while the men were considered the breadwinners. With access to education, better facilities, Increased literacy and the industrial revolution. Women all around the world left the boundaries of their homes and started working. Though women had been working always with their families on farms, as house help, even as babysitters from time immemorial.
All these were considered secondary activities and were seldom recognised. Women worked without any rights and thus were frequently exploited.
The makers of the constitution recognised this problem and provided the right to equality to all. Irrespective of gender, caste, creed or social status.
India’s Constitution aims at equality under Art.15 and provides for special laws to be made for the depressed classes and women. The status of women even today is not at par with their male counterparts. We certainly require laws which support women to take their rightful place in society. Gender specific laws in India are made to ensure equity between the genders.
The Sexual Harassment of Women at Workplace Act, 2013 is a welcome addition amongst the class of such laws. It has received both widespread praise and flak in recent times.
The research paper is aimed at analysing the effect that this law has had on society.
It aims to seek answers to potent questions of whether the law has helped cement the place of women in society ? Have there been any ill Effects or not?
In an emerging Indian Economy as more and more women started entering the workplace, the malady of sexual harassment has reared its ugly face into many fields. From police and the army to multinational companies to sports– it is regrettable that no field of human endeavour has been left untouched. There was a pressing need for legislation which could protect the rights of these working women. As has been the case with many laws the first time this was brought under the public eye was by judicial activism.
In the context of sexual harassment, judicial activism reached its pinnacle in Vishakha v. State of Rajasthan (Vishakha). The judgement was unprecedented for several reasons: the Supreme Court acknowledged and relied to a great extent on international treaties that had not been transformed into municipal law; the Supreme Court provided the first authoritative definition of ‘sexual harassment’ in India; and confronted with a statutory vacuum, it went creative and proposed the route of Judicial Legislation.
Gang rape of Bhanwari Devi
The incident that lead to a public interest litigation being (PIL) filed in respect of the Vishakha case was the gang rape of a social worker in Rajasthan. Bhanwari Devi was a satin, a grass-roots worker and activist, employed in the Women’s Development Project (WPD) of the government of Rajasthan. In 1992, the Rajasthan government launched a campaign against child marriages, in connection with which the WPD members persuaded villagers to abandon the practice, which is still rampant in Rajasthan. Bhanwari Devi made all possible efforts to prevent the marriage of a one year old girl, but in vain. What ensued for her was worse than a nightmare. There was a complete breakdown of institutional machinery in Rajasthan. The villagers harassed, threatened and socially boycotted Bhanwari Devi.
Then in September 1992, five villagers raped her in the presence of her husband. She sought justice, but faced innumerable hurdles from police authorities. The trial court even went ahead and acquitted the five accused.
This made five NGOs under the name ‘Vishakha’ to file PIL in the Supreme Court seeking detailed directions on how sexual harassment of women at workplace could be prevented using judicial activism.
Reference to international treaties while making the Vishakha Guidelines
The Vishakha Guidelines served a great purpose as it immediately filled the void of lack of legislations in respect of Sexual Harassment of Women at Workplace. Till 2013 they were the only set of guidelines applicable across India that were specific to this issue.
Due to them being passed by the Supreme Court and it acting as a court of record it was de facto applicable in the lower courts as well. But, to frame it was a task the three judge bench consisting of J.S Verma (then CJI), Sujata Manohar and B.N Kripal took cognisance of all the international treaties existing at that point. The Constitution of India does not have a precise stand on the value of international treaties that have been signed or ratified by the government, but not implemented via legislation. In ‘Vishakha, the court moved towards a more purposeful understanding of fundamental rights in tune with most of its recent interpretations by affirming that ‘any International Convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into these provisions [The fundamental Rights] to promote the constitutional guarantee’.
Since there was no law relating to Sexual harassment at workplace, the court stated that it was free to rely on the Convention of Elimination of All Forms of Discrimination against Women (CEDAW– signed by India in 1980) in interpreting article-14,19 and 21 of the constitution. To justify the sources the court referred to several sources including the Beijing Statement of Principles of the Independence of Judiciary. A decision of the High Court of Australia and its own earlier decisions. Vishakha was also possibly the first instance in India where International Covenants had been applied to municipal and district level courts directly. Since Vishakha, The Supreme Court has started heavily relying on international Multilateral treaties, particularly those forming part of the Universal Declaration OF Human Rights (1948) and others forming part of International Bill of Rights due to legislative lethargy in spheres of public importance. Often filling legislative voids by exercise of Art 141.
