The Supreme Cort on Sexual harassment of woman at the work place

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By A. Romen Kumar Singh

“Today, not tomorrow, we men and women must declare war on injustice to woman kind by demand for real partnership and special provisions. Women are not alone. Men must share the concern because it is a battle against the Socio-economic exploitation”.
– JUSTICE KRISHNA IYER.

The Indian woman is still unfree, exploited, sold as commodity, liquidated without the law and held hostage by an exploitative combination. Gender injustice meted to the weaker sex is a disturbing concern of all Indians, men and women, politicians, professionals and people with a social conscience, and we must battle for the cause of Freedom and Development of the feminine sector as an integral and strategic part of the struggle for human justice. No society can be free, fair or just until its women enjoy freedom and justice and opportunity for unfoldment of their full potential.

The Constitutional imperatives of equality of status and opportunity, Social justice, dignity and personality for the Indian woman remain mere paper rhetoric and fatuously futuristic. So long as the raw realities of life contradict with bleeding wounds and burnt flesh, daily humiliation on the road, inside the bus, public places etc. and legal discrimination, the fighting creed is writ into the Founding Deed. Life is the touch stone of law, and not printed articles in Paramount charter. The myth is that equality of the sexes is guaranteed by the state. The truth is that inequality and indignity vis a vis the reality faced by women are writ so large as to mar the veracity of Fundamental Rights. Despite laying down of the Guide Lines by the Supreme Court to prevent sexual Harassment of women at work place, the belief of the judiciary has not been fully achieved. The Vishaka judgement, (Vishaka & others V. State of Rajasthan, (1997)6 SCC 241; AIR 1997 S.C. 3011) came on 13.8.1997. Yet, 15 years after the guidelines were laid down by the Supreme Court for the prevention and redressal of Sexual harassment and their due compliance under Article 141 of the constitution of India until such time appropriate legislation was enacted by the Parliament, many women still struggle to have their most basic rights protected at workplaces. The statutory Law is not in place as the protection of women Against sexual Harassment at Work Place Bill, 2010 is still pending in Parliament though Lok Sabha is said to have passed that Bill in the first week of September, 2012. The belief of the Constitution Framers in fairness and justice for women is yet to be fully achieved at the workplace in the country.

In the Medha Katwal Lele V. Union of India, A.I.R. 2013 S.C. 93 a bench of three judges of the Supreme Court held at Page 101 Para 15 that “As a largest democracy in the world, we have to combat violence against women. We are of the considered view that the existing laws, if necessary, be revised and appropriate new laws be enacted by Parliament and the State Legislatures to protect women from any form of indecency indignity and disrespect at all places (in their homes as well as outside), prevent all forms of violence-domestic violence, Sexual assault, Sexual harassment at the workplace, etc. – and provide new initiatives for education and advancement of women and girls in all spheres of life. After all, they have limitless potential. Lip service, hollow statements and inert and inadequate laws with sloppy enforcement are not enough for true and genuine upliftment of our half most precious population – the women.”

The Supreme Court in the case (Supra) at Page-101 Para 16 held the “view that guidelines in Vishaka should not remain symbolic and the following further directions are necessary until legislative enactment on the subject is in place.” It said:

i ) The States and Union Territories which have not yet carried out adequate and appropriate amendments in their respective Civil Services Conduct Rules (By whatever name these Rules are called) shall do so within two months from to-day by providing that the report of the Complaints Committee shall be deemed to be an inquiry report in a disciplinary action under such Civil Service Conduct Rules. In other words, the disciplinary authority shall treat the report / findings etc. of the Complaints Committee as the findings in a disciplinary inquiry against the delinquent employee and shall act on such report accordingly. The findings and report of the Complaints Committee shall not be treated as a mere preliminary investigation or inquiry leading to a disciplinary action but shall be treated as a finding / report in an inquiry into the misconduct of the delinquent.

ii) The states and Union Territories which have not carried out amendments in the Industrial Employment (standing orders) Rules shall now carry out amendments on the same lines as noted above in clause (i) within two months.

iii) The States and Union Territories shall form adequate number of Complaints Committee so as to ensure that they function at Taluka level, District level and State level. Those States and/or Union Territories which have formed only one Committee for the entire State shall now formed adequate number of Complaints Committees within two months from to-day. Each of such complaints Committees shall be headed by a woman and as far as possible in such committees and independent member shall be associated.

