Violence against women is a major human rights concern. It is an ancient problem, occurring in and across societies all over the world. Power inequalities between women and men and a patriarchal culture are at the root of this violence. The Constitution of India confers equal rights and opportunities to all men and women in political, economic and social spheres. Hence, the courts were moved to address issues of violence and sexual harassment in the workplace. The Supreme Court acknowledged the existence of sexual harassment for the first time through its ruling in the Vishakha case, and identified the need for legal recourse to address it. Since the ruling, sexual harassment at the workplace is accepted as a form of violence against women. In a society where the mere mention of the word `sex` and the concept of sexuality are shrouded in myth and shame, this is a laudable milestone.

The Vishakha Judgment

In response to a petition filed by women`s groups, the apex court passed a landmark judgment – the Vishakha – judgment  on the issue of sexual harassment at the workplace on 13 August 1997. Recognising sexual harassment as a human rights violation and a manifestation of violence against women, the judgment defined sexual harassment at the workplace as “unwelcome sexually determined behaviour (whether directly or by implication) [such] as physical contact and advances; a demand or request for sexual favours; sexually coloured remarks; showing pornography; any other unwelcome physical, verbal or non verbal conduct of sexual nature.” In the order, the court mentioned that gender equality includes protection from sexual harassment and the right to work with dignity, which is a universally recognised basic human right. The judgment further stated that guidelines and norms were being enacted for the effective enforcement of the values of gender equality and guarantee against sexual harassment and abuse.

The guidelines of the Supreme Court assign the responsibility of prevention and redress of complaints of sexual harassment at the workplace to the employer. The judgment also upheld India`s obligations under The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which India ratified in 1979. The judgment brings the public, private, government and unorganised sectors within its purview, and extends protection to all women earning a salary, an honorarium, wages or working on a voluntary basis.

Scenario Post-Vishakha

A round table conference of representatives from the public, private, government and unorganised sectors was held in Mumbai in 2005. It emerged from the discussions that the implementation of the guidelines and rules was poor and that sexual harassment at the workplace was still rampant in all sectors.

The lack of commitment of senior management levels to prevent, deter and redress complaints of sexual harassment at the workplace or to provide women friendly work conditions is widespread. This includes a lack of awareness of many employers and women employees concerning guidelines and the functioning of complaints committees and also, in many cases, the failure to form complaints committees at all.

The reasons given for the non-implementation of the guidelines include claims that no report of harassment implies that the committees have no purpose and thus need not be established; accusations that women who are unproductive and insincere make false and malicious complaints against male colleagues or superiors; and assertions that where the number of male employees in the organisation is less than female employees, there is no need for any measures to protect women.

Where guidelines do exist and where women do make complaints, employers and management often intentionally remain inactive or trivialise the complaint; doubt and dismiss the woman`s claims without looking into accusation; put pressure on the woman to settle or withdraw the complaint without an enquiry by the complaints committee; and defame, ostracise, isolate, terminate, demote, transfer and harass other employees, who support the complaint.

Employers and management also, at times, retaliate against the complainant by stopping increments, threatening and intimidating the woman and her family, intensifying sexual harassment, filing defamation suits by the respondent against the woman and through negative reports of the woman`s performance.

Another less obvious, but extremely important, issue is that where complaints committees do exist, they are not sensitive to the difficulties that women experience in making complaints nor are they gender sensitive. A woman facing sexual harassment finds it painful to deal with the apathetic attitude of the employers. Compounding this is the additional prospect of facing a complaints committee with members from diverse backgrounds, who may not have an orientation to the issue of violence against women and, more specifically, to the nuances of sexual harassment at the workplace.

Often members of complaints committees, including the chairperson, approach cases through various myths about female behaviour, uncritical commonsense notions, and hearsay information about the woman complainant. Such ideas include the beliefs that only women, who are provocatively dressed, are sexually harassed; that `decent` women do not get sexually harassed; that if a woman is too friendly with men, she is inviting trouble; and a general suspicion that many women make up and report false stories of sexual harassment to get back at their employers or others who have angered them.

Poor knowledge of legal provisions to protect the rights of women leads to procedures of enquiry that are not gender-friendly. One example is when the complainant is made to bear the burden of proof and treated with suspicion. Another example is when committee members probe the character of the complainant or highlight certain aspects of her performance that undermine her position vis-à-vis the respondent.

Committee members very often fail to see the links between gender inequality in the family, society and at the workplace and its manifestations in the form of violence against women. This leads them to treat sexual harassment as a problem between the survivor and the perpetrator only, and not an issue for the organisation itself. Thus, enquiries are seen as a burden on the committee and a waste of the resources of the organisation.

Given these facts, even ten years after the path-breaking Vishakha judgment, women employees do not want to see themselves as troublemakers within the organisation, do not trust the grievance mechanism and lack confidence in the redressal system. Sexual harassment at the workplace, therefore, continues to remain a highly under-reported phenomenon across work sectors.

Much remains to be done in the path to gender justice, in preventing, deterring and redressing sexual harassment at the workplace. Both the Vishakha judgment and the ones following it have laid a solid foundation; however, it is only when the values of gender sensitivity and the spirit of human rights are imbibed by us at workplaces that a difference will be made.

Snehal Velkar is Programme Officer, Campaign Against Sexual Harassment Unit, Human Rights Law Network, Mumbai. Email: snehalvelkar@gmail.com

Anagha Sarpotdar is Unit Coordinator, Campaign Against Sexual Harassment Unit, Human Rights Law Network, Mumbai. Email: anagha.sarpotar@gmail.com