The Supreme Court issued a series of ‘guidelines’ (based on CEDAW) to protect women from sexual harassment at the workplace. These guidelines were to strictly observed in all workplaces (whether in the private or private sector) and would be binding and enforceable in law until suitable laws were made.
The Supreme Court set out the following significant guidelines:
- The employer and / or other responsible people in a workplace are duty-bound to prevent or deter sexual harassment and set up processes to resolve, settle or prosecute in such cases.
- For the first time in India “sexual harassment was defined authoritatively”. The Supreme Court stated that it includes such unwelcome behaviour (whether directly or by implication) such as:physical contact and advances, a demand or request for sexual favours, sexually coloured remarks, showing pornography, and any other physical, verbal or non- verbal conduct of sexual nature.
- All employers or persons in charge of workplaces must strive to prevent sexual harassment and if any act amount to a specific offence under the Indian Penal Code 1860 or any other law, they must take appropriate action to punish the guilty.
- Even if the act is not considered a legal offence or a breach of service rules, the employer should create appropriate mechanisms so that the complaint is addressed and redressed in a time bound manner.
- This complaint mechanism must, if necessary, provide a complaints committee, a special counsellor or other support service, such as assured confidentiality. The complaints committee should be headed by a woman, at least half of the members should be women. Also, to pre-empt any undue influence from senior levels, the complaints committee must involve a third party (such as a NGO) familiar with the challenges of Sexual Harassment.
- The employer must sensitise female employees to their rights and prominently notify the court’s guidelines.
- Even if a third party is responsible for sexual harassment, the employer must take all steps necessary to support the victim.
- The Central and State Governments should adopt suitable measures to ensure private sector employees implement these guidelines.
Comparison with the Act
Most of the guidelines have been adopted verbatim in the Prevention of Harassment of Women in workplace Act 2013.There have been no significant changes except for the clause of out of court settlement, but in this also there is no settlement in return of Money. This seems applicable on paper but its implementation is a big question.
Also, In the Act, the woman has been allowed to take a leave from office for a period of 3 months from the date of the complaint being filed. While the Man has been asked to respond within the given timeframe while working in the office. The lady (presumably the victim) is allowed additional leave as and when she demands on top of the leaves that she was entitled to as the employee of the company that she is employed with.
Developments After Vishakha
A huge amount of cases have cropped up across high courts (and occasionally supreme court) with reference to the Vishakha Guidelines, these seek the establishment of complaints committees, dispute the constitution of complaints committees have already been in place, or challenge orders of dismissal based on the decisions of these committees.
Apparel Export Promotion Council v A.K Chopra was the first case in 1999 where the supreme court found an opportunity to follow its judgement in Vishakha. The council Chairman was accused of sexually harassing the secretary; though he made repeated attempts. the chairman never actually molested her. On her complaint the employer was fired. On the basis of a writ petition filed by the employer the Delhi High Court took cognisance of the fact that he never actually molested her and did not make any actual physical contact. Thus concluding that he did not actually molest her. In an appeal filed by the council, the Supreme Court reversed the Delhi High Court Judgement, recognising that physical contact was not a prerequisite of Sexual Harassment, given the broad definition under Vishakha. It asserted that sexual harassment compromised the dignity of women and cannot be condoned. It asserted that sexual harassment compromised the dignity of women and cannot be condoned. In addition to the international sources referred in Vishakha, the court also cited the International Covenants on Economics, Social and Cultural Rights and the International Labour Organization’s seminar on combating sexual harassment at work.
The Supreme Court’s refreshingly progressive approach in Chopra marked a transition in the usual stance of Indian Courts. The apex court acknowledged that harassment transcends physical barriers and the effects of mental harassment can be equally damaging. And yet the court’s deep seated insensitivity to women’s issues does come up occasionally.
In DS Grewal v. Vimmi Joshi a colonel of the Indian Army made advances at and wrote inappropriate letters to the principal at an army school. The principal was apprehensive that if she objected to his conduct, he would create a hostile working environment and hinder her employment, including her promotion. Her fears did come true as her services were terminated. The Supreme Court ordered the school management to constitute a three- member complaints committee (as mandated by Vishakha Guidelines) to ascertain if there were any prima facie case against the army officer. If the committee found such a case, it would submit its reports to the army, which would then initiate disciplinary proceedings.
