Sexual harassment at workplace and the Vishakha guidelines

New Delhi: Sexual assault charges against former Tehelka editor, Tarun Tejpal, has yet again brought to the fore the need for organisations to abide by laws and respond swiftly to the situation. In this case, however, the organisation in question did not even have a committee to probe into such matters as stipulated by the law. The victim of the alleged sexual assault has in an email to former managing editor Shoma Choudhary urged that the publication establish an in-house cell to tackle cases of sexual harassment at the workplace, as per the requirements of the ‘Vishakha judgment'. It was in 1997 when the Supreme Court of India laid down formal guidelines for dealing with sexual harassment at the workplace following the gang rape of a social worker, Bhanwari Devi from Bhateri in Rajasthan. According to reports, despite a long legal battle that ensued, Bhanwari Devi did not get justice and led to women's rights group – Vishakha – filing public interest litigation (PIL) in the Supreme Court. The petition, filed by the women's right group Vishaka and four other women's organisations in Rajasthan against the State of Rajasthan and the Union of India, resulted in what are popularly known as the Vishaka Guidelines. Definition of sexual harassment at work The Supreme Court directive of 1997 clearly and unambiguously provides an answer to the question 'What is sexual harassment?'. As defined in the Supreme Court guidelines, sexual harassment includes such unwelcome sexually determined behaviour as: Physical contact A demand or request for sexual favours Sexually coloured remarks Showing pornography Any other unwelcome physical, verbal or non-verbal conduct of a sexual nature, for example, leering, telling dirty jokes, making sexual remarks about a person's body, etc As per Vishaka guidelines, employer is expected to set up an Internal Complaints Committee at each office or branch, of an organization employing at least 10 employees. Also, the government should set up a 'Local Complaints Committees at the district level to investigate complaints regarding sexual harassment from establishments where the Internal Complaints Committee has not been constituted on account of the establishment having less than 10 employees or if the complaint is against the employer. The Act also requires constitution of the committees, process to be followed for making a complaint and inquiring into the complaint in a time bound manner. Also, the employer has to provide a safe working environment. The punishments of indulging in acts that may constitute sexual harassment has to be displayed at the workplace, says the ACT, Also, the employers have to organise workshops and awareness programmes at regular intervals for sensitizing employees on the issues and implications of workplace sexual harassment and organizing orientation programmes for members of the Internal Complaints Committee. The employer is required to treat sexual harassment as a misconduct under the service rules and initiate action for misconduct and monitor the timely submission of reports by the Internal Complaints Committee. The Complaints Committee should be headed by a woman and not less than half of its member should be women. Further, to prevent the possibility of any undue pressure or influence from senior levels, such Complaints Committee should involve a third party, either NGO or other body who is familiar with the issue of sexual harassment. If an employer fails to constitute an Internal Complaints Committee or does not comply with any provisions contained therein, the Sexual Harassment Act prescribes a monetary penalty of up to INR 50,000. A repetition of the same offence could result in the punishment being doubled and / or de-registration of the entity or revocation of any statutory business licenses.