BATTLE AGAINST SEXUAL HARASSMENT AT THE WORK PLACE STILL CONTINUES

It was in a village in Bassi and some NGOs in Jaipur and Delhi, 21 years ago, that the battle against sexual harassment at the workplace began. The case of the government aid worker who was raped and fought back with the help of the NGO, however, has travelled a long way since.

Historic Jugdement of SC in Vishakha and others Vs State of Rajasthan and others

Bhanwari Devi was a village-level social worker employed as a Saathin under the Women’s Development Project (WDP) run by the Government of Rajasthan since 1985. In 1992, as part of the organizations work, Bhanwari Devi, with assistance from the local administration, tried to stop the marriage of influential village man’s infant daughter. However, the marriage went ahead and she was subjected to social boycott. The influential Gurjar community felt that the police interference in their affairs must have been a consequence of Bhanwari’s report to the police.

To get revenge on Bhanwari Devi, Five men of the Gurjar community raped her while she was at her workplace. Despite discriminatory and derogatory behaviour by police and doctors, determined to get justice, she lodged a complaint against the accused. However, in the absence of adequate evidence, the accused was acquitted by a trial court.

Many social organisation and women activist took up Bhanwari Devi’s fight for justice. Realising that Bhanwari’s ordeal stemmed from the work she did as part of a government initiative, women’s rights activists decided to take up her case as an example for the need to protect working women from sexual harassment. Finally, together, they filed a PIL in the Supreme Court under Vishakha and Others Vs State of Rajasthan and Others.

In August 1997, the apex court took cognisance of the case and delivered the historic Vishakha guidelines that held that sexual harassment of women at the workplace, which is against their dignity, is violative of Articles 14, 15 (1) and 21 of the Constitution. Sexual harassment, in other words, was held as a violation of fundamental rights.

The Supreme Court observed, “The immediate cause for the filing of this writ petition is an incident of alleged brutal gang rape of a social worker in a village of Rajasthan… The incident reveals the hazards to which a working woman may be exposed and the depravity to which sexual harassment can degenerate; and the urgency for safeguards by an alternative mechanism in the absence of legislative measures.”

The guidelines were named Vishakha, on the Jaipur-based NGO who have petitioned with other four women’s activist group.

Vishakha guidelines, 1997

• Sexual harassment includes such unwelcome sexually determined behaviour as physical contact and advances; a demand or request for sexual favors; sexually colored remarks; showing pornography; any other unwelcome physical, verbal or non- verbal conduct of sexual nature.
• Sexual harassment as defined at the work place should be notified, published and circulated.
• Where such conduct amounts to a specific offence under law, the employer should initiate appropriate action by complaining with the appropriate authority.
• Victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer.
• An appropriate mechanism should be created for redressal of the complaint.

THE SEXUAL HARASSMENT OF WOMEN AT WORKPLACE (PREVENTION, PROHIBITION AND REDRESSAL) ACT 2013

It took the government 17 years to pass the law against sexual harassment in the workplace earlier this year, in the wake of the Delhi gang rape last December, when the Supreme Court had in 1997 laid down the Vishaka guidelines on the matter.

The Act includes many provisions of the Vishakha guidelines, which first called for the formulation of “a code of conduct for work place”. Building on the Vishakha guidelines, the Act calls for the formation of an internal complaints committee and a local complaints committee at the district level.

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 seeks to protect women from sexual harassment at their place of work in a much wider sense.

The Bill was first introduced by women and child development minister Krishna Tirath in 2007 and approved by the Union Cabinet in January 2010. It was tabled in the Lok Sabha in December 2010 and referred to the Parliamentary Standing Committee on Human Resources Development. The committee’s report was published on 30 November 2011. In May 2012, the Union Cabinet approved an amendment to include domestic workers.  The amended Bill was finally passed by the Lok Sabha on 3 September 2012 The Bill was passed by the Rajya Sabha(the upper house of the Indian Parliament) on 26 February 2013. It received the assent of the President of India on April, 2013 and finally came into force on December 9, 2013.

