On 13 August 1997, the three-judge bench comprising Chief Justice JS Verma, Justices Sujata V. Manohar and Justice B.N. Kirpal, pointed out the ‘Legal Vacuum’ and thus the lack of rule of law when it comes to protecting a woman at the workplace, which is still predominantly patriarchal in nature. The social milieu still promotes a culture of silence among women. The bench gave the historical judgment “Vishakha v State of Rajasthan” (AIR 1997 SC 3011), famously known as the Vishakha Guideline.
The historical judgement is a landmark on various counts. First, it made the International Convention, especially the Convention on the Elimination of All Forms of Discrimination against Women as the basis for national legislations paving the way for progressive laws and state accountability towards the international commitments. Second, it recognised specific vulnerability of women at workplace and the gap in existing laws, which it termed as “legal vacuum”. Third, the bench did not restrict itself but creatively used the powers conferred on the Supreme Court under Article 141 and 142 and laid down elaborate guidelines to deal with the menace of sexual harassment against women at workplaces.
The judgment remains to be a landmark as it elaborated the beauty of the Indian Constitution towards protecting the rights of individuals under Articles 14, 19(1)(g) and 21, and the responsibility on the Indian State underArticles 51(c), 73, 253 and Seventh Schedule.. The apex court referred to the above provisions which envisage judicial intervention for eradication of this social evil and pronounced the following,
“In view of the above, and the absence of enacted law to provide for the effective enforcement of the basic human right of gender equality and guarantee against sexual harassment and abuse, more particularly against sexual harassment at work places, we lay down the guidelines and norms specified hereinafter for due observance at all work places or other institutions, until a legislation is enacted for the purpose. This is done in exercise of the power available under Article 32 of the Constitution for enforcement of the fundamental rights and it is further emphasised that this would be treated as the law declared by this Court under Article 141 of the Constitution.”
The guidelines were quite elaborate and specifically dealt with the following: duty of the employer or other responsible persons in work places and other institutions; definition especially as to what constitute sexual harassment; preventive steps; criminal proceedings; disciplinary action; complaint mechanism; complaints committee; workers’ initiative; awareness; and where sexual harassment occurs as a result of an act or omission by any third party or outsider. It also stated that 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.
However, it took almost 15 years for the Parliament to convert the guidelines into a law, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, in 2013. The moot question is why the legislature took so long to frame the law. Why is it that issues of gender continue to be given least priority by the Parliament even in times of an awakened human rights global world? Another illustrative example of the lethargy in legislating is seen evidently in the case of sexual crime victims of child marriage. The 2017 judgment of the Supreme Court in the matter, Independent Thought vs. Union of India [(2017) 10 SCC 800], where the top Court read down the Exception 2 of Section 375, Indian Penal Code (IPC), raising the age of Consent from 15 years to 18 years even for married girls at par with other girls. The same needs a formal amendment in the IPC, but even 5 years later the Government of India has not demonstrated any intent to make these changes. This is more so when the Prohibition of Child Marriage (Amendment) Bill, 2021 was tabled in the Parliament, making corresponding changes in various laws, the required amendment in IPC was missing.
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013or the POSH law has indisputably come as an empowering tool for several working women and has strengthened the confidence in the ‘second sex’ to fearlessly voice her concerns with dignity. Since 2013, there has been a paradigm shift in the cloud of shame shifting from the complainant woman to the male accused of this act. The 2013 law mandates each organization with more than 10 employees to have an internal committee and a policy on prevention, prohibition, and redressal of sexual harassment at workplace for women. Further the Ministry of Corporate Affairs through the Companies (Accounts) Amendment Rules, 2018, makes ‘Disclosure of compliance under the Sexual Harassment of Women at Workplace Act in the annual reports of private companies as mandatory. The businesses must be made accountable for ensuring adherence to human rights principles and these are must for an equitable growth and achieving the sustainable development goals 2030.
With 25 years of the law in place, it is time to fully recognise the issue at hand as a human rights issue and not one of gender. Prevention, as they say, is always better than cure and what best to practise this than now, after two and a half decades of the law in place.
Vikram Srivastava is an advocate and founder of Independent Thought and Leena Prasad is an advocate and Associate Director, Advocacy, Research, and Training. Udayan Care.