ANNIE MAMPILLY
NATIONAL UNIVERSITY OF ADVANCED LEGAL STUDIES (NUALS), KOCHI
(First Published on Volume 01 Issue 03, November 2016)
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ABSTRACT
"Frailty, thy name is woman", was the ignominy heaped upon women of Victorian Era by William Shakespeare in 'Hamlet'. This ignominy garners momentum even today. This submission lays focus on the long road from codification of a law to the practical implementation of the same with reference to the Vishaka Guidelines and the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
The work further concentrates on the lacunae in the guidelines laid by Vishaka. Though the guidelines were praised to be impeccable and to be an ideal codification, time proved the contrary. A decade after we saw the change of a millennium, the lame law with regard to practical implementation was brought into light and the same was whittled down by Medha Kotwal Lele case and the Nirbhaya case.
It would be pertinent to note that the Nirbhaya case triggered enormous public outrage. There was hue and cry at the nook and corner of the country against the then subsisting law. It was followed by the issuance of an Ordinance amending the parameters of the Criminal law. This raises a legitimate question on the public pressure impact on judgments. Hence the same occupies the next segment of the paper. A mention of the recent cases and the author’s point of view winds up the Commentary.
INTRODUCTION
"Frailty, thy name is woman", was the ignominy heaped upon the women of Victorian Era by William Shakespeare in 'Hamlet'. This ignominy garners momentum even today. This submission lays focus on the long road from codification of a law to the practical implementation of the same with reference to the Vishaka Guidelines and the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. Vishaka v. State of Rajasthan[1] is popularly known as the case against sexual harassment at workplace on account of the dozen of guidelines laid down by the Hon’ble Supreme Court for the protection of women from sexual harassment at workplace. The guidelines amassed widespread attention and appreciation across the length and breadth of the Country. The scrutiny of certain instances that followed and the Medha Kotwal Lele case judgment evidentially substantiates that the distance from law confined to paper to its practical implementation is immense. The Vishaka guidelines praised to be effective and efficient eventually proved to be defective and deficient as they were hardly implemented.
The impetus of this Public Interest Litigation the incident of a heinous and brutal gang rape committed on a social worker, Bhanwari Devi in front of her husband at Rajasthan. Years later, in about 2011, news alleging that the said Bhanwari Devi was abducted, she was murdered etc. sprout out. However, the truth still remains as an unsolved mystery. This clearly implicates that the Court was unable to protect Bhanwari Devi, the real impetus of Vishaka judgment in spite of delivering mandatory guidelines which had binding effect all over the nation. It is at this juncture that the analysis of the road from codification to implementation becomes prominent.
THE EFFICIENT AND EFFECTIVE SPECTRUM
The efficacy of Vishaka guidelines can be inferred from three dimensions. At the outset, the definition of sexual harassment was conferred a better definition. As per the guidelines, it is the facet of ‘unwelcomeness’ which holds the key to determining sexual harassment i.e. impact of such actions on the recipient is more relevant than intent of the perpetrator.
Vishaka’s most unique innovation was Complaints Committee, an internal complaints mechanism.[2] This is because, the guidelines mandated that all workplaces should set up a redress committee chaired by a woman, having 50% women members. It also requires the presence of an external third party familiar with the issue of sexual harassment. Thus, lion share involvement of woman in the committee guarantees the victim an opportunity to open up their mind without embarrassment. Mandatory presence of an external third party curbs undue top-level influences. Internal mechanism saves the victim from the complexities of the legal procedure and at the same time from social ostracism as there are procedures for settlement also.
The third noteworthy aspect of the Vishaka Guidelines is that it dictates the employer’s duty. The primary responsibility to effectively prevent sexual harassment at work places by issuing appropriate directions, prescribed in Vishaka lies on the shoulders of the employer. It brings to light those incidents which might have been unreported otherwise.
