Mukesh Batra | Empowering Goa
Depriving Women of Right to Equality, Life and Liberty
- A terse yet a humble question. Have you ever been harassed at workplace or suffered any sexual advances by your colleague, a male friend, accomplice or the employer himself. Ladies and Gentlemen, more often than not, we in our daily drudgery, come across myriad of cases and events about sexual harassment of women. We hear, we read, we frown, we brood and then leave it to the police and the courts to do the rest and the cases are found languishing for years seeking fructification of justice. The victim is threatened, witnesses are lured, and all the possible attempts are made to seek the relief available under the plausible axiom of 4C of judiciary i.e., convince, confide, confuse or corrupt the judicial system.
- Ladies today have embarked into various pursuits in their lives. To harness the same, they step out of home, travel in public transport, go to college, go to work and so on. Many of the girls, ladies and women are subject to sexual harassment at their respective area, some of them are reported and mostly succumbing to the dire consequences of humiliation, loss of job, threat of various kinds. There have been many cases in sight involving none less than a Supreme Court judge and his intern, Tarun Tejpal case and most recent TVF CEO Arunabh Kumar case. I therefore took the initiative to pen down what is the background, what it implies, what is the legal position and what is the procedural recourse.
- It may sound platitudinous to say so but the employers for the obvious reasons have a vested interests in their business and its prospects but also cannot lose sight of the interests of their employees especially women gender from safety at workplace and if there is any injustice, the ill should unhesitatingly and hurriedly suffer surgery so that no curial wrong is done. It is pertinent to mention that all the workplaces in India are mandated by law to provide a safe and secure working environment free from sexual harassment.
- The genesis of the subject “Sexual harassment of women at workplace” stemmed in 1992 in Rajasthan wherein one lady, Bhanwari Devi was engaged by the state towards prevention of child marriages. During the course of her work, she prevented marriage of one year old girl that attracted resentment and harassment from the men of that community. Not just that, in the act of revenge, she was gang raped by those men. Based on this case, a PIL was filed by Vishska and other women groups and NGOs against the State of Rajasthan and Union of India for enforcement of the fundamental rights of working women under Articles 14, 19 & 21 of the Constitution. The Honourable Supreme Court in its Landmark judgement pronounced by a three judge division bench headed by the CJI, Late Chief Justice JS Verma, pronounced the judgement on 13 August 1997 also known as Vishaka guidelines. The citation reference is AIR 1997 SC 3011.
- What are the ambience and the amplitude, the desired effect and the direct object of the key provisions. The Honourable Supreme Court, in its judgement, brought out that each such incident results in violation of the fundamental rights of “Gender Equality” and the “Right to Life and Liberty”. It is clear violation of the rights under Articles 14, 15 and 21 of the Constitution. One of the logical consequences of such an incident is also the violation of the fundamental rights under Article 19 (1) (g) “to practice any profession or to carry out any occupation, trade or business”. Such violations therefore, attract the remedy under the Article 32 for the enforcement of these fundamental rights of women. This class action under Article 32 of the Constitution is for this reason. A writ of mandamus in such a siltation, if it needs to be effective, it needs to be accompanied by directions for prevention, as the violation of fundamental rights of this kind is a recurring phenomenon.
- In the sagacious words of Dr BR Ambedkar, Article 32 of the Constitution is the most important article without which the Constitution would be nullity and this is the very soul of the Constitution and very heart of it. The meaning and content of the fundamental rights guaranteed under the Constitution are of sufficient amplitude to compass all the facets of gender equality including prevention of sexual harassment or abuse. It is also settled that it is a fallacy to regard the fundamental rights as a gift from the state to its citizens. Individuals possess basic human rights independently of any Constitution by the fact that they are members of the human race. Part III of the Constitution does not confer fundamental rights but it confirms their existence and gives them protection. Right to life is much more than animal existence and vegetable subsistence.
