Remember Vishaka to avoid Tarun Tejpal in future……………………

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Tarun Tejpal………., the name these days known to all having access to Indian Media, anyone can tell about him and out of those  anyone, most will have/show instant reactions for this gentle man. Even some one will be eager to abuse Tejpal and The System as  well. After all we are educated, law abiding and having respect for women …aren’t we …… and around us how someone can offend women. We will definitely not keep calm …….. whether we are sharing dinner with family, taking morning breakfast, sitting in any vehicle or sharing coffee in office. We wish to remember this topic during discussion on such common issues and share our views……. rather I would say share some most common sentences like…… Is desh ka kuchh nahi ho sakta hai or Is desh me kuchh bhi ho sakta hai… (uff so different but so similar sentences). Till this it is acceptable, we are citizen of India we have the liberty to express our views, nobody can stop us.

But things become unacceptable when we forget to comment on or forget even subject or names of some most known personality who were related to the topic Tarun Tejpal is subject to….. like Phaneesh Murthy, Ex-CEO of iGate (Year of allegation 2013), Mahipal Maderna (Year of allegation 2011) or the 88 years old, thrice CM of UP and once CM of UK N.D. Tiwari (Year of allegation 2009). Forgetting to comment, subject or name is in the nature of human but when we are bound to forget the subject/names why we waste our energy on commenting on these topics and if we comment we should first get learning from these issues else it is wastage of time and energy. Forgetting the older subject/names leads to forget the learning thereof and that’s the worst part.

Not all but most of the lawyers/ law students/ Para-legal staffs would be aware of the Vishaka case (i.e. Vishaka Vs. State of Rajasthan, 1997) and The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. But the Guidelines provided by the Vishaka case and the provisions of the above said Act are not related to only person involved in legal and para-legal works but for women working at various premises, from Rastrapati Bhawan to any house in Andman. And I am clear that most of the women except those involved in legal compliance would not be even aware of the existence of the guidelines formulated by Supreme Court in Vishaka Case in 1997 and the above said Act….. why to talk about the provisions thereof.

Therefore with a view to learn together and spread awareness, let me exchange the highlights of both the famous Vishaka Case & Guidelines issued by the Supreme Court and The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013:

 

THE VISHAKA CASE

Bhanwari Devi was a village-level social worker, 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 August1997, and gave the Vishaka guidelines.

 

VISHAKA GUIDELINES AGAINST SEXUAL HARASSMENT AT WORKPLACE

1. Issuing Authority

Hon’ble Supreme Court of India in Vishaka and Others Vs. State of Rajasthan and Others (JT 1997 (7) SC 384)

Guideline

2. Duty of the Employer or other responsible persons in work places and other institutions:

(i)                 to prevent or deter the commission of acts of sexual harassment and

(ii)               to provide the procedures for the resolution, settlement or prosecution of acts, of sexual harassment

by taking all steps required.

3. Definitions

(i)                 Sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as:

a) Physical contact and advances;

b) A demand or request for sexual favours;

c) Sexually coloured remarks;

d) Showing pornography;

e)  Any other unwelcome physical, verbal or non-verbal conduct of sexual nature

4. Preventive Steps:

All employers or persons in charge of work place whether in public or private sector should take appropriate steps to prevent sexual harassment. Without prejudice to the generality of this obligation they should take the following steps:

A. Express prohibition of sexual harassment as defined above at the work place should be notified, published and circulated in appropriate ways.

B. The Rules/Regulations of Government and 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.

C. 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.

D. Appropriate work conditions should be provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at work places and no employee woman should have reasonable grounds to believe that she is disadvantaged in connection with her employment.

5. Criminal Proceedings

Where such conduct amounts to a specific offence under the Indian Penal Code or under any other law, the employer shall initiate appropriate action in accordance with law by making a complaint with the appropriate authority. In particular, it should ensure that victims or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment. The victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer.

6. Disciplinary Action

Where such conduct amounts to misconduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules.

7. Complaint Mechanism

Whether or not such conduct constitutes an offence under law or a breach of the service rules, an appropriate complaint mechanism should be created in the employer’s organisation for redress of the complaint made by the victim. Such complaint mechanism should ensure time bound treatment of complaints.

8. Complaints Committee

The complaint mechanism, referred to above, should be adequate to provide, where necessary, a Complaints Committee, a special counsellor or other support service, including the maintenance of confidentiality. The Complaints Committee should be headed by a woman and not less than half of its member should be women. Further, to prevent the possibility of any undue pressure or influence from senior levels, such Complaints Committee should involve a third party, either NGO or other body who is familiar with the issue of sexual harassment. The Complaints Committee must make an annual report to the Government department concerned of the complaints and action taken by them. The employers and person in charge will also report on the compliance with the aforesaid guidelines including on the reports of the Complaints Committee to the Government department.