Some important provisions of the Act:

1. The Act defines sexual harassment at the work place and creates a mechanism for redressal of complaints. It also provides safeguards against false or malicious charges.
2. The definition of “aggrieved woman”, who will get protection under the Act is extremely wide to cover all women, irrespective of her age or employment status, whether in the organized or unorganized sectors, public or private and covers clients, customers and domestic workers as well.
3. While the “workplace” in the Vishaka Guidelines is confined to the traditional office set-up where there is a clear employer-employee relationship, the Act goes much further to include organisations, department, office, branch unit etc. in the public and private sector, organized and unorganized, hospitals, nursing homes, educational institutions, sports institutes, stadiums, sports complex and any place visited by the employee during the course of employment including the transportation.
4. Every employer is required to constitute an Internal Complaints Committee at each office or branch with 10 or more employees. The District Officer is required to constitute a Local Complaints Committee at each district, and if required at the block level.
5. The Committee is required to complete the inquiry within a time period of 90 days. On completion of the inquiry, the report will be sent to the employer or the District Officer, as the case may be, they are mandated to take action on the report within 60 days.
6. The Complaints Committees have the powers of civil courts for gathering evidence.
7. The Complaints Committees are required to provide for conciliation before initiating an inquiry, if requested by the complainant.
8. Penalties have been prescribed for employers. Non-compliance with the provisions of the Act shall be punishable with a fine of up to  50,000. Repeated violations may lead to higher penalties and cancellation of licence or registration to conduct business.

Has anything changed?

It has been 21 years when Supreme Court had first delivered the historical Vishakha guidelines. What has changed over the years and can be called our biggest achievement is that the victim is believed and the case is taken forward on the premise that her word is the truth, unlike 21 years ago when Bhanwari’s biggest battle was to prove she was not lying. Today victims are heard and prominent actions are being taken on the complaint.

Twenty-one years later, the Vishakha guidelines springing from Bhanwari’s case are now at the centre of two high-profile incidents (Tarun Tejpal and Retired Justice Ganguly case) which have renewed focus on sexual harassment at the workplace in India.

 Vishaka envisaged that women might finally go to work with the legitimate expectation that their workplace would be free of any of the overt or implied sexual harms— that women would be accepted as colleagues and equals.

And that the responsibility for ensuring that women no longer have to dodge the offensive sexual proclivities of colleagues and superiors would lie with the employer or those in positions of responsibility.

Sixteen years later, those projecting themselves as the custodians of such basic and fundamental expectations, be it  a Tehelka, the Supreme Court of India or even the state, have barely, if at all, complied with Vishaka.

Had they done so, the law intern and the journalist would have entered a workplace that prioritized the prevention of workplace sexual harassment, encouraged its employees or members to speak up about it and cultivated an environment supportive of their claims.

They would have been equipped with language that understood sexual harassment as a violation of constitutional equality at work and hailed leadership that promptly condemned sexually inappropriate behaviour (irrespective of the offender’s status).

As a last resort, they would have had access to a trained, skilled and capable complaints committee, with third party expertise, to hear their complaint empathetically and through an informed lens. They got none of this.

In the absence of any institutional compliance, both women were subjected to ad hoc responses based on systemic sexist assumptions.

Summoned before a panel of judges, seven meetings and three affidavits later, the law intern described the experience as “being looked at with suspicious eyes”.

As for the journalist, she made her complaint to the managing editor, a proclaimed feminist, only to find the language of her sexual violation publicly diluted into an “untoward incident”, as a covert means to “protect the institution”.

The most challenging adversary to changing women’s experiences of sexual harassment in the workplace is not the actual offender, it’s the non-compliant institution.

In its failure to educate its own, to inform and stake itself on building a culture intolerant of sexual harassment, such an institution plays the same role as the passive bystander, who fosters hostile sexual environments by simply doing nothing.

Two persevering and articulate women, with everything to lose, and little to gain, remind us of one thing — doing nothing, which perpetuates a sexist status quo, need no longer be our systemic truth. It need not be the way things are.

That both incidents came to light at all is due solely to the remarkable clarity and confident expression with which each documented her experience of workplace sexual harassment by men in positions of power.