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A Decade To The Vishakha Judgment

Written by: I am Devina Awasthi, second year student of Unison School of Law, Dehradun
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Once, a women activist jokingly said, to a judge in Ahmedabad. "Sexual harassment is like god, its everywhere."

It has been a decade of the famous Vishakha Judgement. Bhanwari Devi a Saathin of a development program run by the state government of Rajasthan, fighting against child and multiple marriages in villages, tried to stop child marriage of Ramkaran Gujjar's infant daughter who was less than one year old. The marriage took place nevertheless, and Bhanwari earned the ire of the Gujjar family. Gujjar family got infuriated by her interference, and on September 1992 five men including Ramkaran Gujjar, gang raped Bhanwari. Unable to get justice, women groups had filled a petition in the supreme court of India, under the name of, 'Vishakha', asking the court to give certain directions regarding the sexual harassment that women face at the workplace. The result is the Supreme Court judgment, which came on the 13th august 1997, and gave the Vishakha guidelines.

This was the case, which bought sexual harassment at workplace into public glare. The petitioners wanted assistance in suitable methods for realization of the true concept of “gender equality”; and to prevent sexual harassment of working women in all workplaces through judicial process and to fill the vacuum in existing legislation. The Supreme Court held that, “each incidence of sexual harassment of women at workplace results in violation of the fundamental rights,” “gender equality” and the "right to life and liberty." It was a clear violation of the articles 1, 15 and 21of the constitution. Gender equality includes protection from sexual harassment and right to work with dignity, which is universally, recognized Human Right. From the viewpoint of the Supreme Court it took this case quite seriously as it understood the gravity of the situation. The Supreme Court took assistance from the then solicitor general of India to formulate certain guidelines and norms to help working women against sexual harassment. These guidelines were formulated since the then civil and penal laws in India did not adequately provide for specific protection of women from sexual harassment in workplace and that enactment of such legislation would take considerable time.

Today its 10 years of the Supreme Court having given these guidelines but has there been an implementation to these? One of the major drawbacks being, that such laws and guidelines find their places only in law books and few journals. The common masses don’t get to know about such judgments. The NCW study shows that 60% of working woman is still not aware of this. In number of cases it was found that the women who made complaints had to meet with an enquiry about their own conduct and no enquiry was made against the person against whom the complaint was made. Lodging complaints often results in isolation of the women, both by employer and by the colleagues. It results in increase and sometimes more violent harassment. In a sexual harassment case the response of the employer institution is of great resistance. The institution gangs up against the women who complaints and then shield the person against whom the complaint has been reported. There is always a hesitation to initiate action against him. Worst of all, the victim is usually pressured to take the complaint back, through threat. Witnesses also tend to show their back since they are threatened to remain quite. In a 2005 case, Indian Air Force pilot Anjali Gupta was court martial for misconduct after she accused three superiors of sexually harassing her. A year later 3 trainees were also sacked when they leveled similar charges.

The case of Phaneesh Murthy clearly tells about the immunity to regulations. Phaneesh Murthy, US based head of sales, communication and product service at Infosys, India’s leading InfoTech Company, resigned in July after an American women employee in Freemont, California, registered a lawsuit against him and the company, alleging sexual harassment and wrongful termination. It should be the duty of the employer to see that nothing like this happens in the workplace. It was observed that sexual harassment is not just confined to various offices but it is quite present in educational institutions. Sexual harassment has been reported many a times in universities across India. A respected faculty member in the Urdu department in one of the collages of Delhi University harassed one of his female students. The poor girl did not find any help. A female teacher in the department stood to give her justice as nobody came up for any help. She forced the university administration to start an enquiry. But three years on, the enquiry committee has yet to come up with the conclusion.

