Thursday, November 29, 2012

The Indian working woman and the Law

During the first week at work, orientation for new employees often includes a session on the company's policies on sexual harassment. Despite the rules and procedures set in place, many women do find themselves vulnerable. As a working woman, do you know what is the law around sexual harassment in India?

Prajnya, in partnership with FLEXI Careers India, Empowering Women in IT (eWIT), will be holding a round table discussion on workplace sexual harassment on 30 November. Human resources mangers in the IT/ITES sector have been invited to discuss their best practice management around this sensitive issue.

What Laws govern Workplace Sexual Harassment in India?
No specific law governs workplace sexual harassment in India. However, the Indian Penal Code, 1860, under Section 354 deals with assault or criminal force to a woman with the intent to outrage her modesty, and under Section 509, deals with word, gesture or act intended to insult the modesty of a woman. In 1997, the Supreme Court in Vishaka v State of Rajasthan, define workplace sexual harassment and suggested guidelines for prevention and redress.
What happened in the Vishaka case?
Bhanwari Devi, a social worker of a government programme, tried to stop the marriage of an infant girl as part of her work. The Gujjar family was enraged. She was gang-raped by five men including the infant girl's father in front of her husband. She was not medically examined, nor given any room to file a complaint in the police station. The trial court acquitted the accused. The Rajasthan High Court noted that it was a case of gang-rape out of vengeance. Women's groups came together and filed a petition before the Supreme Court, under the name Vishaka, which resulted in the hallmark judgement on August 13, 1997.
What does the Vishaka Judgement say?
For the first time, the woman employee was recognized, and her rights were given the respect they deserved. The guidelines laid down by the court encompass all that is necessary to prevent and address workplace sexual harassment. The employer has the duty to prevent and deter the commission sexual harassment and to provide the procedures necessary for the resolution. Organizations need to explicitly prohibit sexual harassment through notifications. The employer should constitute a complaints committee, headed by a woman, and has to have at least half of its members as women. To avoid undue pressure from senior levels in the hierarchy, it should comprise a third party with competence sufficient to handle a complaint of such a nature. Employers and those in charge will also report on the compliance with these procedures. Workers and employees should be allowed to raise issues of sexual harassment at their meetings and in other appropriate forums. It is to be discussed with affirmative spirit at employer-employee meetings. If a third party is responsible for sexual harassment, the employer and person in charge is under an obligation to take necessary steps to assist the victim and take preventive measures.

A special thanks to Kirthi Jayakumar who contributed to this article. Kirthi is a lawyer who is specialized in Public International Law and Human Rights. She runs a journal and consultancy that focuses on International law, called A38.

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