Vishakha Guidelines
Vijaya Rahatkar, Chairperson Mahila Ayog (Maharashtra) explains the legalities involved in dealing with sexual harassment at the workplace and while highlighting basic flaws
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, is yet to instil a sense of security among working women. Hardly any employer has complied with the Law in total! Such harassment leaves a permanent scar on the woman. They find it extremely difficult to cope with such behaviour of male co-workers. They had no option but to put up with the sexual harassment at the workplace since the procedure to get justice in such cases was very complicated and the hostile attitude of the co-workers and employer made the struggle even more difficult. Till 1997, the victim had to lodge police complaint under Section 354 of the IPC for criminal assault to outrage women’s modesty and Section 509 of the IPC for using a word, gesture or act intended to insult the modesty of a woman.
The gravity of the issue came before the nation when Bhanwari Devi, an employee of the Rajasthan government was raped for performing her duty. Her only ‘fault’ was, as a worker of the Women Development Programme, she tried to prevent child marriage. This irked the powerful men in the community. The feudal patriarchs of the village were enraged. They decided to teach her a lesson and repeatedly raped her. Enraged by the brutality, a women’s rights group ‘Vishakha’ filed a Public Interest Litigation (PIL) in the Supreme Court of India since the victim didn’t get justice from Rajasthan High Court. As a result of the PIL, the Supreme Court of India realised the absence of domestic law in such matters and the need to formulate an effective measure of check sexual harassment at all workplaces.
The law formulated following the PIL is also known as the Vishakha Guidelines. The Sexual Harassment of Women at the Workplace (Prevention. Prohibition and Redressal) Act, 2013 came into existence to the victims of sexual harassment at the workplace. According to the provisions of the Act, any unwelcome, sexually determined behaviour of co-workers which includes physical contact and advances, a demand or request for sexual favours, sexually intended remarks, showing pornography and any other unwelcome physical, verbal or non-verbal conduct of sexual nature amounts to sexual harassment at workplace. The act (Vishakha Guidelines) is applicable to women employed in the government department, private enterprise, salaried of working on honorarium or even voluntarily.
The act has no doubt, came as the biggest protection tool for working women. As it stipulated time limit of three months to make a complaint, time-bound redressal- Internal Complaints Committee (ICC) must complete the inquiry in 90 days ensures total confidentiality in inquiry procedure and recommendation by ICC to prevent identification and sullying of the reputation of all parties involved, conciliation, interim relief, principle of natural justice, lower burden of proof, monetary compensation and appellate remedy. A recent survey reveals the startling state of affairs. Though great strides have been made in the last two years with regards to the implementation of the Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act, 2013, there is still a long way to go.
The survey results further reaffirmed that on the ground, the employers have a misconception that it is applicable only if there are women employees. On the contrary, all the organisations, irrespective of whether they have women employees or not, have to comply with the act. It is not limited only to the companies but also applies to all the establishments such as LLP, Partnership, Proprietorship, Trust, Society etc. The law mandates confidentiality to protect the identity of the victim, harasser and also the witness in public or media. The evolution of charge of sexual harassment depends on how the complainant looks at it. What matters is how she perceives it and not, what the harasser claims his intentions were.
This is one of the key provisions of the Act since the harasser will always tend to dilute the act by claiming no intention to harass the complainant sexually. The ICC must complete the inquiry within 90 days. The time starts from the day of lodging the complaint. A victim can lodge a complaint of sexual harassment at the workplace within three months of the incident.
The most important aspect of the Act is that sexual harassment at the workplace has been made a criminal offence and is punishable with imprisonment for up to three years. The complainant could be visitor, vendor, customer, bystander, intern or even job seeker, who faces sexual harassment, as defined in the Act, can lodge the complaint. If one is able to prove the probability of the offence, it is sufficient to lodge the case. The organization must help the victim to lodge a complaint with the ICC and even with the police if so desired.
As per the Act (Vishakha Guidelines), all the employers have obligations to formulation of Anti Sexual Harassment Policy, putting up posters regarding penal consequences of sexual harassment, nomination of internal complaints committee (ICC) at each location with an external member, sensitizing all employees with the provisions of the Act, skill-building programme for the members of ICC, annual reporting obligations by the ICC to the employer and the district officer, inclusion of sexual harassment complaints received and their disposal in the Annual Report of the Company. If the organisations implement the law in letter and spirit, almost 90 per cent of the cases sexual harassment at the workplace would be prevented.