The Vishaka Guidelines, framed by the Supreme Court of India in 1997, must be followed by both government and private institutions. Employers should not be allowed to violate the fundamental rights of women in the workplace.
What are the Challenges with Women’s Workforce Participation?
Sexual Harassment:
- In recent years, sexual harassment in the workplace has become one of the most pressing issues affecting women across the globe.
- Nearly 31,000 complaints of crimes committed against women were received by the National Commission for Women (NCW) in 2022, the highest since 2014.
- About 54.5 % of the complaints were received from Uttar Pradesh. Delhi recorded 3,004 complaints, followed by Maharashtra (1,381), Bihar (1,368) and Haryana (1,362).
Gender Discrimination:
Women are often discriminated against in the workplace, whether in hiring, pay, promotions, or opportunities.
Lack of Diversity:
Organizations with limited diversity may lack understanding and empathy for the experiences of women in the workplace.
Inadequate Support for Working Mothers:
Women with children often face significant challenges in balancing their work and family responsibilities.
Occupational Segregation:
Women are often concentrated in low-paying and traditionally female-dominated fields, while men are more likely to work in high-paying industries and professions.
Vishaka Guidelines
- With reference to the Vishaka vs State Of Rajasthan (Bhanwari Devi case), the Vishaka guidelines were laid down by the Supreme Court in 1997.
- The Vishaka guidelines were legally binding and imposed three key obligations on institutions — prohibition, prevention, and redress.
- Definition of Sexual Harassment – It defines sexual harassment as an unwanted sexual determination that is directly or impliedly intended to cause the following:
- Safer working environment – It is the duty of each employer to provide a safe working environment for each and every employee working in the organization through appropriate efforts and actions.
- Duty of the employer- It is the obligation of the employer to file a complaint if the conduct towards an employee amounts to a criminal offence which is punishable under the Indian Penal Code.
- Complaint redressal committee – It is mandatory for all organizations to set up a complaint redressal committee to ensure that the complaints of the employees are dealt with properly.
- Employer’s assistance- If the employee is sexually harassed or tortured by a third party, an employer should assist the employee in every possible manner.
- Awareness- It is the duty of the employer to spread awareness in his organization with regard to matters pertaining to sexual harassment and the safety of women.
- Duty of government – The guidelines urged the centre and the state government to pass the necessary legislation so as to ensure that the private sector is also bound by these guidelines.
- The Vishaka guidelines were later on replaced by the Sexual Harassment of Women at the Workplace (prevention, prohibition and Redressal) Act, 2013.
Key features of the POSH Act, 2013
- Definition of Sexual Harassment – It defines sexual harassment as an unwanted sexual determination that is directly or impliedly intended to cause the following:
- Physical contact or advances
- A demand or request for sexual favours
- Sexually coloured remarks
- Showing pornography
- Any other unwelcome conduct, whether it is physical, verbal, or non-verbal
- Additionally, the Act mentions five circumstances that amount to sexual harassment
- The promise of preferential treatment in her employment
- The threat of detrimental treatment
- Threat about her present or future employment status
- Interference with work or creating a hostile work environment
- Humiliating treatment likely to affect her health or safety
- The Ministry of Women & Child Development’s Handbook on Sexual Harassment of Women at Workplace constitutes more stances on sexual harassment.
- Sexually suggestive remarks, serious or repeated offensive remarks, inappropriate questions about a person’s sex life
- Display of sexist or offensive pictures, posters, MMS, SMS, WhatsApp, or emails
- Intimidation, threats, blackmail around sexual favours
- Unwelcome social invitations with sexual overtones
- Unwelcome sexual advances
Complaints
- Every employer is required to constitute an Internal Complaints Committee (ICC) at each office or branch with ten or more employees.
- An ICC constituted by an organization should have a minimum of 4 members, including an external member, and at least one-half of the ICC members should be women.
- The District Officer is required to constitute a Local Complaints Committee at each district and, if required, at the block level.
- The Complaints Committees are required to provide for conciliation before initiating an inquiry if requested by the complainant.
- The Complaints Committees have the powers of civil courts with respect to summoning and examining any person and producing documents.
Procedure for complaint
- It is not compulsory for the aggrieved victim to file a complaint for the ICC to act.
- If the woman cannot complain because of physical or mental incapacity or death or otherwise, her legal heir may do so.
- Under the Act, the complaint must be made within three months from the date of the incident. However, the ICC can extend the time limit upon its satisfaction.
- The ICC may either forward the victim’s complaint to the police or it can start an inquiry that has to be completed within 90 days.
- When the inquiry is completed, the ICC must provide a report of its findings to the employer within ten days.
- The report is also made available to both parties.
Identity
The identity of the woman, respondent, witness, and any information on the inquiry, recommendation, and action taken should not be made public.
Action
- If the allegations of sexual harassment are proven, the ICC recommends that the employer take action in accordance with the provisions of the company’s service rules.
- It also recommends that the company deduct from the salary of the person found guilty.
Compensation
Compensation is determined based on five aspects:
- Suffering and emotional distress caused to the woman
- Loss of career opportunity
- Her medical expenses
- Income and financial status of the respondent
- Feasibility of such payment
Appeal
After the recommendations, the aggrieved woman or the respondent can appeal in court within 90 days.
False complaints
Section 14 of the Act provides that the ICC may recommend that the employer take action against the person who has made the malicious complaint and false evidence.