iv) The State functionaries and private and public sector undertakings/ organisations/bodies/institutions etc. shall put in place sufficient mechanism to ensure full implementation of the Vishaka Guidelines and further provide that if the alleged harasser is found guilty, the complainant – victim is not forced to work with/under such harasser and where appropriate and possible the alleged harasser should be transferred. Further provision should be made that harassment and intimidation of witnesses and the complainants shall be met with severe disciplinary action.

v) The Bar Council of India shall ensure that all bar associations in the country and persons registered with the State Bar Councils follow the Vishaka Guidelines. Similarly, Medical Council of India, Council of Architectures Institute of Charterred Accountants, Institute of Company Secretaries and other Statutory Institutes shall ensure that the organisations, bodies, associations, institutions and persons registered/affiliated with them follow the guidelines laid down by Vishaka. To achieve this, necessary instructions/circulars shall be issued by all the statutory bodies such as Bar Council of India, Medical Council of India, Council of architecture, Institute of Company Secretaries within two months from today. On receipt of any complaint of sexual harassment at any of the places referred to above the same shall be dealt with by statutory bodies in accordance with the Vishaka Guidelines and the guidelines in the present order.

The Supreme Court in the case (Supra) at Para 17 held: “We are of the view that if there is any non-compliance or non-adherence to the Vishaka guidelines, orders of this court following Vishaka and above directions, it will be open to the aggrieved persons to approach the respective High Courts. The High Court of such State would be in better position to effectively consider the grievances raised in that regard.

VISHAKA GUIDELINES

In Vishaka and others v. State of Rajasthan, (1997)6 SCC 241 a bench of 3 Judges has laid down the following guidelines and norms at Page 252 Para 17 as:

Having regard to the definition of “human rights” in Section 2(d) of the Protection of Human Rights Act, 1993, taking note of the fact that the present civil and penal laws in India do not adequately provide for specific protection from sexual harassment in work places and that enactment of such legislation will take considerable time, it is necessary and expedient for employers in work places as well as other responsible persons or institutions to observe certain guidelines to ensure the prevention of Sexual harassment of women.

– It shall be the duty of the employer or other responsible persons in workplaces or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolutions settlement or prosecution of acts of sexual harassment by taking all steps required.

DEFINITION: For this purpose, 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.

Where any of these acts is committed in circumstances whereunder the victim of such conduct has a reasonable apprehension that in relation to be victim’s employment or work whether she is drawing salary, or honorarium or voluntary, whether in government, public or private enterprise such conduct can be humiliating and may constitute a health and safety problem. It is discriminatory for instance when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work including recruiting or promotion or when it creates a hostile work environment. Adverse conduct in question may be visited if the victim does not consent to the conduct in question or raises any objection thereto.

PREVENTIVE STEPS

All employers or persons in charge of workplace whether in the public or private sector should take appropriate steps to prevent sexual harassment without prejudice to the generality of this obligation they should take the following steps:

– Express prohibition of sexual harassment as defined above at the work place should be notified, published and circulated in appropriate ways.

– The rules/regulations of government and public sector bodies relating to conduct and discipline should include rules/regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender.

– As regards private employers steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders)Act, 1946.

– Appropriate work conditions should be provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at work places and no woman employee should have reasonable grounds to believe that she is disadvantaged in connection with her employment.

CRIMINAL PROCEEDINGS:

Where such conduct amounts to specific offence under the Indian Penal Code or under any other law, the employer shall initiate appropriate action in accordance with law by making a complaint with the appropriate authority. In particular, it should ensure that victims or witnesses are not victimised or discriminated against while dealing with complaints of sexual harassment. The victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer.

DISCIPLINARY ACTION:

Where such conduct amounts to misconduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules.

COMPLAINT MECHANISM:

Whether or not such conduct constitutes an offence under law or a breach of the service rules, an appropriate complaint mechanism should be created in the employer’s organisation for redress of the complaint made by the victim. Such complaint mechanism should ensure time-bound treatment of complaints.

COMPLAINTS COMMITTEE:

The complaint mechanism, referred to in(6) above, should be adequate to provide, where necessary, a complaints committee, a special counsellor or other support service, including the maintenance of confidentiality.

The complaints committee should be headed by a woman and not less than half of its members should be women. Further, to prevent the possibility of an undue pressure or influence from senior levels, such complaints committee should involve a third party either NGO or other body who is familiar with the issue of sexual harassment. The complaints committee must make an annual report to the Government Department Concerned of the complaints and action taken by them.

The employers and person-in-charge will also report on the compliance with the aforesaid guidelines including on the reports of the complaints committee to the Government Department.

