1) Facts of the Case
The
litigation resulted from a brutal gang rape of publicly employed social worker
in a village in Rajasthan during the course of her employment. The petitioners
bringing the action were various social activists and non-governmental
organisations. The primary basis
of bringing such
an action to
the Supreme Court
in India was
to find suitable methods for the realisation of the
true concept of “gender equality” in the workplace for women. In turn, the
prevention of sexual harassment of women would be addressed by applying the
judicial process.
Under
Article 32 of the Indian Constitution, an action was filed in order to
establish the enforcement of the
fundamental rights relating
to the women
in the workplace. In particular it sought to
establish the enforcement of Articles 14, 15, 19(1)(g) and 21 of the
Constitution of India and Articles 11 and 24 of the Convention on the
Elimination of All Forms of Discrimination against Women.
2) Law
Constitution
of India
• Article 14
(the right to equality)
• Article 15
(the right to non-discrimination)
• Article
19(1)(g) (the right to practise one’s profession)
• Article 21
(the right to life)
Convention
on the Elimination of All Forms of Discrimination against Women (CEDAW)
• Article 11
([State] takes all appropriate measures to eliminate discrimination against
women in the field of employment)
• Article
24 ([State shall]
undertake to adopt
all necessary measures
at the national level aimed at
achieving the full realization).
3) Decision
In disposing
of the writ petition with directions, it was held that:
“The fundamental
right to carry
on any occupation,
trade or profession
depends on the availability of a ‘safe’ working
environment. The right to life means life with dignity. The primary responsibility for
ensuring such safety
and dignity through suitable
legislation, and the creation
of a mechanism
for its enforcement,
belongs to the
legislature and the executive. When, however, instances of
sexual harassment resulting in violations of Arts 14, 19 and 21 are brought
under Art 32, effective redress requires that some guidelines for the protection
of these rights should be laid down to fill the legislative vacuum.
In light of
these deliberations, the Court outlined guidelines which were to be observed in order
to enforce the
rights of gender
equality and to
prevent discrimination for women in the workplace.
The
GUIDELINES and NORMS prescribed herein are as under:-
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 of women
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:
1. Duty of the
Employer or other responsible persons in work places and other institutions:
It shall be
the duty of the employer or other responsible persons in work places or other
institutions to prevent or deter the commission of acts of sexual harassment
and to provide the procedures for the resolution, settlement or prosecution of
acts of sexual harassment by taking all steps required.
2. Definition:
For this
purpose, sexual harassment includes such unwelcome sexually determined
behaviour (whether
directly or by implication) as:
a) physical
contact and advances;
b) a demand
or request for sexual favours;
c) sexually
coloured remarks;
d) showing
pornography;
e) any other unwelcome physical verbal or
non-verbal conduct of sexual nature.
Where any of these acts is committed in
circumstances where under the victim
of such conduct has a reasonable apprehension that in relation to the 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 consequences might be visited if the victim does not consent
to the conduct in question or raises any objection thereto.
3.
Preventive Steps:
All
employers or persons in charge of work place 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:
(a) Express
prohibition of sexual harassment as defined above at the work place should be
notified, published and circulated in appropriate ways.
(b) 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.
(c) 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.
(d)
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 employee woman should have reasonable
grounds to believe that she is disadvantaged in connection with her employment.
4. Criminal
Proceedings:
Where such
conduct amounts to a 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 victimized 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.
5.
Disciplinary Action:
Where such
conduct amounts to mis-conduct in employment as defined by the relevant service
rules, appropriate disciplinary action should be initiated by the employer in
accordance with those rules.
6. 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
organization for redress of the complaint made by the victim. Such complaint
mechanism should ensure time bound treatment of complaints.
7.
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 member should be
women. Further, to prevent the possibility of any under 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.
8. Workers'
Initiative:
Employees
should be allowed to raise issues of sexual harassment at workers meeting and
in other appropriate forum and it should be affirmatively discussed in
Employer-Employee Meetings.
9.
Awareness:
Awareness of
the rights of female employees in this regard should be created in particular
by prominently notifying the guidelines (and appropriate legislation when
enacted on the subject) in suitable manner.
10. Where
sexual harassment occurs as a result of an act or omission by any third party
or outsider. The employer and person in charge will take all steps necessary
and reasonable to assist the affected person in terms of support and preventive
action.
11. The
Central/State Governments are requested 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.
12. These
guidelines will not prejudice any rights available under the Protection of
Human Rights Act, 1993.
Accordingly,
we direct that the above guidelines and norms would be strictly observed in all
work places for the preservation and enforcement of the right to gender
equality of the working women.
These
directions would be binding and enforceable in law under Article 141 of the Constitution of India until suitable legislation
is enacted to occupy the field.
Now there is a suitable legislation and act was formed by the government in 2013 which includes all above given guidelines in depth which have effect on this act.
Please Refer:-
Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act 2013.
S
Stay tuned for Next Legal update followed by the Images on Sexual Harassment at Workplace. (PART III)
Reference:- Internet
