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VISHAKHA GUIDELINES: THE CORNERSTONE OF POSH ACT, 2013

ABSTRACT

In the past, there have been instances where legal action served as the initial step in the process of developing statutes. "Ensuring gender equality requires the active participation of both men and women, as well as girls and boys." Everyone is responsible for their actions. Any form of harassment is unacceptable, and sexual harassment specifically violates an individual's fundamental rights to equality[1], life, and personal freedom[2]. The right to be treated fairly and live a life of dignity is essential according to our constitution, and it is imperative to establish measures for preventing sexual harassment of women in the workplace. This blog examines the historical development of the POSH Act and the introduction of the VISHAKHA principles, which laid the groundwork for the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act of 2013. This blog aims to provide individuals with an understanding of workplace sexual harassment, the laws in place to prevent it, and the gender-specific aspects of the POSH Act.


INTRODUCTION

Sexual harassment, as defined by the Indian Penal Code (IPC), differs from sexual harassment under the POSH Act in terms of scope. The IPC addresses any form of sexual harassment in any location, while the POSH Act specifically focuses on sexual harassment in the workplace. Prior to the drafting of the Vishakha guidelines, neither the judiciary nor the legislature had been able to develop laws addressing the prevention of sexual harassment in the workplace. It was the Vishakha guidelines that provided protection to the rights of working women. The law's primary objective and approach extend beyond preventing sexual harassment in the workplace; it also aims to prevent any form of hostility or discrimination against women. While it is crucial to provide women with sufficient opportunities, it is equally important to ensure they are treated with dignity and respect in the workplace. The origin of the Vishakha guidelines can be traced back to the Bhanwari Devi case[3]. Bhanwari Devi, a social worker from Rajasthan, was subjected to a gang rape while working under the Rajasthan government's Women's Development Programme. The offenders received significantly lighter sentences than those typically given for the crime of rape. This case inspired numerous women's groups and NGOs to file a Public Interest Litigation through the Vishakha platform, leading to the development of the Vishakha guidelines to protect women in the workplace.


VISHAKA GUIDELINES

The Vishakha guidelines were introduced to protect women in the workplace. They were established by the Supreme Court of India in 1997 following multiple Public Interest Litigations filed in response to the Bhanwari Devi case judgment. These guidelines outline the procedure to be followed in cases of sexual harassment at the workplace. Prior to their implementation, the legal system in our country was inadequate in providing sufficient safety measures for women in the workplace, as there was no legislation in place to ensure their protection. The objective of the Vishakha guidelines was to impose an obligation on employers to provide assistance to victims of sexual harassment and prevent them from terminating the employment of such victims to evade liability.

The guidelines were subsequently replaced by the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act of 2013. However, the Act draws its foundation from the guidelines with certain additions. The key features of the Vishakha guidelines include:

  1. Creating a safer working environment.

  2. Imposing the duty on employers to file a complaint in cases of sexual harassment.

  3. Establishment of a redressal committee.

  4. Increasing awareness among employers about sexual harassment.[4]

These fundamental features of the Vishakha guidelines played a crucial role in transforming sexual harassment laws in India. In a country that upholds the concept of the Rule of Law, equality before the law is a vital principle. Therefore, safeguarding women from all forms of sexual harassment in the workplace is an important responsibility fulfilled by the judiciary through the Vishakha guidelines.


CONSEQUENCE OF VISHAKHA GUIDELINES

The objective of the Vishakha guidelines was to address the issue of hostile environments for women in the workplace. However, it became evident that the guidelines alone were not sufficient in effectively preventing such harassment. Consequently, there was a need to create a specific statute that focused on the prevention of sexual harassment in the workplace. In response, the Parliament enacted the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act in 2013. The bill for this Act was passed in Parliament on September 2, 2012. The statute drew its framework from the Vishakha guidelines but included additional provisions. The Act aims to provide redressal and preventive measures for sexual harassment against women in the workplace. In the case of Vishakha v State of Rajasthan[5], the court stated that Article 19(1)(g) includes the right to a safe working environment, which is ensured through the provisions of the 2013 Act.


The Act encompasses several key features, including:

  1. Internal and Local Complaint Committees: The Act mandates the establishment of Internal Complaint Committees (ICCs) by employers, consisting of at least ten members with at least half being women[6]. The committee must be headed by a woman. Additionally, Local Complaint Committees (LCCs) are to be established at the district level by the government. The LCCs handle complaints from workplaces where ICCs have not been constituted[7].

  2. Interim Relief: The Act provides for interim relief to be granted to the aggrieved party. The ICC or LCC can provide relief, such as transferring the aggrieved party or the respondent or granting the aggrieved party leave for a maximum period of three months.

  3. False or Malicious Complaints: In cases where a complaint made by the aggrieved woman is found to be false or malicious, the district officer is responsible for taking appropriate action against the complainant.

  4. The Act plays a crucial role in establishing a dignified and safe working environment for women.

GENDER-SPECIFIC ASPECT

The preamble of the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 clearly states that the Act aims to provide protection against sexual harassment of women at the workplace and addresses the prevention and redressal of complaints related to such harassment. The gender-specific nature of the Act has sparked debates regarding its alleged bias towards women. It is a well-known fact that women have long been subjected to sexual harassment in the workplace. Consequently, there is a general presumption that when a woman files a complaint regarding any form of harassment, her allegations should not be false. This presumption can create apprehension in the minds of men, leading to debates on gender bias.

One of the criticisms of the Act is that it fails to address cases in which men have been victims of sexual harassment. Currently, the POSH Act does not provide any provisions for aggrieved men, and the Internal Complaints Committee (ICC) has no jurisdiction to address cases of sexual harassment against men. Critics argue that the Act is biased against men because it may bring shame to those who have been falsely accused of sexual harassment. As a result, there is a call for making the Act more inclusive through amendments.

It is often contended that the primary goal of the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013, which is to create a discrimination-free working environment, remains unachieved due to its lack of gender neutrality. Critics argue that there is a need to create a gender-neutral Act that addresses the concerns and experiences of both men and women in relation to sexual harassment.


CONCLUSION

Since the formulation of the Vishakha guidelines in 1997, it has been 26 years, and the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act was passed about a decade ago. Despite these developments, women continue to face harassment in the workplace. While the Act has made progress in creating a better working environment for women, there is still much work to be done in achieving a discrimination and harassment-free workplace for working women. However, it is essential to remain optimistic and remember that change takes time and effort. If we believe in the idea of change and are willing to work hard, our dream of a better working environment will eventually become a reality.

The implementation of the Act has not been stringent across all organizations, and it is crucial to address this issue. The government should prioritize taking strict action against organizations that do not comply with the provisions of the Act. It is necessary to ensure that the Act is effectively enforced to protect the rights and well-being of women in the workplace.

Regarding the gender-specific aspect of the Act, it is important to differentiate between being gender-specific and being gender-biased. The Act is gender-specific as it specifically covers cases of sexual harassment against women. However, it also recognizes the importance of preventing any misuse of the Act and allows for actions to be taken against individuals who make false or malicious use of its provisions. This provision helps safeguard against any potential misuse and ensures that the Act serves its intended purpose without being biased or discriminatory.


REFERENCES [1] INDIA CONST. art. 14 [2] INDIA CONST. art. 21 [3]Vishaka & Ors. V/S State of Rajasthan, AIR 1997 SCC 3011 [4] Ipleaders, https://blog.ipleaders.in/vishaka-guidelines/, (last visited on 8th June, 2023) [5] Vishaka & Ors. V/S State of Rajasthan, AIR 1997 SCC 3011 [6] Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, § 4 [7] Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, § 6

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