Because there is no clear legislation, only a set of guidelines by the Supreme Court, to deal with the issue of sexual harassment in the workplace, allegations of this nature are often not dealt with properly. The recent case, where the head of the political science department at Delhi University was found guilty yet no action was taken against him, is a case in point
The recent case of sexual harassment by the head of the political science department at the University of Delhi, Bidyut Chakrabarty, again brings into focus the issue of sexual harassment of women in the workplace. It appears that the apex complaints committee of the university has prima facie found the allegations levelled against the head to be true. Yet no action has been taken and Chakrabarty continues to hold the post of head of department and dean of social sciences.
Chakrabarty’s is not an isolated case; there are a number of such instances of inaction despite findings of sexual harassment. Given this state of affairs in relatively progressive spaces like universities, the situation with regard to action in instances of sexual harassment in other workplaces is bound to be worse.
Part of the problem lies in the fact that there is no legislation to deal with sexual harassment in the workplace. Complaints committees to deal with cases of sexual harassment have been set up in workplaces and are functioning in compliance with a judgment of the Supreme Court in the Visakha case. (The landmark judgment was rendered in 1997 in a public interest litigation filed by social activists and is reported as Visakha versus State of Rajasthan, (1997) 6 SCC 241.)
Generally, under the constitutional scheme, laws are to be made by the legislature, that is Parliament or state assemblies, and the courts are to interpret the law. There is no legislative recognition of sexual harassment in the workplace. There is no specific legislation with a definition of sexual harassment, or a mechanism to deal with it. The closest conception in law is the archaic-sounding ‘outraging the modesty of a woman’ in the Indian Penal Code. The penal code itself dates back to 1860 and the concept of ‘outraging modesty’ ill-suited to present-day sexual harassment in the workplace.
The court recognised that the primary responsibility for ensuring the safety and dignity of women through suitable legislation and the creation of a mechanism for enforcement lay with the legislature and executive. However, it took the view that in the interests of “gender equality”, and to prevent sexual harassment in the workplace, an attempt could be made to fill the vacuum in existing legislation through the judicial process.
The public interest petition in the Visakha case was filed to enforce the fundamental right of working women to life and liberty, to equality, and to practise any profession or carry out any trade or business. The immediate cause for the filing was the brutal gang-rape of Bhanwari Devi, a social worker in Rajasthan. The court felt that the incident was illustrative of the hazards to which working women can be exposed and the depravity to which sexual harassment can degenerate. In the absence of legislative measures, the court engaged with the issue impelled by the need to evolve an effective alternative mechanism to fulfil the urgent social need for a check on sexual harassment in the workplace.
The judgment clearly holds that instances of sexual harassment in the workplace are a violation of the right to equality, under Article 14, right to practise any profession or carry out any trade or business, under Article 19 (1)(g), and the right to life and liberty, under Article 21 of the Constitution. In addition, the court referred to the right against discrimination on grounds of religion, race, caste, sex or place of birth, under Article 15 (1), the directive principle to secure just and humane conditions of work, under Article 42, and the fundamental duty to renounce practices derogatory to women, under Article 51-A. In an attempt at creating a mechanism to deal with sexual harassment, the judgment adverts to Article 51 which enjoins the State to foster respect for international law and treaty obligations, and Article 253 which gives power to Parliament to make laws to implement international treaties, agreements or conventions.
The court refers to provisions of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). Article 11 of CEDAW enjoins State Parties to take measures to eliminate discrimination against women in employment, in order to ensure equality, right to safe working conditions and the right to work as inalienable rights of all human beings. Article 24 records that all State Parties undertake to adopt all necessary measures at the national level to achieve the rights recognised under the Convention. The general recommendations of CEDAW with respect to Article 11 are that equality in employment is seriously impaired when women are subjected to gender-specific violence such as sexual harassment in the workplace. Sexual harassment includes unwelcome physical contact, advances, sexually-coloured remarks, showing pornography, sexual demands whether by word or action. Such conduct was declared to constitute a health and safety problem, and effective measures for the redressal of complaints have to be set up by the State Parties to the Convention.
The court noted that the Government of India had ratified the resolution, dated 25-6-1993, undertaking to adopt all necessary measures at the national level aimed at achieving full realisation of the rights recognised in CEDAW. Further, that at the Fourth World Conference on Women in Beijing, the Government of India made an official commitment to formulate and operationalise a national policy on women to guide action at every level; to set up a Commission for Women’s Rights to act as a public defender of women’s human rights; and to institutionalise a national-level mechanism to monitor implementation of the Platform of Action.
