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 •  Vol #4, Issue #1, Combat Law
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Starting the battle
The Visakha guidelines on sexual harassment and the proposed bills on sexual harassment - both the Government version and the alternate one - seek to ensure safe working spaces for women. Mihir Desai looks at how we got to these bills, and the way forward.

Combat Law, Vol. 4, Issue 1 - Supreme Court's judgment in Visakha's case is a landmark for more than one reason. Not only was sexual harassment at the work place recognized under the Indian jurisprudence as a crucial problem faced by women workers, it also set out detailed guidelines for prevention and redressal of this malaise. In doing so, the Supreme Court did not merely confine itself into interpreting the law but went into the legislative exercise of law making. The Court travelled beyond its traditional confines of being the interpretative organ of laws and went into the terrain of law making which it has historically shied away from.

But the Supreme Court itself was conscious of taking cautious steps while indulging in law making. It declared that it was not making any law but only declaring the law which any way existed. For doing this the Court came out with a legal principle which though not totally novel was definitely propounded with such force and clarity for the first time.

Breaking the shackles

Supreme Court relied upon the Convention for Elimination of All Forms of Discrimination against Women (CEDAW)- an international document which India has both signed and ratified. This document deals in detail with sexual harassment at the workplace. Ordinarily, merely because the Indian Government signs or ratifies an international convention or treaty it does not automatically become part of the Indian law. It has to be given a legislative form and a Bill has to be passed in Parliament for it to acquire the status of law. Till this happens the treaty or convention merely remains an international commitment given by the Indian Government without necessarily having any national ramifications.

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But the Supreme Court broke these shackles and held that if the Indian Government makes such commitments in international fora it shall be binding on the Government even within the nation and it will be treated as part of the national law unless there is a law within the country which is in direct conflict with such a law. Thus, if there was a conflicting Indian law on the issue of sexual harassment at the workplace the International convention could not be treated as part of the Indian law till such time as such law was amended or replaced by the legislature. However, since in respect of sexual harassment at workplace there was no conflicting national law, the international commitment as laid out in CEDAW would be treated as part of the Indian law. Since it was to be treated as part of the Indian law what the Supreme Court said it was doing was not creating any law but only declaring the law and filling up some gaps to better implement the already existing law.

Caution was still the byword. So the Court to clarify its stand that it was not encroaching upon the legislative function spelt out that the guide lines it was providing, though to be treated as the law of the land were to continue only till such time as the legislature embarks on the exercise of drafting a law concerning sexual harassment at the workplace.

Post-Vishaka scenario

Visakha's judgment was delivered in 1997 and for six years after that no efforts were made in the direction of enacting a law. So the guidelines continued to be the law required to be followed across the country. But the guidelines were followed more in their breach. Very few complaints committees were set up, service rules were not amended and the judgment was widely disregarded both by public and private employers. But one of the fall out of the judgment was that many civil society organizations became aware of it and started to publicise it and pushed for its implementation. Around the same time many women who were being sexually harassed started breaking their silence and started demanding action from the employers. In fact a number of these cases arose from university and college campuses. The response of the employers by and large was to sweep such cases under the carpet and at times even to victimize the women. But one could still see an increasing fervor of protest. The media also started giving important space and time to this issue.

One such case happened in the M.S. University at Baroda where a student was sexually harassed by her professor. Her protests led to victimization and certain womens' organizations wrote protest letters to the Chief Justice of India. The letters were converted into a Writ Petition and the Court started supervising the implementation of Visakha's guidelines. Notices were issued to the Central Government, all State Governments and the Union Territories asking them to report to the Supreme Court the measures taken by them for complying with the Visakha Guidelines. The Governments filed Affidavits which bordered on the pathetic. But what this did was to at least trigger a flurry of activities at the Central Government and the State Government level. Many of the service rules were amended to bring in sexual harassment as a specific head of misconduct. In many states the Employment Standing Orders Act which apply to private employers were similarly amended. Committees were set up in various public sector organizations. University Grants Commission sent a letter to the Universities asking them to set up committees. The Supreme Court on the other hand continued monitoring the progress and now issued notices to even professional bodies. Though things were moving the changes were essentially cosmetic. Most of the private employers had not set up any committees and those public sector organizations where committees were set up they did not function effectively.

Law-making process

It was during this period that the National Commission for Women took up the task of formulating a comprehensive legislation to deal with sexual harassment at the workplace. For drafting the law it set up a group of civil society activists and finally a law came to be drafted. This Bill in turn was submitted to the Ministry of Human Resource Development, Department of Women and Child Development, which made amendments to this Bill and invited suggestions from the public at large. When Medha Kotwal's case came up in Supreme Court in late 2004, the Solicitor General made a statement that the Government was serious in introducing a law to deal with sexual harassment at the workplace and the Court adjourned the matter so that the Petitioners and other organizations could study the Bill and make recommendations.

