No light yet at the end of the tunnel

About a year ago, the Supreme Court issued directives to check sexual harassment at work places. However, nothing much has changed despite these guidelines and women continue to be targeted, says Aruna Singh

A SUPREME COURT order delineating guidelines on prohibiting sexual harassment at the work place has completed one year. The guidelines, which came as a result of a petition filed by a group of NGOs called Vishaka in 1992, were a response to hazards faced by working women in their work places and highlighted the urgency for having safeguards in the absence of legislative measures.

The order was significant in that it was for the first time that such incidents of harassment were seen as resulting in the violation of the victim’s Fundamental Right under Article 19(1)(g) which was about the Right "to practice any profession or to carry out any occupation, trade or business." Further, the apex court recognised that each incident was a violation of the Fundamental Right of gender equality and the Right of life and liberty. It is a clear violation of the Rights under Articles 14, 15 and 21 of the Constitution, the judgement held.

The order also recognised that in the absence of domestic law to deal with the "evil of sexual harassment of working women at all work places," the contents of international conventions and norms were significant for interpreting the guarantee of gender equality. It recalled the objectives of the judiciary as stated in the International Conference of Women at Beijing in 1995 but also the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), a convention which was ratified by the Indian government in 1993.

Article 11 of CEDAW recognises that "States parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular a) the right to work as an inalienable right of all human beings and b) the right to protection of health and to safety in working conditions including the safeguarding of the function of reproduction. On violence and equality in employment, CEDAW had observed that "equality in employment can be seriously impaired when women are subjected to gender specific violence such as sexual harassment in the work place."

It defined sexual harassment as that which "includes such unwelcome sexually determined behaviour as physical contacts and advances, sexually coloured remarks showing pornography and sexual demands whether by words or by actions. Such conduct can be humiliating and may constitute a health and safety problem; it is discriminatory when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment, including recruiting or promotion, or when it creates a hostile working environment. Effective complaints, procedures and remedies, including compensation should be provided.

The guidelines in the apex court’s order enjoin upon an employer or other responsible persons in work places 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. All employers have to notify and "express prohibition of sexual harassment as defined" at their work places. The guidelines included the setting up of a complaint mechanism which would be time bound and would redress the complaints of the victims. This would entail a Complaint Committee which would be headed by a woman and not less than half its members would be women. Moreover, the guidelines also provide for the inclusion of a third party or an NGO to prevent the possibility of undue pressure or influence from senior levels. The order also called upon the Central and State governments to ensure that the guidelines were also observed by the employers in the private sector.

Though no time frame was set for the implementation of the guidelines, what became apparent to women’s organisations like the National Commission for Women was that the news about the court order had reached some working women at least. The number of cases coming to them had gone up and to boot, some complaints had come from women employees in fairly prestigious institutions. The Indira Gandhi National Centre for Arts (IGNCA), Bureau of Indian Standards (BIS), the office of the Comptroller and Auditor General of India (CAG) and Northern Railways were some institutions which came under the public eye after reports appeared about them regarding cases of alleged sexual harassment of some of their women employees.

It was learnt that most of the above mentioned cases were being dealt by the NCW. From August, 1995, the NCW had received 85 cases of sexual harassment at the work place though a majority of the cases had come after the issue of the apex court guidelines last year, PS Ravindra, a senior consultant at the NCW said.

He said that of the total cases, a very small percentage had made vague allegations of sexual harassment but the rest were found to be genuine. The Janwadi Mahila Samiti, which had taken up the case of women employees at IGNCA, also stated that there was an increase in the reporting of such incidents in the last one year and a majority of them were found to be genuine. Dr Hemlata from Sakshi, an organisation working on issues of violence against women and children, said that there was some awareness about the judgment as it was reflected in the number of cases being received by them. The organisation, it was learnt, had received complaints from women employees in hospitals as well as senior government functionaries.

Despite the increase in the reporting of such incidents, it was felt that a lot more women, out of a variety of reasons, chose not to pursue the incidents. There were women employees who were content with a mere apology from the alleged offender but it was only after prolonged harassment and inaction from their respective departments that they sought redressal from an organisation other than their own. Dr Hemlata said that in many cases after such an incident had reportedly occurred, employers took a long time in constituting the complaints committee. She felt that the presence of such committees could serve as a deterrent to acts of sexual harassment. Ravindra, who has an experience of dealing with complaints in the Commission for some years now, said that women employees did not pursue what they perceived to be "sexual harassment of a tolerable or mild nature" and weighed it as a factor against their future prospects and promotions. He felt that cases of such incidents were actually far more compared to what was being reported to the NCW and other organisations.

It was found that despite the lucid apex court guidelines, many organisations were found wanting in constituting the complaints committee and in the method of conducting the inquiry. At least in two cases, one involving the CAG’s office, the NCW had to send the inquiry report back on the grounds that the procedure was not in accordance with the SC guidelines. In the other, where the BIS employees were involved, the commission had to remit the case back to the organisation and asked for a de novo enquiry to be conducted.

A very recent nation-wide study by a consultancy firm called Santek Consultants on the extent and nature of sexual harassment in the organised and unorganised sectors has come out with some interesting findings. The study, yet to be published, was done for the NCW. The five states, where respondents were located, were Maharashtra, Madhya Pradesh, West Bengal, Uttar Pradesh and Andhra Pradesh. A total of 1200 women were selected. This included women workers in the organised, unorganised, private and public sectors. Almost half of the respondents reported having faced some problem at work while a majority stated that they faced some form of mental or physical harassment. The reasons for harassment, as perceived by the respondents, range from ego problems to sexual obsession or perversion.

The survey also found that all the cases of harassment were not reported and 40 per cent said that they usually ignored such incidents. Around 17.25 per cent of the respondents said that no action was taken despite reporting. The forms of harassment, the survey found included bottom pinching, undesirable touching on private parts, forcing physical intimacy, undesirable kissing, molestation, rape, forcing for immoral trafficking and even prostitution.Mental harassment was in the form of whistling, ogling, winking, passing lewd remarks, reciting obscene songs, ballads, abusing sexual gestures etc. The survey reported gender discrimination in the matter of salary, leave, promotions, work distribution, working hours etc. The harassment faced by women was more in the unorganised sector as compared to the organised sector. The survey also found that the majority of the respondents were not aware of the recent judgment given by the apex court.

Undoubtedly, the basic message of the guidelines have reached a section of women who have had the courage to complain despite the odds against them. However, as pointed out also by the NCW survey, it is the women in the unorganised sector who being economically and socially suppressed are most vulnerable to all forms of sexual harassment, including that at the work place. While the need to tackle the problem in the organised sector is important, it is necessary to ensure that the guidelines do not get restricted to urban centres and do not become a tool of harassment at the hands of the management to persecute "inconvenient" employees.