In the Vishakha Judgment the petitioner sought to enforce the fundamental rights of working women. The said petition wanted an enforcement of Article 14, 19 and 21 ‘in view of the prevailing climate in which the violation of these rights is not uncommon’. The petition was presented as a class action by certain social activists and NGOs.
The Court, in Vishakha:
- took notice of Articles 15 and Article 42 of the Constitution. Article 42 provides that The State shall make provision for securing just and humane conditions of work and for maternity relief.
- observed that “gender equality includes protection from sexual harassment and right to work with dignity, which is a universally recognised basic human right. The common minimum requirement of this right has received global acceptance. The international conventions and norms are, therefore, of great significance in the formulation of the guidelines to achieve this purpose.”
- refers to the principles of independence of judiciary. In this context in the Sheela Barse case the Supreme Court said: “Usually the most important encounter which the citizen has with the law is at the primary level. This level, in fact, frightens many citizens, and has given a feeling of helplessness that the administration of law does not necessarily lead to justice in the predominance of Truth. Even the secondary and the Tertiary level courts i.e. the High Court and the Supreme Court to function, they too depend upon the impressions of the primary level courts. Thus, if an error creeps in there, it becomes an error which may not perceptible of correction by the secondary and the tertiary levels”
Recommendation of the Justice Verma Commitee report
Inadequacy of judicial personnel can be immediately addressed in the following manner:
- Retired Judges of the Supreme Court, High Court and the District Courts could be appointed as ad- hoc judges to expeditiously dispose pending cases;
- Parliament should consider equalisation of age of retirement of the subordinate judiciary, the High Court and the Supreme Court so that manpower will be immediately available
- Infrastructure for ad hoc judges can be easily identified in respect of unutilised government buildings and be made available.
- Adjournment should not be allowed as a matter of course in respect of cases specially fixed for hearing before the ad-hoc courts, or even before regular courts.
- Public prosecutors should be appointed on the basis of merit in accordance with the recommendations made by the Chief Justice of the High Court and not on the basis of any political considerations.
- Cases of rape and sexual assault should be tried by women prosecutors, and, to the extent possible, by women judges. In any event, all judges of the subordinate and higher judiciary should receive training in gender sensitivity
- In case of an offence like rape there would be a constitutional violation of Articles 14, 14, 19 and 21 and which would also enable the victim to claim right to compensation1. The Commitee is of the view that a right to claim compensation will lie against the State in the event the State is unable to secure safe conditions / safe spaces for women.
The Committee has arrived at the conclusion that, read as a whole, the Sexual Harassment Bill of 2012 is unsatisfactory, the spirit of the judgment in Vishakha is not adequately reflected.
Suggestion for a more effective legislation:
- definition of sexual harassment: in determining whether the behaviour or act complained of is unwelcome, one of the factors to be given due weight shall be the subjective perception of the complainant;
- the present structure mandating the setting up of an Internal Complaints Committee to which any complaint must be filed is counter-productive to the ends sought to be met;
- the Commitee propose an Employment Tribunal: it should comprise of two retired judges (of which one must be a woman), two eminent sociologists and one social activist, who has sufficient experience in the field of gender-based discrimination;
- that Tribunal ought to follow a summary procedure for the disposal of complaints so as to expedite the resolution of disputes. It is apprehended that if the complaint of sexual harassment is tried as a full blown civil trial then the parties concerned will be adversely affected in the workplace for a prolonged period of time which can cause a prejudicial effect to both or either party. It is suggested that parties shall not as a matter of right be free to call upon witnesses, unless permitted by the Tribunal in the facts of the case. The Tribunal ought to also be mandated to conduct periodic inspectionto obtain information on the state of the enforcement of the proposed legislation. The purpose of these inspections should also extend to activities relating to gender sensitization.
- Establishments to which the proposed Act shall apply: any legislation must apply to all government institutions, all public bodies, all panchayats, all establishments covered under the Factories Act and the Industrial Disputes Act and all employers in the private sector who are not otherwise covered by the categories listed above.
- Definition of workplace: the proposed legislation should also cover women in unorganized sector, in the armed forces and police, agricultural workers, women students and staff of all schools and educational institutions and domestic workers.
- The employer should be imposed (under penalty in the case of act or omission which facilitates or permittes sexual harassments) to inform employees of their right to raise, and how to raise, the issue of harassment, and develope methods to sensitize all concerned. Employers should be free to set up an internal committee, if they so desire, however, a complainant cannot be compelled to approach such an internal committee prior to approaching the proposed Employment Tribunal. Particularly, all employers must have a nodal female officer to whom all complaints of sexual harassment may be made, whether in writing or otherwise4.
- We propose that complainants may be free to approach the Tribunal directly to state a complaint orally (not only in writing), which may then be transcribed into the written form in the manner prescribed by the Tribunal, because often lack of education and illiteracy don’t allow them to make a wrote complaint. The power to compulsorily transfer or grant leave to the aggrieved woman should only be exercised with the consent of the woman.
- No fixed time period of limitation be prescribed and that the only expectation be that a complaint shall be made within a reasonable period of time with regard to the facts and circumstances. A determination of what amounts to a reasonable period of time shall be made by the Tribunal which may then be refined through the development of case law on the point.
- A conciliation should not be permitted, nor shall withdraw the complaint. The cases should be treated according to the law of the land. This to prevent pressurizing influences on a valid complaint.
- The Sexual Harassment Bill, 2012 provides an action in relation to false or malicious complaints or giving of false evidence: the said provision has to be deleted to prevent abuses.
- In compliance with the judgment in Vishakha v. State of Rajasthan, universities such as the Jawaharlal Nehru University and the University of Delhi have formulated policies and constituted mechanisms to prevent and redress complaints of sexual harassment. Those universities, in which Internal Complaint Committees have functioned successfully to deal with sexual harassment, should share their internal guidelines on combating sexual harassment in their University with other Universities across India5.
Notes:
1 Nilabati Behera v, State of Orissa & Others (1993) 2 SCC 746
2 Comparison with Italian law: Article 185 Each offence requires refunds in accordance with the civil laws. Each offence, which has caused a patrimonial damage or non-pecuniary damage, requires the offender to pay compensation and the people, in accordance with the civil law must respond to the fact of him
3 Municipal Corporation of Delhi v. Female Workers’ Muster Roll AIR 2000 SC 1274
4 Comparison with italian law: Article 2087 Civil Code: a contractual obligation to be paid by the employer to ensure the safety of workers. The entrepreneur, who has become aware of sexual harassment within his undertaking,has to act and adopt disciplinary action (dismissal, suspension, etc..) and all appropriate measures to ensure the full protection employees, otherwise the right to compensation for non-pecuniary damage for the worker. There is also the responsibility borne by the employer (or principal) for tort committed by its employee in the performance of assigned functions, but there must be a chain between the exercise of the duties and the damage event. Specifically, in the sense that the job has created a situation which facilitate or make possible the offence and the loss. Our legal system considers the criminal liability arising personnel only, any form of objective responsability is viewed as a dictatorial fascist one. It’s required at least fault or negligence, carelessness, inexperience.
5 As an example, the internal complaint committee of JNU is known as Gender Sensitisation Committee against Sexual Harassment, which is stated to have been extremely effective in its working partly due to the diverse nature of its constituent members. This model may be examined.