It was in this context that a number of orgnisations working on the issue of sexual harassment met in Mumbai in November, 04 to discuss and suggest amendments to this Bill. In this issue we have published both the Bill as recommended by the Government and the alternate Bill suggested by the organizations which gathered for discussion in Mumbai. The alternate Bill is more in the nature of a revised Bill as it does in many respects accepts the framework of the Government Bill. However, there are major areas where the Government Bill was found lacking either in substance or in details and such changes have been recommended.

The story behind the Supreme Court Guidelines.

The Supreme Court guidelines came about due to the gang rape of Bhanwari Devi by a group of Thakurs, as punishment for having stopped a child marriage in their family. This provoked women's groups and NGOs to file a petition in the Supreme Court of India and the result is the Supreme Court guidelines on sexual harassment at workplace.

Bhanwari Devi was a village-level social worker or a saathin of a development programme run by the State Government of Rajasthan, fighting against child and multiple marriages in villages. As part of this work, Bhanwari, with assistance from the local administration, tried to stop the marriage of Ramkaran Gujjar's infant daughter who was less than one year old. The marriage took place nevertheless, and Bhanwari earned the ire of the Gujjar family. She was subjected to social boycott, and in September 1992 five men including Ramkaran Gujjar, gang raped Bhanwari in front of her husband, while they were working in their fields. The days that followed were filled with hostility and humiliation for Bhanwari and her husband. The only male doctor in the Primary Health Centre refused to examine Bhanwari and the doctor at Jaipur only confirmed her age without making any reference to rape in his medical report. At the police station, the women constables taunted Bhanwari throughout the night. It was past midnight when the policemen asked Bhanwari to leave her lehenga behind as evidence and return to her village. She was left with only her husband's bloodstained dhoti to wear. Their pleas to let them sleep in the police station at night, were turned down.

The trial court acquitted the accused, but Bhanwari was determined to fight further and get justice. She said that she had nothing to be ashamed of and that the men should be ashamed due to what they had done. Her fighting spirit inspired fellow saathins and women's groups countrywide. In the months that followed they launched a concerted campaign for justice for Bhanwari. On December 1993, the High Court said, "it is a case of gang-rape which was committed out of vengeance". As part of this campaign, the groups had filed a petition in the Supreme Court of India, under the name 'Vishaka', asking the court to give certain directions regarding the sexual harassment that women face at the workplace. The result is the Supreme Court judgement, which came on 13th August 1997, and gave the Vishaka guidelines.

The excerpts on Bhanwari devi's case has been taken from the book- The Politics of Silence, published by Sanhita, Kolkatta, Aug- 2001)

Changes suggested

The major changes suggested in the alternate Bill pertain to the following: Some of the major victims of sexual harassment are service beneficiaries (who are not employees) such as students in educational institutions, patients in hospitals, customers in banks, etc. Though the Government Bill does include students and other service beneficiaries in a peripheral manner there is no focus on these victims. The alternate Bill devotes a new Chapter for the service beneficiaries.

Similarly, there is widespread sexual harassment indulged in by professionals such as doctors, lawyers and others. This may not be at any workplace but at any place where an intra professional or inter professional relationship exists. For instance a lawyer may be harassed by an entirely unrelated lawyer in the court premises. The Government's Bill does not deal with this issue. The alternate Bill brings in these relationships also into its sweep with the idea that at least statutory bodies of these professionals such as the Medical Council, Bar Council, etc. start treating such actions as professional misconduct.

One of the major lacuna of the Government Bill concerns the unorganised sector. Though there is a mention that Local Committees will be set up to deal with those employers having less that 50 employees, no details are provided about the function and jurisdiction of these committees. The alternate Bill tries to rectify this by providing detailed mechanism for dealing with complaints of sexual harassment within the unorganized sector.

The Government Bill has also not dealt extensively with protection of the victim within the domestic enquiry in terms of the manner and type of questions which would be put, etc. It is trite to say that most women who are subjected to sexual harassment or molestation have to undergo a harrowing time while being cross examined about their past sexual history and similar other questions. The alternate Bill tries to remedy this by giving adequate protection to women who are under cross examination.

The Government Bill proceeds on the footing that as soon as a complaint of sexual harassment is made a full fledged enquiry must follow. In most of the cases women may not want this and they may only want counselling services. Many cases get sorted out by the Committee just sternly talking to the man or giving him a warning. Some cases may even be sorted out by mediation. Though the Government Bill does talk about mediation, no framework for counselling is provided and again the alternate Bill takes this into account. There are many minor changes in terms of procedure of enquiry, selection and functions of committees, etc. which are also suggested in the alternate draft. The alternate draft also focuses on providing compensation to the victim.

Hopefully, the Government will agree to the alternate draft and a comprehensive legislation will soon become a reality. Such a law will at least be a starting point for a long term battle against sexual harassment.

Mihir Desai
Combat Law, Volume 4, Issue 1
January-February 2005
(published March 2005 in India Together)

Mihir Desai is an advocate practising in the Supreme Court and Bombay High Court and joint editor of Combat Law.

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