Thus in a nutshell, the Vishaka guidelines attempts to curb the victimization of victims. Earlier, victim had to tolerate the presence of the harasser at workplace and even risk her job.[3] But according to the present guideline victims can seek the transfer of perpetrator or their own transfer.
Another success of the Vishaka guidelines was that, a number of amendments and initiatives followed. It encompasses of inter alia:
· Sec.3C[4] was added in The Railway Services (Conduct) Rules, 1966,[5]The Central Civil Services (Conduct) Rules, 1964[6]
· Amended Industrial Employment (Standing Orders) Central Rules, 1946 to ensure the constitution of Complaint Committee in established in each establishment.
· Ministry of Women and Child Development Constituted the High Level Committee to study the Status of Women and also initiated a bill.[7]
· Complaints Committee & Women’s Cell is constituted in Ministry of Power,[8] Ministry of Coal,[9] Ministry of Mines[10] etc.
· NHRC succeeded in furnishing victims of sexual harassment with adequate compensation[11] and other remedies.[12]
THE DEFECTIVE AND DEFICIENT MAGNITUTE
When moving from the guidelines laid down to the guidelines implemented the defective magnitude displays its large boundaries. Firstly, the nature of the internal complaints committee mechanism reminds the saying ‘the crying baby gets its milk.’
The very quintessence of Vishaka guidelines lies in the constitution of an effective complaints committee for the redressal of sexual harassment at workplace. But here, only the ones approaching the committee with grievance get redressal. Fear of pernicious effects in future forces a majority to conceal their grievance. The molestation case of Ruchika Girhotra evidentially gives a living example.[13] Wherefore, silence is not an admission of ‘no grievance.’ Hence the Court should have taken a view which could also combat this issue.
THE TRIGGER PULLED FOR IMPLEMENTATION
The analysis of Vishaka judgment is incomplete without a reference to Medha Kotwal Lele and Ors. v. Union of India and Ors,[14] the decision that gave life to Vishaka.Implementation of guidelines had to be not only in form but also in substance and spirit so as to make available safe and secure environment to women at workplace in every aspect and thereby enabling working women to work with dignity, decency and due respect.[15] It was an eye opener that submitted with ample evidence that many States failed to adhere to the guidelines and the ones adhered was not properly functioning.[16]
Finally, Court directed that the Complaints Committees shall be deemed to be the Inquiry Authority for the purpose of Central Civil Services (Conduct) Rules, 1964 and that the report of the Complaints Committees will be deemed to be the Inquiry Report under the Rules. Court opined that if there were any noncompliance of guidelines, orders of the Court following the directions given, it would be open to aggrieved persons to approach respective High Courts.
Though we firmly argue that judiciary is unbiased, at times, its judgments are influenced by public pressure and media activism. From a critical angle it can be concluded that the Court had given such strong guidelines to close the mouth of the violent mob after the brutal rape of Bhanwari Devi. It is inferred so due to two reasons. Firstly, the guidelines were confined to paper. Secondly Court has failed to take stringent views in cases of sexual harassment which had not drawn much public attention.[17]
Justice delayed is justice denied. Delay in taking action in many cases would frustrate the need for taking urgent action.[18] Even after 15 years of Vishaka, it is pathetic that the Legislature has miserably failed to pass the Bill.
The Delhi gang rape incurred widespread protest all over India with a well cemented media backing. In this case, an Enquiry Commission was setup[19] and J.S.Verma Committee was constituted to make recommendations to enhance the safety of women. Thus it was the hand of public and media activism that aided and prompted the Court to mold a couple of guidelines in Vishaka to shield women from sexual harassment. This instance which shook the entire Country triggered the immediate requirement of law. There was indeed a constitutional silence and abeyance. Hence immediately the 2013 Ordinance was promulgated. This was followed by the constitution of the ‘Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.’ Thus the Bill which was dormant for over a decade metamorphosed into an Act in force.
Thus if the guidelines laid in 1997 in the Vishaka case was just a skeleton, Medhal Kotwal Lele decision gave it flesh and blood and the Delhi Gang Rape gave life to the aforesaid guidelines.