WORKERS’ INITIATIVE:

Employees should be allowed to raise issue of sexual harassment at workers’ meeting and in other appropriate forum and it should be affirmatively discussed in employer-employee meetings. Awareness of the rights of female employees in this regard should be created in particular to prominently notifying the guidelines (and appropriate legislation when enacted on the subject) in a suitable manner. Where sexual harassment occurs as a result of an act or omission by any third party or outsider, the employer and the person-in-charge will take all steps necessary and reasonable to assist the affected person in terms of support and preventive action. The Central/State Governments are to consider adopting suitable measures including legislation to ensure that the guidelines laid down by this order are also observed by the employers in private sector.

AMENDMENT IN CENTRAL CIVIL SERVICES (CONDUCT) RULES, 1964

Following the directives of the Apex Court, the Central Government has amended the Central Civil Services (Conduct) Rules, 1964 and inserted the following provisions as Rule 3-C.

3-C. PROHIBITION OF SEXUAL HARASSMENT OF WORKING WOMEN.

– No Government servant shall indulge in any act of sexual harassment of any woman at her workplace.

– Every Government servant who is in-charge of a work place shall take appropriate steps to prevent sexual harassment to any woman at such work place.

Explanation:- For the purpose of this rule, “Sexual harassment” includes such unwelcome sexually determined behaviour, whether directly or otherwise, as – Physical contact and advance; Demand or request for sexual favours; Sexually coloured remarks;Showing any pornography or any other unwelcome physical, verbal or non-verbal conduct of a sexual nature.

Complying with the directives of the Supreme Court, the Central Government has amended the Central Civil Service (Classification, Control and Appeal) Rules, 1965 and has inserted the following proviso to Rule 14(2):

“Provided that where there is a complaint of sexual harassment within the meaning of Rule 3-C of the Central Civil Service (Conduct) Rules, 1964, the complaints Committee established in each Ministry or Department or Office for inquiring into such complaints, shall be deemed to be the Inquiring Authority appointed by the Disciplinary Authority for the purpose of these rules and the complaints Committee shall hold, if separate procedure has not been prescribed for the complaints committee for holding the inquiry into the complaints of sexual harassment, the inquiry as far as practicable in accordance with the procedure laid down in these rules.

Explanation – where the Disciplinary Authority itself holds the inquiry, any reference in sub-rule(9) to sub-rule(20) and sub-rule(22) to the Inquiry Authority shall be construed as a reference to the Disciplinary Authority. It has been expressly mentioned in Rule 3 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 that there rules shall apply to every Government servant including every civilian Government servant in the Defence services, but shall not apply to :- any Railway servant, as defined in Rule 102 of Volume-1 of the Indian Railways Establishment Code, any member of the All India Services, any person in casual employment, any person subject to discharge from service on less than one month’s notice, any person for whom special provision is made, in respect of matters covered by these rules, by or under any law for the time being in force or by or under any agreement entered into by or with the previous approval of the President before or after the commencement of these rules, in regard to matters covered by such special provisions.

In Mewa Ram Ramcharan V. United Provinces, A.I.R. 1954 Allahabad 487, the Allahabad High Court held that the procedure provided in Civil Services (classification, control and Appeal) Rules would not therefore, apply to the departmental trials under Section 7 of the Police Act and they will be governed by the Police Act or by any regulations framed under the Police Act. Again, the Delhi High Court in a case as reported in Rajeshwar Singh V. Union of India, (1989)11 ATLT 621(HC) held that employees governed by CISF Rules, 1969 can not be charge sheeted under the Central Civil Services (Classification Control and Appeal) Rules.

The legal position as discussed above makes it abundantly clear that subordinate ranks of police force from the rank of constable up to the Inspector are to be governed by Section 7 of the Police Act, 1861 and Rules framed there under for dealing with departmentally. Similar amendment as inserted in the Central Civil Services (Classification, Control and Appeal) Rules, proviso to Rule 14, is also required to be inserted in the Police Rules at Police Manuals not only for preventing Sexual harassment of women at the work place in compliance with the directives of the Supreme Court of India so that Disciplinary Authority can act on the reports of the complaints committee but also for uniformly implementing the directives of the Supreme Court.

CONCLUSION:

Brave new India must make every woman free spiritually, socially, economically, culturally, politically so that the issue of sexual harassment is erased from the society once for all. Such is the imperative of our independence; such is the commitment to the constitution. Freedom is indivisible as between man and woman. Either both or neither. Then only can woman power break its promethean chains and emerge unbound through law.

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