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The faster that India comes to terms with sexual harassment at the workplace and deals with it effectively, the better it will be for the nation and society as a whole. The Tarun Tejpal sexual assault case has brought this issue to the forefront and along with it the Vishakha guidelines of the Supreme Court, passed a good 15 years ago in the Bhanwari Devi case. Indeed, the Supreme Court's judgement in the Vishakha v. State of Rajasthan, 1997 case has been recognised as unprecedented in the context of sexual harassment and is counted among the 10 judgements that changed India. In her fascinating book, 10 Judgements That Changed India, leading corporate attorney Zia Mody, daughter of the legal luminary Soli Sorabjee, has explained the significance of this judgement along with nine others that have had a profound impact on our nation. The following is an excerpt from her book...

 

10 Judgements That Changed India
Author: Zia Mody
Rs. 399/ Pages 240
Publishers: Penguin Books India

In an emerging Indian economy as more and more women have started to work, the malady of sexual harassment at the workplace has reared its head in several fields. From the police and the army to business process outsourcing set-ups, from multinational corporations t professional sport- it’s regrettable that no sector or discipline has been spared. As has been the case with many other pressing issues, it was a Supreme Court decision that first brought this issue under sustained public scrutiny. Since the judgement, there have been several attempts (one pending, others failed) to make definitive laws on the subject.

In the context of sexual harassment, judicial activism reached its pinnacle in Vishakha v. State of Rajasthan (Vishakha). The judgement was unprecedented for several reasons: the Supreme Court acknowledged and relied to a great extent on international treaties that had not been transformed into municipal law; the Supreme Court provided the first authoritative definition of ‘sexual harassment’ in India; and confronted with a statutory vacuum, it went creative and proposed the route of ‘judicial legislation’.

The trigger that led to a public interest litigation (PIL) being filed in respect of the Vishakha case was the gang rape of a social worker in Rajasthan. Bhanwari Devi was a saathin, grass-roots worker and activist, employed in the Women’s Development Project (WDP) of the government of Rajasthan. In 1992, the Rajasthan government launched a campaign against child marriage, in connection with which WDP employees persuaded villagers to abandon the practice, which was and still is rampant in Rajasthan. Bhanwari Devi made a spirited effort to prevent the marriage of a one-year-old girl, but in vain. What ensured was a complete breakdown of the institutional machinery in Rajasthan. The villagers harassed, threatened and socially boycotted Bhanwari Devi. Then, in September 1992, five villagers raped her in the presence of her husband. She sought justice, but faced innumerable hurdles from police authorities. The trial court in Rajasthan went ahead and acquitted the five accused.

This spurred a group of five NGOs, under the name ‘Vishakha’, to file a PIL in the Supreme Court seeking detailed directions on how sexual harassment of women at the workplace could be prevented through a judicial process.

Thinking Global, Acting Local: Reference to International Treaties

The Constitution of India does not have a precise stand on the value of international treaties that have been signed or ratified by the government, but not implemented via legislation. In Vishakha, the court moved towards  a more purposive understanding of fundamental rights by affirming that ‘any International Convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into these provisions [the fundamental rights] to enlarge the meaning and content thereof, to promote the object of the constitutional guarantee’. Since there was no legislation in India related to sexual harassment at the workplace, the court stated that it was free to rely on the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW- signed by India in 1980) in interpreting Articles 14, 15, 19 and 21 of the Constitution. To justify its decision the court referred to several sources including the Beijing State of Principles of the Independence of the Judiciary, a decision of the High Court of Australia and its own earlier decisions.

Vishakha also reflected a productive interaction between international covenants and municipal courts. Since Vishakha, the Supreme Court has (had to) increasingly rely upon multilateral treaties, particularly those forming a part of the International Bill of Rights, because of the long periods of legislative inactivity in spheres of contemporary relevance. Given that all decisions of the Supreme Court are treated as law under Article 141 of the Constitution, the guidelines issued by the court in Vishakha plugged a legislative vacuum.

Guidelines or Legislation?

The Supreme Court then issued a series of ‘guidelines’ (based on CEDAW) to protect women from sexual harassment at the workplace. These guidelines were to be ‘strictly observed in all workplaces’ (whether in the private or public sector) and would be ‘binding and enforceable in law’ until suitable laws were made on the issue.

The Supreme Court set out the following guidelines:

  1. The employer and/or other responsible people in a workplace are duty-bound to prevent or deter sexual harassment and set up processes to resolve, settle, or prosecute in such cases.
  2. For the first time in India, ‘sexual harassment’ was defined authoritatively. The Supreme Court stated that it includes ‘such unwelcome sexually determined behaviour (whether directly or by implication) such as physical contact and advances, a demand or request for sexual favours, sexually coloured remarks, showing pornography, and any other unwelcome physical, verbal or non-verbal conduct of sexual nature’.
  3. All employers or persons in charge of workplaces must strive to prevent sexual harassment and, if any act amounts to specific offence under the Indian Penal Code, 1860 (the IPC) or any other law, they must take appropriate action to punish the guilty.
  4. Even if the act is not considered a legal offence or a breach of service rules, the employer should create appropriate mechanisms so that the complaint is addressed and redressed in a time-bound manner.
  5. This complaint mechanism, must, if necessary, provide a complaints committee, a special counselor or other support service, such as assuring confidentiality. The complaints committee should be headed by a woman, and at least half its members must be women. Also, to pre-empt any undue pressure from senior levels, the complaints committee must involve a third party (such as an NGO) familiar with the challenges of sexual harassment.
  6. The employer must sensitize female employees to their rights and prominently notify the court’s guidelines.
  7. Even if a third party is responsible for sexual harassment, the employer must take all steps necessary to support the victim.
  8. The central and state governments should adopt suitable measures to ensure that private sector employers implement the guidelines.

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