“It shall be the duty of the employer to prevent or deter the commission of acts of sexual harassment”

The Supreme Court on Friday provided a mechanism for implementation of Vishaka guidelines, which require the employers at the workplace as well as other responsible persons or institutions to observe them and ensure the prevention of sexual harassment to women.

A three-judge Bench of Justices R.M. Lodha, Anil R. Dave and Ranjan Gogoi said: “The Vishaka judgment came on August 13, Yet, 15 years after the guidelines were laid down by this Court for the prevention and redressal of sexual harassment and their due compliance under Article 141 of the Constitution until such time appropriate legislation was enacted by the Parliament, many women still struggle to have their most basic rights protected at workplaces.”

The Bench said the grievance in the present petitions was that women continued to be victims of sexual harassment at the workplace.

“The guidelines in Vishaka are followed more in breach than in substance and spirit by State functionaries and all other concerned. The women workers are subjected to harassment through legal and extra-legal methods and they are made to suffer insult and indignity.

“The statutory law is not in place. The Protection of Women Against Sexual Harassment at Work Place Bill, 2010 is still pending in Parliament, though Lok Sabha is said to have passed that Bill in the first week of September, 2012. The belief of the Constitution framers in fairness and justice for women is yet to be fully achieved at the workplaces in the country.

The guidelines among other things say: “It shall be the duty of the employer or other responsible persons in workplaces 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. The rules/regulations of the government and the 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. 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.”

The Bench after analysing the affidavits filed by the States and Union Territories said: “The States and Union Territories which have not yet carried out adequate and appropriate amendments in their respective Civil Services Conduct Rules [By whatever name these Rules are called] shall do so within two months from today by providing that the report of the Complaints Committee shall be deemed to be an inquiry report in a disciplinary action under such Civil Services Conduct Rules. In other words, the disciplinary authority shall treat the report/findings etc. of the Committee as the findings in a disciplinary inquiry against the delinquent employee and shall act on such report accordingly. The findings and the report of the Committee shall not be treated as a mere preliminary investigation or inquiry leading to a disciplinary action but shall be treated as a finding/report in an inquiry into the misconduct of the delinquent.”

It said: “The States and Union Territories which have not carried out amendments in the Industrial Employment [Standing Orders] Rules shall now carry out amendments on the same lines, within two months; the States and Union Territories shall form adequate number of Complaints Committees so as to ensure that they function at taluka level, district level and state level. Those States and/or Union Territories which have formed only one Committee for the entire State shall now form adequate number of Complaints Committees within two months from today. The State functionaries and private and public sector undertakings/organisations/bodies/institutions etc. shall put in place sufficient mechanism to ensure full implementation of the Vishaka guidelines and further provide that if the alleged harasser is found guilty, the complainant – victim is not forced to work with/under such harasser and where appropriate and possible the alleged harasser should be transferred. Further provision should be made that harassment and intimidation of witnesses and the complainants shall be met with severe disciplinary action.”

Directive to Bar Council

The Bench directed the Bar Council of India to ensure that all bar associations in the country and persons registered with the State Bar Councils followed the Vishaka guidelines.

Similarly, the Medical Council of India, the Council of Architecture, the Institute of Chartered Accountants, the Institute of Company Secretaries and other statutory institutes should ensure that the organisations, bodies, associations, institutions and persons registered/affiliated with them followed the guidelines. “We are of the view that if there is any non-compliance or non-adherence to the Vishaka guidelines, it will be open to the aggrieved persons to approach the respective High Courts. The High Court of such State would be in a better position to effectively consider the grievances raised in that regard.”

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