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Medha Kotwal Lele vs. Union of India and others: A petition against sexual harassment of women at the workplace

Date : 16/07/2010

The petition seeks the implementation of the Vishaka Guidelines by the central and state Governments of India. The Vishaka Guidelines are guidelines against sexual harassment of women in private and public sector workplaces, issued by the Supreme Court of India in Vishaka & others vs. State of Rajasthan & others in 1997. However, there continue to be numerous instances of harassment in various private workplaces such as educational institutions, Bar Associations, Medical Councils and all other professional and technical associations, where compliance to the Guidelines do not exist. The present PIL aims to force the Government to enact comprehensive legislation, which will ensure a safe, harassment and violence free working environment for all women in India.

The incidents of sexual harassment of women in their place of work have been on the increase in India since the 1980’s. These frequent violations of women’s rights have taken place in both public and private sector workplaces and institutions by male colleagues or superiors. The incidents have continued despite the landmark Supreme Court decision that issued “Vishaka” Guidelines on the matter. The Guidelines expressly prohibit sexual harassment at the workplace, outline criminal punishment for offenders and provide Guidelines to prevent hostile working environments. Furthermore, a complaints committee must be set up when harassment does take place. A woman must head the committee and half its members must also comprise of women. The committee must also involve a NGO that specialises in women’s rights and sexual harassment.

The petitioners Dr. Medha Kotwal Lele, coordinator of Aalochana, a centre for documentation and research on women and other women s rights groups have documented incidents of sexual harassment of women where the Vishaka Guidelines and Supreme Court judgment were completely ignored. One case was that of a master’s student at the University of Baroda who was allegedly sexually harassed by her guide since 1995. On her complaint the Vice-Chancellor of the University appointed a committee to investigate the charges. However the procedures followed were not in conformity with the Guidelines outlined by the Supreme Court. No women’s NGO, familiar with the issue of sexual harassment was involved in the investigation as required by the Guidelines and the investigation conducted by the Committee was not run with a view to expose the truth but rather to defend the status quo in the most anti-woman fashion. Furthermore, delays in dealing with complaint lead to continued workplace harassment, directed at the victim.

On a wider country-wide level, the petitioners also note the complaints committees, instead of being active and influential are often formed as an ad-hoc measure, only after harassment has taken place. This is in contravention of the Guidelines, which sees the committee as also playing a preventative role with regard to sexual harassment. The state Governments have also failed to take effective steps for prevention and redress of complaints of sexual harassment in the private sector under the Industrial Employment (Standing Orders) Act, 1946. There are also numerous instances of harassment in various private workplaces such as educational institutions, Bar Associations, Medical Councils and all other professional and technical associations, where compliance to the Guidelines do not exist.

Women have the right to work in a secure and safe environment and it should be the duty of all employers enforced by legislation by Government to provide such an environment for all female employees. Moreover if that environment is threatened by sexual harassment the Government has the duty to legislate for prosecution of the violator and redress for the victim as per the Supreme Court Guidelines. The Government of India has a Constitutional mandate to guarantee gender equality under articles 14, 15 and 16 of the Constitution. India is also a signatory of the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW), which also guarantees gender equality and non-discrimination, including sexual harassment in the workplace.

Despite this, India has no law against sexual harassment. In the interim, the Supreme Court specifically stated that the Vishaka Guidelines were to be strictly observed in all workplaces for the preservation and enforcement of gender equality and furthermore they would be binding and enforceable in law until Government enacted suitable legislation. However it is clear that the Government of India has failed in its responsibility to implement these Guidelines.

As such the petitioners call for the state Governments to fully implement the Vishaka Guidelines in all public and private workplaces by introducing thorough legislation that will ensure a safe working environment for women.

The Supreme Court has admitted the writ and ordered all State Governments to file affidavits regarding all measures taken by them to comply with the Vishaka Guidelines in August 2000. However the affidavits returned by the State were incomplete, showing they had only made cosmetic changes and very few steps had been taken to implement the Guidelines in letter and spirit. The state Governments also kept repeating that new legislation was being drafted. While draft legislation was eventually produced it had huge shortcomings. In any case to date no law has been passed and still the Guidelines have not been implemented.

The Supreme Court has made a number of orders in this case. In April 2004 in response to the petitioners’ contention that the complaint committees were ineffective, the Court held that a complaint committee’s report “shall be deemed to be an inquiry report,” based on which disciplinary action can be taken.

In January 2006 the Supreme Court ordered the chief secretaries of each state to appoint a state-level officer who is in charge of and concerned with the welfare of women in each state so they may coordinate the implementation of the Guidelines, particularly in relation to the setting up of complaint committees. The Court further ordered the Labour Commissioner of each state to take steps to ensure that the required committees are established in factories, shops and commercial establishments, where the Court noted the Guidelines were not being complied with.

The petition is still on going. While the Supreme Court orders have been positive, to date the response of the state Governments has not. It is hoped that the final outcome of this petition will lead to the full implementation of the Vishaka Guidelines and force the Governments to introduce comprehensive legislation that allows for prosecution of the violators of sexual harassment, full redress for the victim and proper monitoring of all public and private employers to ensure a safe, harassment and violence free working environment for all women in India.

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