In practical terms, what is evincible is that, ever since stringent views were taken in the Delhi gang rape case and an Act was constituted, there were also implemented. Every institutions did constitute Internal Complaints Committee and took measures to comply with the other mandates as and when required. Further, to a large extent, the complaints committee was able to resolve a bunch of issues. The Court too renders its helping hand for the effective and efficient functioning of the complaints committee.
The mentioning of one such recent case is indeed inevitable at this avenue. The case of Sardar Vallabhbhai National Institute of Technology and Ors v. Ranjit Roy and Ors.[20]decided by the Hon’ble High Court of Gujarat on 22nd March 2016 portrays that Court send matter back to the Internal Complaints Committee for fresh enquiry and report. The edifice of the case rests on the complaints of sexual received against certain professors. The High Court even took a view that the said professors would remain under suspension pending enquiry and they were to vacate the staff quarters at the latest by 15th April 2016. Thus the Court took all the possible measures to ensure that the complainants are never harassed or threatened, the enquiry is not hampered, the ends of fairness is met and that justice is imparted.
CONCLUSION
Lip service, hollow statements, inert and inadequate laws with sloppy enforcement isn’t enough for true and genuine upliftment of our half most precious population- women.[21] Protection of women is of extreme importance to a civilized and cultured society.[22]While a legislation on sexual harassment seems imminent, Vishaka Judgment has, over the last 15 years, leapt out of the statute books and deeply influenced policy and practice in institutions and offices. Ignoring the directions of Supreme Court "amounts to judicial impropriety" and such "judicial adventurism cannot be permitted."[23]However, to some extent, Vishaka Guidelines necessitates for appropriate implementation mechanisms that recognize the obstacles posed by power imbalances and gender norms in empowering women to make a formal complaint on one hand and in receiving appropriate redress on the other. This defectiveness was immensely cured with Medha Kotwal Lele case whereby complaints committee incurred the status of an inquiring authority.
A well bonded legislature, executive and judiciary together with the joint effort of a responsible population could bring the suffering women from the darkness of sexual crimes to the light of safety and protection. A law confined to paper is nothing but a dead law. It is inert. A law attains life only when it is practically implemented. Codification is never the end of molding a law. There can be no full stop or an end point in shaping a law. It is a continuing process which requires thorough implementation and this implementation becomes complete and perfect with review, amendment and deletion as and when the then scenario demands.
[1] AIR 1997 SC 3011
[3] Hebert L. Camille, ‘Why Don't 'Reasonable Women' Complain about Sexual Harassment?’ Indiana LJ (2006)
[5] Inserted by GSR 49, dated 13th February, 1998(W.E.F.7.3.1998)
[6] Inserted by GSR 49, dated 13th February, 1998(W.E.F.7.3.1998)
[10] Annual Report 2011-12, Ministry of Mines - 15 Welfare Measures
[13]SPS Rathore v. State through CBI, Criminal Appeal No: 5 of 12.1.2010.(Decision of 25.05.2010 In The Court Of SH. Gurbir Singh, Additional Sessions Judge, Chandigarh); SPS Rathore v. CBI, Crl. Revision No.1558 of 2010 (O&M) (Decided on 01.09.2010, Punjab and Haryana High Court)
[15]Medha Kotwal Lele and Ors. v. Union of India (UOI) and Ors., 2012(10) SCALE 458; vide Seema Lepcha v. State of Sikkim and Ors., 2012 (2) SCALE 635
[16]Medha Kotwal Lele paras.10 & 11
[17]Smt. Manju Lata Gupta v.Union of India Postal Department, through Secretary/Director General Dak Bhawan and Ors. 2007(3) WLN 696
[19] 26.12.2012 MANU/PIBU/2638/2012 - The Commission of Enquiry has been set up under section 3 of the Commission of Inquiry Act 1952 (60 of 1952).
[20] MANU/GJ/0429/2016