by Madhooja Mulay

As more women join the Indian workforce the judiciary has recognized the need to address sexual harassment in the work place. Although India does not have a specific law to protect individuals from sexual harassment in the work place, individuals enjoy certain fundamental rights under the Indian Constitution, such as the right to equality before law (Article 14), freedom of speech (Article 19), and protection of life and personal liberty (Article 21). Over ten years ago, in Vishakha v. State of Rajasthan, AIR 1997 SC 3011, the Supreme Court of India, in a welcome form of judicial activism, applied the provisions of the Constitution to establish a set of guidelines with regard to sexual harassment at the work place. This case involved the brutal gang rape at the work place of a social worker, who tried to prevent a child marriage as part of her duties with the Women Development Programme. The feudal patriarchs became enraged, decided to teach the social worker a lesson, and raped her repeatedly. The social worker did not receive justice before the Rajasthan High Court and the rapists, “educated and upper caste affluent men,” were freed. Vishakha, a women’s rights organization, filed a public interest litigation in the Supreme Court of India. The Court found that the social worker was raped while she was working in her role as a social worker and thus had been raped at the work place. Based on this finding the Court established guidelines regarding sexual harassment, to be followed at all work places. The guidelines were formed on the basis of gender equality and the fundamental rights guaranteed by the Constitution, as well as international conventions and norms.

All employers are required to adhere to the guidelines announced in Vishakha. However, in the absence of a regulatory body or enforcement mechanism it is difficult to monitor compliance. The guidelines require employers to form a complaints committee to address sexual harassment of female employees. Additionally, the guidelines state that if an act of sexual harassment also amounts to a specific offence under the Indian Penal Code (IPC) or any other law, the employer is obligated to initiate an appropriate action in accordance with the law, primarily by filing a complaint with the appropriate authority. In addition to protection under the guidelines, victims of sexual harassment may initiate criminal proceedings against the offender under the IPC.

Important Features of the Guidelines

 Employers are required to establish a complaints committee chaired by a woman with at least 50% of committee members being women.

• As soon as there is an incident of sexual harassment the victim should file a complaint with the complaints committee supported by a written report of the incident. The victim should ask for a receipt or a copy of the report.
• Employers must ensure confidentiality of the complaint and vigilantly monitor victimization of or discrimination against the complainant.
• The complaints committee is required to initiate an inquiry and, when it is established that the perpetrator was guilty of sexual harassment, impose immediate and appropriate disciplinary action.
• The complaints committee is required to prepare and submit to the government an annual report regarding its functions and a list of complaints filed with it along with a description of steps taken by the Committee to address the complaints.
• Employees must raise sexual harassment issues at employee meetings, employer-employee meetings, and other appropriate forums, and, if necessary, lobby to establish a complaints committee if the employer has failed to do so.

Vishakha was re-affirmed recently in D.S Grewal v. Vimmi Joshi and Ors, (2009) 2 SCC 210, where the Supreme Court ordered the employer to follow the guidelines and, in an unprecedented move, awarded costs of litigation to the victim of harassment. There is a bill pending before Parliament, the Protection of Women Against Sexual Harassment at Workplace Bill, 2007. However, until the bill becomes law, the guidelines continue to be treated as the law, even though they are not enforceable in the same manner as a statute.

Madhooja Mulay is an associate with  LawQuest and is admitted to the Bar Council of Maharashtra and Goa. She can be reached at madhooja@lawquestinternational.com.