Consultation on Sexual Harassment at the Workplace
An Oxfam – Lawyers Collective Collaboration
Sexual Harassment at the Workplace and the Vishaka Guidelines
Sexual harassment as a form of gender based violence is discriminatory against women. Sexual harassment at the workplace, amongst other things, is perceived as the male assertion of power over women carried out in the public sphere imposing upon women’s fundamental right to safely occupy those public spaces and earn a living. Though widely prevalent, sexual harassment is generally perceived to be a normal and harmless practice. It is considered a natural part of a working woman’s life that rarely requires complaint or action.
The nature of sexual harassment is such that it is tantamount to a violation of human rights or civil rights and even criminal offence. This is because the victims of sexual harassment are known to suffer from multiple parameters. The lack of concrete redress mechanism in organizations or set up they operate in further add to the cycle of victimization.
Currently, there is no legislation in India that deals with sexual harassment at the workplace. However, in the case of Vishaka v. State of Rajasthan, it was for the first time that the Supreme Court gave judicial recognition to the existence of structural and systematic nature of sexual harassment at the workplace. Highlighting the fact that every woman had a right to work in an environment free of sexual harassment it stated that sexual harassment at the workplace was a violation of Article 14, 19 and 21 of the Constitution. The court moved ahead from holding an individual, criminally liable to addressing the nature of discrimination faced by women in the workplace. In order to address this issue the apex court also laid down detailed guidelines which defined sexual harassment and laid down effective mechanism for its prevention and redressal. These guidelines recognize that sexual harassment is not just a personal injury to the affected woman but violates a woman’s right to equality at the workplace. The guidelines shift the onus for ensuring employees’ safety and gender equality to the employer and institutions, whether in the government or the private sector, making them responsible for implementing both preventive and remedial measures to make the workplace safe for women.
Proposed Law on Sexual Harassment at the Workplace
Based on the Vishaka guidelines, the Government of India, together with the civil society has proposed several draft laws between 2005 and 2010. However, the latest draft ‘Protection of Women against the Sexual Harassment at the Workplace Bill, 2010’, introduced in the Parliament on December 7, 2010 is entirely a government version; the absence of civil society consultation on this draft is acute. If allowed to pass in its current form, it is likely that the said Bill will have no beneficial impact on the amelioration of working women.
Objective of the Consultation
While the Vishaka judgment and the guidelines therein came into effect nearly 14 years ago, the guidelines have proved to be inadequate and efforts to implement them have been limited. Majority of women do not take action or lodge an official complaint for fear of being dismissed, losing their reputation and or facing hostility or social stigma in the workplace. Mechanisms for redress do not always function impartially and few women are effectively able to translate the guidelines to make the workplace a safer and gender equitable place. Many public and private organizations have not even set up complaints committees or amended service rules, as mandated by the guidelines.
The Consultation sought to understand how and where the Vishaka guidelines have proved to be inadequate, even failed, in addressing the problem of sexual harassment at the workplace. It is important to do so because any law on the issue must take into account past experiences and aim to fill gaps and reform where necessary. When a Bill is in its drafting phase, it is relatively easy to close gaps, if any; once the Bill is passed and becomes a law, it becomes difficult to do so and the amendment process is very tedious. By focusing on the implementation of the Vishaka guidelines across sectors, examining the issue comprehensively through its components of redressal, prevention and protection, and drawing from experiences and perspectives shared at the Consultation, the organizers facilitated the process of identifying problems to fill gaps that need to be addressed by any law combating sexual harassment at the workplace.