Finally, The Supreme Court Acknowledges The Problem

Newsletter Sept 1997

Women have always had to face sexual harassment at the workplace - from male colleagues and bosses. These acts of aggression against women have a deep and adverse impact on the psyche, making it difficult for women to work. The daily humiliation is compounded by the forced repeated encounters with the offender, who is often a person in power in the office.

Protesting against sexual harassment is extremely difficult, because it most often results in a hostile work environment, delay in promotion, or even loss of one's job. The serious consequences of raising objections would make any woman think a hundred times before she decides to take action. All along, women's silence on the subject has been taken for granted. Hence, the women's movement has, over the years, been voicing women's resistance to this kind of male violence. But societal recognition of the problem has not been forthcoming.

However, on August 13th 1997, a three-judge bench of the Supreme Court headed by the Chief Justice delivered a significant judgement on sexual harassment at the workplace, ratifying guidelines drawn up by women’s groups. The petition was filed in 1992 by Vishakha, Kali, Jagori and other women’s groups following the brutal gang-rape of Bhanwari Devi, a Sathin in the government-run Women’s Development Programme. She was raped during the course of her work of preventing child marriage in Rajasthan. This writ peti­tion was filed for the enforcement of fundamental rights of working women under Articles 14, 19 and 21 of the Constitution which guarantee the right to equality, life and liberty to all citizens.

The Court also recognised that sexual harassment at the workplace is violative of Article 19 which guarantees the right to practice any profession, trade or business. Since the Right to Work de­pends on the availability of a safe working environment, and the Right to Life means a life with dignity; the hazards posed by sexual harassment need to be removed for these rights to have any meaning. In the absence of laws to tackle the problem, the Court issued a set of guidelines to deal with sexual harassment at the workplace. These directions will be binding and enforcea­ble in law until suitable legislation is enacted to occupy the field.

Judicial recognition of the serious nature of the offence of sexual harassment is indeed a positive step. These acts of violence against women have, for too long been dismissed as ‘light flirtation’, ‘eve-teasing’ and harmless jokes. Any woman who objected to sexual harassment was looked upon as ‘hyper-sensitive’ and lacking in a sense of humour. Thus, these guide­lines, which are enforceable until there is a relevant law, are a vindication of the struggle to get sexual harassment the serious attention it deserves. The definition of sexual harassment covers a wide spectrum of objectionable male be­haviour, which can prove to be extremely helpful.

The judgement, while it gives overall directions, is vague about implementation. It is not clear how exactly affected women should go about registering a complaint, and who exactly will look into the complaint. With regard to women workers in the unorganised sector, in which the large majority of women work, it is not clear how redressal mechanisms will work. The same applies to domestic workers who are sexually harassed by their employers, and landless labourers by landlords and contractors, both of which are especially common. There needs to be more clarity so that the guidelines do not remain mere rhetoric, but actually help women who have been sexually har­assed.

Setting up of Complaints Committees with NGO representatives in every single workplace does not seem practical. Moreover, NGO's themselves are not free from labour disputes and sexual harassment itself. A more workable plan needs to be evolved. Further, merely having a woman-headed Committee or women representatives is not suffi­cient to ensure a fair hearing for women who have been sexually harassed. The women representatives and head should be women with a proven committment to women’s issues.

Moreover, the Supreme Court guidelines place a very high degree of faith in the employer to take up the issue, ensure redressal and carry out disciplinary action. This faith is largely misplaced. It has been proven time and again that it is most often, the employer or person-in-charge himself who is guilty of sexual­ly harassing women employees under his supervision.

Often, although the employer may not be directly responsible for sexual harassment, he may hush up the issue, squash complaints, or even support the offenders. In such situations, the woman employee will be especially vulnerable because the abuse of power and authority by superiors is extremely difficult to resist. The struggle to prosecute bosses and seniors is a long and hard one, as Dr Sushma Merh (SC Bhatia case), Dr Sehla Agarwal (BSN Reddy case) and other gutsy women know all too well. It is therefore essential to have a neutral body investigating cases of sexual harassment at the workplace.

Further, sexual harassment has long been a tool to attempt to subdue women who are active in Trade Unions or demands for work­er’s rights. Women are often the vulnerable targets to break agitations and dampen dissent. Especially in such situations, faith in the employer’s goodwill to take up cases of sexual harassment (when he himself may be one of the culprits) is mis­placed.

Despite these shortcomings, the guidelines can definitely be used to our advantage. It is necessary to create awareness of them and to encourage the use of redressal mechanisms effectively.

But this is only the first step. It is also necessary for women's organisations, trade unions, peoples' organisations, workers' groups, and all professionals, both male and female, to press for these guidelines to be made the law of the land as soon as possible, and to challenge power dynamics in workplaces where sexual harassment is used as a method of intimidation and control of women. Unless these basic issues are tackled, sexual harassment will continue to make workplaces unsafe for women.