The court also affirmed that the school management was bound to bear the legal costs incurred by the principal (with counsel fee assessed at 50,000) for it had not complied with Vishakha Guidelines to begin with. In the absence of laws relating to sexual harassment Vishakha Guidelines were the only reliable source of action. It acted as a deterrent and ensured strict compliance was done with respect to its provisions. The mere idea of being prosecuted in such a grave issue invited much public ridicule.
Courts emphasised on the strict compliance on the Vishakha Guidelines and have not viewed alternative mechanisms kindly. In a case where a public company appointed an advocate as an inquiry officer to investigate a complaint of sexual harassment, The Bombay High Court refused to accept the efficacy of the procedures followed and held that the complaints mechanism employed in Vishakha was mandatory.
The Vishakha Guidelines had been applied to almost all forms of formal employment even NGOs and Cooperative societies. As Kerala HC observed the ‘the quality of womanhood does not change by the place she works in be it public or private’.
In yet another shift of stance, The Madras HC held that even in the cases where the allegations of sexual harassment seemed baseless and seemed like an after thought, proper course would be to first refer the issue to the complaints committee.
Vishakha was indeed the first legislation which defined harassment inclusively and covered all the behaviours which denied a person employment– related benefits due to rejection of sexual Demands (quid pro quo harassment) or creates a hostile work environment (without directly impacting on economic and other benefits).
Double Edged Sword: Instances of Use of the law as a means of Vengeance
Any measure which aims to protect the disadvantaged sections of the society or minorities is likely to be abused, and Vishakha is no different. In the case of Usha C.S v. Madras Refineries, The Madras High Court heard a complaint of sexual harassment made by the employee of Madras Refineries Ltd, a public sector undertaking. The employee alleged that she was denied her study leave with pay, salary and promotion because she rejected the advances of the general manager of her department. After examining the facts the court held that the employees allegations regarding her promotion and study–leave were baseless, as both decisions appeared to have been taken in accordance with the company policy. Further, the complaint committee had been properly constituted, but the employee had persistently delayed the inquiry, therefore, her allegations of sexual harassment were merely a weapon to bargain for a promotion and study leave and pay, contrary to company policy. Highlighting and condemning the misuse of the Supreme Court’s judgement in Vishakha, the court held:
“The employer, who is supposed to keep a vigilant eye on the victim and the delinquent, is not expected to allow the woman to use it as a shield so presented by the apex court as a means to seek vengeance. It is true that we are bound by the decisions of the apex court, but that does not mean that they can be allowed to interpret to suit the convenience of the woman like the petitioner, for personal gain.”
The court thereafter described Vishakha as a ‘double- edged weapon’. In keeping with other decisions on the subject, it affirmed that the court cannot assume that the court cannot assume that an allegation of harassment is correct unless it is first referred to a complaints committee.
The bench urged the other courts to bear in mind the facts of each case individually, without assuming that the woman is a victim in each case. In fact in this particular case the appellant had a history of unwarranted leaves and absences. Such cases bring light to the anomaly of use of positive laws for harm to a person. Though a lot many researchers are of the view that since the false cases are only 4% or 5% of the whole of the cases filed according to NCRB data That these cases should be ignored and a bigger picture should be looked at. These laws indeed help the woman assert her position in society.
But similar to Domestic Violence Cases and Dowry Harassment Laws there are a huge number of people who are threatened with false prosecution. Just like women find it difficult to accept and tell the people if she has experienced sexual assault. It is equally tough for a Man who has been falsely implicated to prove his innocence.
As seen in the famous Rohtak Bravehearts Case, the media was quick to pounce on the story of two women mercilessly beating up their Molesters in a Haryana Intercity Bus, these Men were branded as Demons and were called all sorts of Names. They tried to assert their innocence but to no avail. They were portrayed as villains in the story. While the girls were catapulted to the status of Heroines even before the case went on trial.
They (the Girls) were to be awarded by the Haryana Government for their bravery.
The case took two years to provide a conclusive judgement, the judgement shook everyone to the core in the judgement it was found that there was no harassment done by the three accused. All the evidence and witnesses said that the men had not given any inappropriate gestures or implications. After a thorough background check it was found that the family of the supposed victims (Aarti and Pooja) had the habit of borrowing money and then coercing the lenders to forgo the loans by threatening to file false complaints of Rape, Kidnapping and Molestation.