The judgment declared that in view of these developments, reliance could be placed on CEDAW for the purpose of construing the nature and ambit of the constitutional guarantee of gender equality in the Constitution. The court observed that the fundamental rights guaranteed in the Constitution encompass all facets of gender equality including prevention of sexual harassment or abuse. The international conventions and norms can be read into the interpretation of fundamental rights especially in the context of lacunae in the domestic law.
In the absence of enacted legislation to provide effective enforcement of gender equality, the court laid down guidelines to ensure the prevention of sexual harassment of women in the workplace. The guidelines were declared to be binding and enforceable by law and were to be strictly observed in all workplaces for the preservation and enforcement of the right to gender equality of working women.
Given the fact that there is no legal concept of sexual harassment in law, the judgment defines sexual harassment in the workplace to include physical contact, advances, requests for sexual favours, sexually-coloured remarks and other unwelcome conduct. It casts a general duty on employers to prevent sexual harassment and to set up procedures for the resolution, settlement and prosecution of acts of sexual harassment. Certain preventive steps like publication and circulation of the express prohibition of sexual harassment and the inclusion of sexual harassment as a misconduct, and provision for penalties for the offender in the service rules have been laid down. A responsibility has been put on the employer to provide appropriate work conditions with respect to work, leisure, health and hygiene, to ensure that the environment at the workplace is not hostile towards women, and that women do not feel disadvantaged in connection with employment.
In the event that acts of sexual harassment amount to an offence, the employer has a duty to make a complaint. The employer must also ensure that victims or witnesses are not victimised or discriminated against. Victims of sexual harassment should have the option of seeking a transfer of the perpetrator, or their own transfer. Disciplinary action should be taken and the perpetrator punished for misconduct under the service rules. The judgment directs the employer to set up a complaints mechanism for time-bound redressal of complaints. The complaints mechanism should provide for a complaints committee, a special counsellor, and include the maintenance of confidentiality. The complaints committee is to be headed by a woman; at least half its members must be women; and it should involve a third party, either an NGO or some other body familiar with the issue of sexual harassment.
The judgment directs that employees be allowed to raise issues of sexual harassment at workers’ meetings. The issue should also be affirmatively discussed in employer-employee meetings. Responsibility of creating general awareness of the rights of female employees and, in particular, prominent display of guidelines with regard to sexual harassment has also been placed on the employer. In case of sexual harassment by a third party or outsider, the employer has to take all the necessary steps to assist the affected person in terms of support and preventive action. Central and state governments have been requested by the court to adopt suitable measures, including legislation, to ensure that the guidelines are observed by employers.
As the direction to governments to consider taking measures, including legislation, indicates, the court is aware that to tackle the issue of sexual harassment in the workplace there is a need for laws to be enacted by the legislature. In the absence of laws, the court has stepped in and laid down certain guidelines to be observed to ensure the prevention of sexual harassment in the workplace. The guidelines are necessarily general in nature, and the judgment does not create any particular mechanism or machinery for implementation. In fact, a number of courts including the apex court have failed to set up complaints committees despite having a sizeable number of women employees. Even in workplaces where employers have set up complaints committees, their functioning appears to lack effectiveness in tackling the menace of sexual harassment in the workplace. The committee at Delhi University is a case in point. There are long delays and inaction even after indictment by the committee, with the vice-chancellor taking the view that sexual harassment is not an issue and unilaterally declining to take action.
There would be no room for this kind of exercise in arbitrariness by the vice-chancellor in a well-drafted legislation. The legislation would have specific provisions for implementation and a concrete mechanism. The present situation of having to file a contempt of court petition in case of violations of the law declared in the Visakha judgment is not a workable and viable solution. A law would clearly lay down specific persons to approach in case complaints committees and redressal mechanisms have not been set up or are not functioning in an independent and impartial manner, as seems to be the case in the few instances of complaints in the army and air force. The private and public sector seem to be going hand-in-hand; all employers appear to follow the policy of victimising the victim and levelling charges ranging from insubordination to financial irregularity against the complainant. Specific provisions barring the levelling of charges by the management against a complainant are necessary for any redressal mechanism to function. Like the Domestic Violence Act, a law drafted by women’s groups and NGOs, which have been taking up cases and engaging with the issue, would definitely go some way in tackling sexual harassment in the workplace.
