In recent times, we have come across so many news regarding sexual assault and sexual crimes against women and this makes us to turn and search for the legal remedies provided by various legislations like POSH Act, Indian Penal Code 1860, etc., It is very important for us to know such legislation not because we get knowledge but because we can also create awareness among the public so that we shall protect and prevent our women from facing such embarrassing situations.
History behind Vishaka guidelines :
Before the date of landmark Judgment of Vishaka case, all the victims who had faced sexual harassment can only seek remedy through Indian Penal Code 1860 and this criminal remedy is available irrespective of the place of occurrence. In 1992, a rural development officer of state of Rajasthan was brutally gang-raped when she was actively working for the enhancement of women. This incident took place at her workplace and this made the women to fear for working with dignity. Hence PIL[i] was filed before the honourable Supreme Court and thus it paves way for the birth of Vishaka guidelines.
Vishaka guidelines :
In India, the Court will give Judgments as per the norms mentioned under the particular Act. But in Vishaka case, there was no special legislation to punish the accused persons who involved in harassing a women sexually at the workplace. Due to the absence of special Act, the Court relied upon the International Convention (Convention on the Elimination of All Forms of Discrimination against Women) and gave its remarkable Judgment including the most appreciable ‘Vishaka guidelines’. The Court had also emphasized that this Vishaka guidelines will act as law until the Parliament enacts a special legislation on sexual harassment of women at workplace since it might take sometime.
Highlights of Vishaka guidelines :
First of all, it is mandatory to all the employers and responsible persons of all institutions and workplaces to adhere to the guidelines provided by the Court to prevent the women from sexual harassment at workplaces.
- The Court imposes a duty on all employers to take necessary steps to prevent the sexual harassment against women and to assist them in the procedures for the resolution/settlement/prosecution in case of such commission.
- The Court has also defined the meaning of sexual harassment in detail which includes unwelcome sexually determined behaviour such as
- a. physical contact and advances ;
- b. a demand or request for sexual favours ;
- c. sexually coloured remarks ;
- d. showing pornography ;
- e, any other unwelcome physical verbal or non-verbal conduct of sexual nature[ii]
Therefore if a victim has faced any of the above actions which are likely to affect the employment/work of victim including her promotion,salary increment,etc., and such actions can be humiliating and also consists of health and safety problem. The facts and circumstances must be taken into consideration while deciding if such actions constitute sexual harassment or not since it is a highly sensitive issue.
- The employers also carry another important obligation that they should take necessary steps to prevent sexual harassment by notifying the prohibition of sexual harassment at workplace expressly through circulars and posters along with the rules and regulations of Government (law) with regard to penalties to the offender. The private employers should include this prohibition in their standing orders as per the Industrial Employment (Standing Orders) Act, 1946. The employers should make sure that no woman employee shall feel that she has been disadvantaged in relation to her employment, by providing comfortable work conditions and atmosphere.
- The employers should help the victim in filing cases against the offender under Indian Penal Code 1860 or under any other appropriate law in force and such victim including the witnesses should not be discriminated in the due course of proceedings against sexual harassment. He should also facilitate the transfer of an offender or victim if needed.
- If the concern employment or institution has separate service rules with regard to misconduct, then the employer should initiate the disciplinary action against the offender who involved in sexual harassment.
- Every employer should create the complaint mechanism with time-bound treatment for such complaints made by the victim,even though there is no law or service rule for such conducts.
- The Court has also mentioned that the complaint mechanism should be headed by a complaint committee in which the head should be a woman. Not less than half of committee members should be women and it also should constitute one-third party to avoid the influence and pressure from the officials. The committee should maintain the secrecy and provide special counsellor to support the victim and the employers should send the reports of such complaint committee to the concern Government department at regular intervals mentioned.
- The employees should raise the sexual harassment issues in the employer-employee meetings/workers meetings/such other relative forum.
- The employers should create the awareness with regard to the rights of female employees as mentioned in the guidelines and also under the special Act enacted later on this particular matter.
- The employer should also take necessary actions and preventive steps if his employee is sexually harassed by any outsider or third party which depicts the support and assistance of employers.
- The Central and State Government should ensure that all employers are complying with the guidelines laid down in this Judgment by making appropriate measures and legislation.
- These guidelines will not affect any rights available under the Protection of Human Rights Act,1993.
As mentioned earlier all employers were directed by the Court to adhere to the norms and guidelines given in Vishaka Judgment in order to prevent the sexual harassment against women at workplaces. By ensuring these guidelines, we can affirm the gender equality as well as other fundamental rights such as right to life and liberty[iii], right to practise any profession or to carry out any occupation, trade or business[iv] (with safe working environment),etc., These guidelines were in force till the date in which the fruit of this Judgment came into force as a special legislation named as ‘Sexual Harassment of Women at Workplace (Prevention,Prohibition and Redressal) Act,2013’.
“The views of the authors are personal“
[i] Vishaka and others v. State of Rajasthan,AIR 1997 SC 3011.
[iii]Art.21,Constitution of India,1950.
[iv] Art.19(1)(g),Constitution of India,1950.
Hemant Varshaney, Vishaka and others v. State of Rajasthan – Case summary, www.lawtimesjournal.in (August 30,2018), https://lawtimesjournal.in/vishakha-vs-state-of-rajasthan/.