While the matter was under trial the Boys (Kuldeep, Narayan, Mohit) had lost their chance to sit for the armed forces written exam as they were accused of such a controversial case.
Two of them were forced to quit their education. Once the judgement came out all the boys demanded the court was to regain their respect.
The Delhi High Court took cognisance of the false case of Sexual Harassment filed by women in one of its landmark judgements Anita Suresh v. Union of India in which Justice Midha granted exemplary damages to the respondent in the lieu of false Sexual harassment being filed against them. The court ordered the appellant Ms. Anita Suresh to pay 50,000 rupees to the respondents and the bar association of Delhi.
This helped point out that being falsely implicated of such heinous crimes has a huge impact on the life of the accused as he may be innocent, but people start to consider him guilty beyond doubt.
Changes in the sexual harassment of women at workplace (prevention prohibition and redressal) Act, 2013
The Act recognises the possibility of false prosecution and says that all the punishments which would have been applicable on the perpetrator had the accusation be proved would be conversely applicable on the plaintiff if she files a false case.
The act is revolutionary in every sense but it has come under scrutiny because its narrow scope, exploitation of men though not a common practice in India. Is also not unheard of.
But, One thing that the act definitely did was improve the status of the labour class or the housemaids whose rights were tough to protect even in the Vishakha guidelines, have been given proper redressal mechanisms so that their rights are also protected.
The implementation of the act has bought in both positive and negative changes in the society. First it has made workplaces more female friendly. People especially employers have become aware of their limits, duties and responsibility. In the corporate structure it has brought in a sense of security in the women. In the recent wave of METOO movements the people have become well aware of their boundaries. The act has provided women with a definitive forum for their issues to be heard.
However robust the act may seem there are still many women who are unaware of their rights. There are still many cases that are not registered due to shame or the undue influence of the perpetrator. Though out of court settlement does not permit the exchange of money against sexual harassment cases, many women who are vulnerable are still forced to accept the money and remain quiet.
On the flip side are the women who have used the Act to meet their personal Vendetta and have changed the act from a shield to a sword. There are many cases where the accused has done no wrong but has to bear the brunt of the society due to a false case being filed. Men do not have any means to prove their innocence than to fight the case. But, the battle is half lost as the society considers him the culprit before the trial has even begun. And even if he is declared innocent the judgement arrives with relief which seems too little too late as the reputation of the family has already turned to ruins.
Colin Kaepernick Effect
The false cases filed in the Act have been much publicised and have ruined the image of women in many workplaces. Also, with the onslaught of the METOO movement, each and every action is under scrutiny. According to many critics the normal balance of the workplace has been disrupted. One dire effect which this act might have is the non-hiring of capable and qualified women.
As it is women’s participation across industries in negligible amounting to only 4% according to NCW data, women may find it difficult to get hired. As an employer may find it easier to hire a man with less expertise but also less complications. As in the case of a woman facing sexual harassment the employer has to bear the cost of the litigation as well as grant her leave up to three months in addition to the normal leave she was entitled to. All this adds to the cost.
We have certainly come a long way from having no mechanism for redressal available to a woman to a very potent and robust mechanism available for redressal. In depth view in the topic makes us realise that any law cannot be unidimensional. And a law as revolutionary as sexual Harassment of Women in Workplace has had huge social implications. What I feel is that this law is certainly a step in the right direction. What it requires is public awareness, sensitivity and robust implementation. I think when any incident happens people should not become judgemental against the woman or the man. The due process should be followed.
There should also be a Men’s Commission in place so that even men have the right to address their grievances in a systematic manner.
As the job of the Act is to bring equality not to suppress any gender.
- 10 Judgements that changed India
- Constitution Of India
- Avani Mehra Sood, PART 2 EQUALITY SOCIAL INCLUSION AND WOMENS RIGHTS: REDRESSING WOMENS RIGHTS VIOLATIONS THROUGH JUDICIARY. Jindal Global Law Review (vol.1)(2009)
- SCC ONLINE
- NCRB YEARLY REPORT 2016
- International Labor Organization Tripartite Regional Seminar on Combating Sexual harassment at work, Manila, November 1993
- Rohtak Bravehearts the continuing story, Documentary by Deepika Narayan Bharadwaj
- You tube/Rohtakbravehearts
- Vox.com/ Colin Capernick / Nike
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