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Sexual Harassment at Workplace- A Dead End

Until 1997, India legally didn’t recognize the existence and prevention of sexual harassment at the workplace. The Vishakha Guidelines, mandating employers to take steps to protect female employees from sexual harassment at the workplace and provide procedures for resolution, settlement, or prosecution, was born out of the 1997 Vishaka v. State of Rajasthan case threw light on this issue at a national level. Besides recognizing sexual harassment of women at workplace as a violation of the fundamental rights, gender equality and the "right to life and liberty" i.e. Violation of article 1, 15 and 21, the Supreme Court came up with a few guidelines. 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 the workplace and that enactment of such legislation would take considerable time. 16 years later, after a few attempts, the legislative system passed the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

There is very little seriousness about Vishakha guidelines and the complaint committee. The National Commission for Women shows very 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 per cent of the total membership, as stipulated.

Sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as:

Physical contact and advances;

A demand or request for sexual favours;

Sexually coloured remarks;

Showing pornography;

any other unwelcome physical verbal or non-verbal conduct of sexual nature

It is unfortunate that barely has been done in order to fight for, stand for and strive for an efficient system of redressal in neither of the employment sectors. Thus, sexual harassment need not involve physical contact. Any act that creates a hostile work environment - be it by virtue of cracking lewd jokes, verbal abuse, circulating lewd rumours etc. counts as sexual harassment.

The Sexual Harassment Act casts certain obligations upon the employer to like to provide a safe working environment, to compose the Internal Complaints Committee, to organize workshops and awareness programmers, to monitor the timely submission of reports by the ICC. Not complying with any of these can cost the company a penalty of up to INR 50,000.

In reality, private companies hardly institute the provisions while the government organizations just do it on paper. It is so bad that the committee members do not even have the clue of their responsibilities, powers and duties, forget about the victim getting justice. The private companies have a lot on their stake if the dirty talks of their company leak in the public domain. Hence, most of the times the victim is forced to either take back the allegations or disassociate from the company or paid a hefty amount to zip her mouth. Or sadly enough, she faces more violent harassment. In most cases, the woman who makes complaints have to meet with an enquiry about her own conduct but no enquiry is made against the person against whom the complaint is made. Lodging complaints often results in isolation of the women, both by the employer and by the colleagues. The attitude of the employer is deep-seated as they have a presumption that this cannot happen in their organization and so the women’s complaints end up in nothing. These laws, guidelines, or judgements find their places only in law books and few journals. The National Commission for Women study shows that 60% of the working women are still not aware of this.

The big billion companies which follow the provisions out of the fear of public scrutiny and loss of goodwill, hardly comply with the redressal system or it exists just for the show. Meanwhile, victims in the unorganized sector/ the informal sector which is nearly 80% of the labour force, have barely recognized the fact that they are sexually harassed, forget the redressal system. The factory worker, domestic worker or the construction worker have other battles to fight which are as basic as a livelihood.

A nursing officer from Delhi- Garima sought protection and redress from her employers at a government hospital and complained to the Delhi Commission for Women in 2019 about the proceedings of the Internal Committee. The committee, which was formed only after her complaint, consisted of people that were already aware of the problems but had failed to intervene because the accused was their supervisor. “When the medical superintendent accused in my case entered the room, all the committee members rose to greet him,” she told Human Rights Watch. The internal committee which is supposed to protect the survivor protected the accused in this case. Garima was threatened to withdraw her complaint by the committee members, and not provided with the final report of the investigation.

Recently, we have seen a member of the National Commission for Women named Chandramukhi Devi blame a gang-rape victim on how she should not have stepped out in the evening. What implementations are we talking about if this we get to hear from a national commission that is supposed to protect women? The redressal system works very ineffectively in India. And clearly, there is not even bare minimum compliance by the government/ private organizations. Although we have legally recognized that sexual harassment is punishable, the government must come up with effective ways to make the companies and government bodies sincerely comply. Activists and NGOs work as the pressure groups against these crimes but nothing can be achieved if we shut them off too.

(Advocate Vedika Chaubey can be reached at vedikachaubey@gmail.com)