by Background
It all started when Banwari Devi, a social worker in a program to stop child marriages, stopped a child marriage that was taking place in an influential Gujjar family. While Banwari Devi did a commendable job despite protests against her, the Gujjars were hell-bent on taking revenge. One Ramakant Gujjar along with five of his men gang-raped her in a brutal manner in front of her husband. Her subsequent attempt to file a police case was met with apathy for a long time and once she succeeded in doing so, she faced further stigma and cruelty. The trial court acquitted the accused citing lack of evidence but Banwari Devi, along with a sympathizer, approached the Supreme Court by way of a writ petition which eventually led to an immensely important judgement.
Vishakha Case Details
The Supreme Court was to delve into the deep-rooted gender inequality in Indian society which manifests itself in the form of violence against women (in the form of sexual harassment at workplaces and rape). The Supreme Court while looking into the issue also had to decide whether it was willing to lay down elaborate guidelines to deal with the same. The Court rose to the occasion and did come up with several guidelines to stop sexual harassment at workplaces and these guidelines are popularly known as Vishakha Guidelines.
Vishaka Guidelines against Sexual Harassment at Workplace Guidelines and norms laid down by the Hon’ble Supreme Court in Vishaka and Others Vs. State of Rajasthan and Others
HAVING REGARD to the definition of ‘human rights’ in Section 2 (d) of the Protection of Human Rights Act, 1993,
TAKING NOTE of the fact that the present civil and penal laws in India do not adequately provide for specific protection of women from sexual harassment in work places and that enactment of such legislation will take considerable time, It is necessary and expedient for employers in work places as well as other responsible persons or institutions to observe certain guidelines to ensure the prevention of sexual harassment of women.
Duty of the Employer or other responsible persons in workplaces and other institutions
It shall be the duty of the employer or other responsible persons in work places or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts, of sexual harassment by taking all steps required.
Definition
For this purpose, sexual harassment includes such unwelcome sexually determined behavior (whether directly or by implication) 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
Where any of these acts is committed in circumstances where-under the victim of such conduct has a reasonable apprehension that in relation to the victim’s employment or work whether she is drawing salary, or honorarium or voluntary, whether in government, public or private enterprise such conduct can be humiliating and may constitute a health and safety problem. It is discriminatory for instance when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work including recruiting or promotion or when it creates a hostile work environment. Adverse consequences might be visited if the victim does not consent to the conduct in question or raises any objection thereto.
Preventive Steps
All employers or persons in charge of workplace whether in public or private sector should take appropriate steps to prevent sexual harassment. Without prejudice to the generality of this obligation they should take the following steps:
A. Express prohibition of sexual harassment as defined above at the workplace should be notified, published and circulated in appropriate ways.
B. The Rules/Regulations of Government and Public Sector bodies relating to conduct and discipline should include rules/regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender.
C. As regards private employers, steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946.
D. Appropriate work conditions should be provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at workplaces and no employee woman should have reasonable grounds to believe that she is disadvantaged in connection with her employment.
Criminal Proceedings
Where such conduct amounts to a specific offence under the Indian Penal Code or under any other law, the employer shall initiate appropriate action in accordance with law by making a complaint with the appropriate authority. In particular, it should ensure that victims or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment. The victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer.
Disciplinary Action
Where such conduct amounts to misconduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules.
Complaint Mechanism
Whether or not such conduct constitutes an offence under law or a breach of the service rules, an appropriate complaint mechanism should be created in the employer’s organization for redress of the complaint made by the victim. Such complaint mechanism should ensure time bound treatment of complaints.
Complaints Committee
The complaint mechanism, referred to above, should be adequate to provide, where necessary, a Complaints Committee, a special counsellor or other support service, including the maintenance of confidentiality. The Complaints Committee should be headed by a woman and not less than half of its member should be women. Further, to prevent the possibility of any undue pressure or influence from senior levels, such Complaints Committee should involve a third party, either NGO or other body who is familiar with the issue of sexual harassment. The Complaints Committee must make an annual report to the Government department concerned of the complaints and action taken by them. The employers and person in charge will also report on the compliance with the aforesaid guidelines including on the reports of the Complaints Committee to the Government department.
Worker’s Initiative
Employees should be allowed to raise issues of sexual harassment at a workers’ meeting and in other appropriate forum and it should be affirmatively discussed in Employer-Employee Meetings.
Awareness
Awareness of the rights of female employees in this regard should be created in particular by prominently notifying the guidelines (and appropriate legislation when enacted on the subject) in a suitable manner.
Third Party Harassment
Where sexual harassment occurs as a result of an act or omission by any third party or outsider, the employer and person in charge will take all steps necessary and reasonable to assist the affected person in terms of support and preventive action.
The Central/State Governments are requested to consider adopting suitable measures including legislation to ensure that the guidelines laid down by this order are also observed by the employers in Private Sector. These guidelines will not prejudice any rights available under the Protection of Human Rights Act, 1993.
The Sexual Harassment of Women at Work (Prevention, Prohibition, and Redressal) Act, 2013 replaced these guidelines.