9.      Worker’s Initiative

Employees should be allowed to raise issues of sexual harassment at a workers’ meeting and in other appropriate forum and it should be affirmatively discussed in Employer-Employee Meetings.

10.  Awareness

Awareness of the rights of female employees in this regard should be created in particular by prominently notifying the guidelines (and appropriate legislation when enacted on the subject) in a suitable manner.

11.  Third Party Harassment

Where sexual harassment occurs as a result of an act or omission by any third party or outsider, the employer and person in charge will take all steps necessary and reasonable to assist the affected person in terms of support and preventive action.

As seen above, there is absence of specific time line for disposal of complaint, role and responsibility of the Company and the committee, specific penal provision for non- compliance, etc. which resultant in very poor rate of compliance by the employers. These drawbacks are due to the nature of the provisions which is in the form of guidelines.

Therefore, with a view to remove the limits of the guidelines issued by the Supreme Court of India in Vishaka case, The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 has been enacted in the month of April, 2013.

        i.            The Act has recognised the sexual harassment as the violation of fundamental rights of a woman under Article 14, 15 and 21 of the Constitution of India.

      ii.            The Act covered domestic workers as well.

    iii.            As per Section 4(1) of the Act, every employer of a workplace has to constitute an Internal Complaints Committee. The Act states that where the offices or administrative units of the workplace are located at different places or divisional or sub-divisional level, the Internal Committee shall be constituted at all administrative units or offices.

 

It is pertinent to mention here that the above said provisions do not exempt a workplace where there is no woman. Accordingly, as per the above said provision, if a Company has more than one office, and if in one office where there are woman staffs he has constituted Internal Complaint Committee  will such constitution not be sufficient for another office as well where there is for say only 5 staffs and all of them are male staffs ?

    iv.            The Act requires to appoint a woman as presiding officer of the Committee and one member from amongst non-governmental organisations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment.

      v.            Duties of Employer

Every employer shall-

(a)    provide a safe working environment at the workplace which shall include safety from the persons coming into contact at the workplace;

(b)   display at any conspicuous place in the workplace, the penal consequences of sexual harassments: and the order constituting, the Internal Committee;

(c)    organise workshops and awareness programmes at regular intervals for sensitising the employees with the provisions of the Act and orientation programmes for the members of the Internal Committee in the manner as may be prescribed;

(d)   provide necessary facilities to the Internal Committee or the Local Committee, as the case may be, for dealing with the complaint and conducting an inquiry;

(e)    assist in securing the attendance of respondent and witnesses before the Internal Committee or the Local Committee, as the case may be;

(f)    make available such information to the Internal Committee or the Local Committee, as the case may be, as it may require having regard to the complaint made under sub-section (1) of section 9;

(g)   provide assistance to the woman if she so chooses to file a complaint in relation to the offence under the Indian Penal Code or any other law for the time being in force;

(h)   cause to initiate action, under the Indian Penal Code or any other law for the time being in force, against the perpetrator, or if the aggrieved woman so desires, where the perpetrator is not an employee, in the workplace at which the incident of sexual harassment took place;

(i)     treat sexual harassment as a misconduct under the service rules and initiate action for such misconduct;

(j)     monitor the timely submission of reports by the Internal Committee.

(k)   The employer shall include in its report the number of cases filed, if any and their disposal under this Act in the annual report of his organisation or where no such report is required to be prepared, intimate such number of cases, if any, to the District Officer.

 

    vi.            Penal Provision for employer in case of non-compliance:

 

Where the employer fails to-

(a) constitute an Internal Committee under sub-section (1) of section 4;

(b) take action under sections 13, 14 and 22; and

(c) contravenes or attempts to contravene or abets contravention of other provisions of this Act or any rules made thereunder,

he shall be punishable with fine which may extend to fifty thousand rupees.

  vii.            Apart from above the Act also provides for the specific time limits for the disposal of complaints by the Internal Complaint Committee.

The Act has become effective in April, 2013 but still there are certain rules to be issued by the concern Ministry which is expected to make the Act complete and all the ambiguity thereof may be removed.

The Compliance of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 by every employer shall definitely reduce the sexual harassment of women at various workplaces at its minimal level. Therefore every person who has been assigned task of corporate compliance must come forward and ensure compliance of the above said Act so that one Vishaka could be sufficient for thousands of Tarun Tejpal.

I have done my part rest is yours……

 

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