Sexual Harassment at Workplace: From Vishaka Guidelines to Act of 2013
This article titled ‘Sexual Harassment at Workplace: From Vishaka Guidelines to Act of 2013.’ is written by Akriti Raina and discusses the journey from the Vishaka Guidelines to the formation of the Act of 2013. I. Introduction Sexual Harassment at the workplace is a violation of women’s right to equality, bodily autonomy, free choice and life and liberty. It creates… Read More »
This article titled ‘Sexual Harassment at Workplace: From Vishaka Guidelines to Act of 2013.’ is written by Akriti Raina and discusses the journey from the Vishaka Guidelines to the formation of the Act of 2013.
Sexual Harassment at the workplace is a violation of women’s right to equality, bodily autonomy, free choice and life and liberty. It creates an insecure and hostile work environment thereby discouraging women’s participation in work and workplace-related activities. This in turn affects their social and economic empowerment and the goal of inclusive growth.
The desperate need to formulate a law related to sexual harassment at the workplace was first realized in the case of Bhanwari Devi. Therefore, with the objective to ensure the protection of women against workplace harassment the legislature formulated the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
II. The Vishaka case and further developments
The need for an act on the prevention of sexual harassment at the workplace was observed for the first time in Vishaka v. State of Rajasthan (1997). In this case, a social worker named Bhanwari Devi, working in a program to curb the evils of Child marriage attempted to stop child marriage. As a matter of revenge five men gang-raped her in 1992.
While trying to file a case against the same, the police department actively dissuaded them from doing the same and also subjected them to harsh treatment.
In the absence of any law providing measures to prevent and punish sexual harassment of working women, the Supreme Court in the exercise of its power under Article 32 of the Constitution framed the guidelines to be followed at the workplace or institutions until a law was enacted, known as the Vishaka Guidelines.
The court incorporated Articles 14, 15, 19(1)(g) and 21 of the Constitution and provisions of Convention on Elimination of All Forms of Discrimination against Women which was ratified by India in 1993.
In Apparel Export Promotion Council v. A.K. Chopra (1999), the Supreme Court reiterated the Vishakha Guidelines and observed that attempts of sexual harassment of women resulted in the violation of Articles 14 and 21 of the Constitution.
After 16 years of the Vishaka ruling, the Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act, 2013 was enacted with the objective of providing protection against sexual harassment of women at the workplace and for the prevention and redressal of complaints of sexual harassment and for matter connected therewith or incidental thereto (section 2(o)).
The Act defines sexual harassment as unwelcoming acts or behaviour (whether directly or by implication) namely- physical contact, demands or request for sexual favour, making sexually coloured remarks, showing pornography or any other unwelcoming physical, verbal or non-verbal conduct of sexual nature (section 2(n)).
The Delhi High Court in Shanta Kumar v. CSIR, 2017, held that
“Undoubtedly, physical contact or advances would constitute sexual harassment provided such physical contact is a part of the sexually determined behaviour…a physical contact which has no undertone of a sexual nature and is not occasioned by the gender of the complainant may not necessarily amount to sexual harassment.”
The Act under Section 3(2) also provides for the circumstances under which an act may amount to sexual harassment:
- Implied or explicit promise of preferential treatment in her employment; or
- The implied or explicit threat of detrimental treatment in her employment; or
- The implied or explicit threat about her present or future employment status; or
- Interference with her work or creating an intimidating or offensive or hostile work environment for her, or
- Humiliating treatment likely to affect health or safety.
The important feature of the Act as per section 4 is that it envisages the setting up of an Internal Complaints Committee (ICC) at every office of the organization or institution having more than 10 employees, to hear and redress complaints pertaining to sexual harassment.
Where the number of employees is less than 10, the Act provides for the setting up of a local committee in every district by the district officer. (Sections 5,6,7) The committee while enquiring about such complaints shall have the same power as vested in the civil courts.
In Ruchika Singh Chhabra v. M/s Air France India and Anr., 2018, the court directed that the ICC should be constituted in strict compliance with the requirements laid down by the law in the same respect.
An aggrieved woman can file a written complaint to the ICC from three months of the date of the incident and in case of a series of incidents, three months from the date of the last incident, which can be condoned by the committee further for up to three months. In case of physical or mental incapability of the aggrieved woman, her legal heirs or such other persons as described in Rule 6 of the Rules of 2013, can make a complaint.
On receiving a complaint the committee before initiating an enquiry, may take steps to settle the matter through conciliation. However, if it fails to settle the matter, it will move forward with the enquiry or if any terms of the settlement have arrived at the same have to be followed by the respondent. (Section 10)
Where both the parties are employees, the principle of natural justice is followed and both parties are given an opportunity to be heard and defend themselves. (Section 12). Further, an appeal can be filed against the recommendations of the committee before the court or tribunal within 90 days (Section 18).
There is also a prohibition on the publication of the identity of the aggrieved woman, the respondent, witnesses, contents of the complaint, enquiry proceedings or recommendations of the committee, except the information regarding the justice secured. (Section 16)
The Act also lays down certain duties of the employer and the District Officer under sections 19 and 20 respectively. These include creating awareness on issues related to sexual harassment at the workplace, sensitizing the employees about laws related to sexual harassment and the machinery in place, assisting the complaints committee in conducting the enquiry, acting upon the recommendations of the committee, monitoring the timely submission of reports of the committee etc.
Sexual harassment is yet another grave social evil that curbs the wings of women and cuts their flight towards utilizing their economic and career potential. Harassment at the workplace not only makes it unsafe for women to work freely but also becomes a reason for them leaving the place of employment. This is further aggravated by the lack of empathy from the employer and the organization.
The Act of 2013, thus, attempts to fill the loopholes in the way such issues are dealt with within the organizations. What it attempts to do is to create awareness and provide a mechanism in place to look at the concerns and complaints related to sexual harassment and reach an appropriate course of action to ensure safe working culture.
 Ibid., 3
 Ibid., 3
 Ibid., 3
 Ibid., 3
 Ibid., 3
 Ibid., 3