It proves about that there is very little seriousness of not only the Vishakha guidelines but also the presence of complaint committee. The spirit of guidelines lies in its clause on prevention, but in most cases a complaint committee is set up only once a case has been reported. In a survey commissioned by for the national commission for women reveals poor compliance. Of the 799 organizations surveyed, (including government departments), only 664 had set up complaint committees as required under the guidelines required. Of these, 61 committees were headed by men, not women as the guidelines required; and over 400 of the committees did not have NGO or third-party participation. As for NGOs, only 9 out of the 22 surveyed had set up the complaint committees; and only 7 out of the 14 news agencies surveyed had set up the committees. Even where these committees existed, it seems that not all of them had women fifty percent of the total membership, as stipulated.

It is a reality that many women across India face, but few have the courage to speak against it. However Alka Pandey (name changed) is an exception. An executive with leading audit firm KPMG, was forced to resign from her post when she spoke up against sexual harassment she was facing at the hands of one of her colleagues. However, not the one to be cowed by the repressive measure, she is now taking on the ones who victimized her. Alka said it took great courage to speak about it, but the problem was she was unable to explain the situation to the senior management that comprised mostly men. While the law is very clear on sexual harassment at work place, implementation and action are still a far cry.

It can be said that the battle his half won. A recent CII survey suggests that popular private companies like Infosys Technologies, TATA Consultancy Services, Coco-Cola, Walchand Capital and Technologies have already put place a policy of prevention of sexual harassment. Even the government has swung itself in action with the ‘the sexual harassment at the workplace (prevention and Redressal) Bill.’ But the present bill is also not perfect. Justice J.S. Verma, who penned the Vishakha judgment also, “severely criticized” the bill for its vague and loose definitions. It would need to go for a round of suggestions as in the present form it would not give women the confidence to speak it out. Besides this, the new draft fails to reflect any of the many constructive suggestions put forward by women's groups. In a letter dated April 3, 2003, sent to the joint secretary of the NCW, a coalition of these women's groups’ states that they were shocked by the new draft as the changes suggested were not incorporated. The most important point is that the preventive aspect is not highlighted in the bill, as it was in the Vishakha judgment, since all workplaces must take responsibility for generating awareness about sexual harassment and making the workplaces must take responsibility for generating awareness about sexual harassment and making the workplaces safe for women.

WPC (women power connect) has listed a number of changes to the draft.

They include:
1) Clarify whether an establishment that has violated a provision of this Bill can be forced to pay monetary damages to the said party.
2) Assigning personal liability to someone who victimizes a sexual harassment complainant for having brought a complaint.
3) Including in the Bill sex-based discrimination so that it becomes gender- neutral. The current Bill only protects women against harassment by men... “As women can also sexually harass men, and same-sex harassment is also possible... it would be better to make the legislation gender-neutral,” says WPC President Ranjana Kumari. The groups also said there is a need to include sex-based discrimination that is not sexual in nature under the ambit of the Bill.
Even if we forget about the flaws of the bill, the delay in its implementation only shows the seriousness of the government towards it. The guidelines were laid in 1997 and in 10 years no law could be formulated and the draft bill so prepared is not also acceptable. Moral education is very important and it starts from home.

If a person is morally sane then such a problem might not arise. Stricter law is necessary as well as its awareness. As said above the laws find its place in limited resources. Laws need to be told at national level so women are aware of there right. Mere warning to the accused won’t solve the matter and the employee should think for once about the women who faced it rather about its own reputation.

Bhanwari Devi’s case bought sexual harassment into public glare in 1992; Vishakha guidelines in 1997 created norms before a law could be made against sexual harassment and now we have to wait for the final implementation of the sexual harassment of women at workplace bill. Ten years on, awareness has increased but without and hard-core method to completely end it. Despite the noble intention of the supreme court in issuing the above mentioned guidelines, fact remains that they are observed in breach of all the talk of the making the workplace free of sexual violence, is still a mirage. What people, whether men or woman; people inside the parliament or outside; should think about is a statement by Justice Arjit Pasayat:

“While a murder destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless women”

The author can be reached at: devina@legalserviceindia.com / Print This Article

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