Chinmoy Pradeep Sharma

A case involving the alleged assault and manhandling of a woman lawyer by her male colleagues at the Tis Hazari Courts in the Delhi before the Supreme Court has brought the spotlight back to the issue of lack of implementation of measures for prevention of sexual harassment of women at the workplace.

In that case, the Supreme Court was apprised about the non-existence of the committee in terms of judgment in Vishaka’s Case and the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 (the “Act”) in Tis Hazari Courts and other district courts in Delhi.

Reiterating its commitment to ensuring complete compliance of these two mainstays for prevention of sexual harassment, the Supreme Court has directed all the High Courts and District Courts of the country to constitute the committee under the Act, if not already constituted, within a period of two months.

In order to understand the context of the Order, it is necessary to look at where it all begins.

In the year 1992, a Writ Petition was filed by a few social activists and NGOs led by a women rights group named Vishaka before the Supreme Court titled Vishaka v State of Rajasthan. Though the immediate objective of the Writ Petition was to bring to the Supreme Court’s attention an incident relating to the alleged brutal gang rape of social worker in a village of Rajasthan, the Writ Petition was broad-based revealing the hazards to which a working woman may be exposed and the depravity to which sexual harassment can degenerate.

This case which came to be widely and commonly known as the Vishaka’s Case was to change the judicial landscape of the country forever by ushering in the age of courts stepping in to fill a legislative vacuum. Prior to this judgment, the Supreme Court had been reluctant to step into the domain of lawmaking and had deemed it more appropriate to leave it to the legislature to step in to do the needful.

In Vishaka’s Case, the Supreme Court took serious note of the urgency for safeguards by an alternative mechanism in the absence of legislative measures governing sexual harassment at work-places. The Supreme Court by its judgment dated August 13, 1997, laid down the detailed framework in the form of ‘Guidelines and Norms’ for specific protection of women from sexual harassment in workplaces. The Guidelines and Norms were to be followed by employers in work places as well as other responsible persons or institutions to ensure the prevention of sexual harassment of women.

Despite these categorical Guidelines, several cases of sexual harassment from different parts of the country started landing up at the Supreme Court’s doorstep highlighting the lack of effective implementation of the Guidelines issued in the Vishaka’s Case.

The most significant one was that of Medha Kotwal Lele’s Case. Several Orders came to be passed by the Supreme Court after issuing notices to all States Governments. During the hearings, the Supreme Court took note of the steps taken by the State Governments for implementation of the Guidelines and setting up the required regulatory framework which is reflected in the final judgment of this case dated October 19, 2012.

While disposing of the petition through this judgment, the Supreme Court took the view that the existing laws, if necessary, should be revised and appropriate new laws ought to be enacted by Parliament and the State Legislatures. The Supreme Court proceeded to issue detailed directions (supplementing the Guidelines in Vishaka’s case) to be operative until legislative enactment on the subject was put into place. Thereafter, the Supreme Court handed over the baton for looking into cases of non-compliance or non-adherence to the Guidelines in the hands of the respective High Courts.

Around the same time, i.e, on September 3, 2012, and February 26,  2013, the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Bill was passed by the Lok Sabha and Rajya Sabha respectively. After receiving the Presidential assent, the Act came into force on December 9, 2013.

Since its enactment, the Act has been in force for almost five years now. The Act provides for a detailed framework to deal with complaints of sexual harassment at workplace in the form of complaint committee, the procedure for dealing with complaints and the determination of compensation. The Act also stipulates duties of an employer and the penalties for non-compliance with the provisions of the Act.

Despite the elaborate scheme, the complaints of sexual harassment continue to grow. The problem does not lie with the Act. It lies in its implementation. Several organizations who employ more than the minimum required 10 or more employees do not have the internal committees in place to deal with the complaints. Wherever the committees have been set up, there is no proper functioning or awareness. This extends to the local committees which are to be set up under the Act. The Order of the Supreme Court discussed above is the tell-tale indication.

The allegations of sexual harassment have far-reaching consequences; both for the accused employee and the employer organization. In case, the accused employee belongs to the higher echelons of the organization, the complainant employee finds the situation even more daunting. One of the major challenges faced by a complainant employee is that the committee sometimes acts like a judge in its own cause. This happens because of two key reasons. Firstly, the members know the accused employee personally and closely. Secondly, the fear of backlash both within and outside the organization.

In the event that a complaint ends up being considered, the approach of the committee sometimes poses a great obstacle. The primary reason is that in most organizations, the Human Resource department is entrusted with the responsibility of formation and functioning of the committee.

The expertise to handle such complaints is found lacking – both in terms dealing with the high stakes involved in a complaint of this nature and the ability to function as a fact-finding body. In most organizations, the committee is viewed as necessary evil – a classic case of compulsion over commitment to the cause. More often than not, an employee is left with no alternative but to switch organizations rather than go through the ordeal of seeing a complaint to its logical conclusion.

One of the ways to overcome these challenges is to overhaul the complaint redressal mechanism by substituting the internal and local committees with a more empowered authority in the form of a Commission or a Special Court. Such a forum will be more committed, responsive and sensitive to the cause. In addition, the complaint redressal should be made time bound (as in the case of other offences against women) in order to instil confidence in the system. These measures will go a long way in carrying out the mandate of the judgment in Vishaka’s Case in its true letter and spirit.

The author is a lawyer practising in the Supreme Court and is a keen observer of law, polity, and judicial process.