- UN Convention on the Elimination of all forms of Discrimination against Women (CEDAW) was adopted by the UN General Assembly in 1979 and this was ratified by the Government of India on 09 July 1993. At the fourth World Conference on Women in Beijing, the Government of India also made an official commitment to formulate and operationalize a nation policy on women which will continuously guide and inform action at every level and at every sector to set up a Commission for Women’s Rights to act as a public defender of women’s human rights and to institutionalise a national level mechanism to monitor the implementation of the Platform for Action. In 2013, the Government of India notified Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act. As enshrined in the Constitution, “Equality of Status and Opportunity” must be secured for its citizens, equality of every person is guaranteed under the law as per the Article 14 of the constitution. A safe workplace is therefore a woman’s legal right. Indeed, the Constitutional Doctrine of Equality and personal liberty are contained in Articles 14, 15 and 21 of the Constitution. These Articles ensure a person’s right to the equal protection under the law, to live a life free from discrimination on any ground and to protection to life and personal liberty.
- In most of the cases, the victims fear facing disbelief, inaction, blame or professional retaliation, hostility of the employer, loss of job opportunity etc. They are often treated as trouble makers and with a negative desire to work with. The witnesses too are not spared. They are lured, threatened of dire consequences including life. As a result, in most of the cases, the justice is denied or deprived.
- As per the official data released, the work participation rate of women is around 25 percent in rural areas and 15 percent in unban areas and as 93 percent of the women are employed in the informal sector, they remain unprotected by laws. Hence, the Supreme Court in Vishaka case, placed the obligation on the institutions and the workplaces, be it public or private sector, and those in the position of responsibility, to uphold working women’s fundamental right to equality and dignity at workplace. The three key obligations were placed on the institutions to meet the standards and these are prohibition, prevention and redress.
- Who are aggrieved women. As per the enactment, they could be working, visiting place of work or student. The working women are domestic help, daily wager and probationer, intern, employed directly or through agent. The workplace could be any workplace in India owned by Indian or foreign company, be it organised or unorganised sectors such as Government organisations, private sector organisations, corporations, companies, institutes, trusts, hospitals, NGOs, educational institutions, corporate societies, service providers.
- What is sexual harassment. It could include anyone or more of the following unwelcoming acts or behaviour i.e., physical contact or advances, demand or request for sexual favours, making sexually coloured remarks, showing pornography, any other unwelcome verbal or non verbal conduct of a sexual nature.
Important and Crucial Suggestions for all Ladies
- Now the preventive Steps. All the employers of the work place whether in public or private sector should take appropriate steps to prevent sexual harassment without prejudice. The prohibition of sexual harassment should be expressly published and notified and circulated. The rules and regulations to this effect and the penalties against the offender should be notified. The private employers should take steps to include the prohibitions under the Industrial Employment (Standing Orders) Act 1946. Appropriate work conditions should be provided in respect of work, leisure, health and hygiene to ensure no hostile environment towards women at workplaces.
- The Complaint Mechanism. Wherever such a conduct constitutes and offence under the 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.
- The Complaints Committee. The complaint mechanism should be adequate to provide a complaints committee, a special counsellor or other support service including the maintenance of confidentiality. The Complaints Committee should be headed by a woman. Further to prevent the further possibility of any under pressure or influence from senior levels, such a complaint committee should have a third party, either an NGO or any other body that is familiar with the cases of sexual harassment. The Complaints Committee should make an annual report to the Government or the concerned authority on the compliance of the guidelines and the action taken on the cases reported.
- The Worker’s Initiative. The employees should be allowed to raise issues of sexual harassment at the worker’s meeting and in the appropriate forum and it should be affirmatively discussed in the employer-employee meetings. Awareness of the rights of the female employees in this regard should be created in particular by prominently notifying the guidelines in suitable manner. Where the sexual harassment takes place due to an act of omission by any third party or an 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 Criminal Proceedings. Where such an offence is committed, it amounts to an offence under the Indian Penal Code or any other law, the employer is to initiate steps to complain to the appropriate authority. The employer should ensure that the victim and the witnesses are not victimised or discriminated while dealing with the complaints of sexual harassment. The victim of the sexual harassment should have the option to seek transfer of the perpetrator or one self.
- To conclude, a week of hard work in sedulously gleaning of Statutes, the Constitution of India and the Supreme Court citations. I hope I have been able to cover the various facets pertaining to the ill and the evil called sexual harassment of Women at workplace.
- Lastly, thanks for joining in. Talk to you soon.