How Vishaka Committees fail women they are meant to protect in workplaces
This story dates back to a not-too-hot-not-too-cold evening of September 22, 1992, and is set against a village in Rajasthan.
A rural-level change agent (name withheld) was engaged by the state of Rajasthan as a 'sathin' (friend) to work towards the prevention of the practice of child marriages during the fortnight preceding the festival of Akha Teej, which is considered an auspicious date for marriages.
This woman of courage prevented the marriage of a one-year-old girl during the course of her work.
Her reward?
A group of five men got together and raped her in front of her husband.
It suddenly struck the world that sexual violence was among the many professional hazards women have to work around.
The matter came before the Supreme Court via a PIL filed by a group of NGOs by the name of “Vishaka”, in which the petitioners urged for judicial intervention to make workplaces safer for women. Quite clearly, it was a result of legislative inactivity in the matter.
The case of Vishaka vs State of Rajasthan in 1992 was the landmark case where the Supreme Court dealt with the question of the safety of women from any kind of sexual harassment at the workplace and laid down detailed guidelines for the same.
In 1997, the Supreme Court ordered that every organisation should have an Internal Complaints Committee, called a Vishaka Committee, for women to file complaints of sexual harassment they faced at workplaces.
The Supreme Court defined sexual harassment as any unwelcome, sexually determined physical, verbal, or non-verbal conduct. Examples included sexually suggestive remarks about women, demands for sexual favours, and sexually offensive visuals in the workplace. The definition also covered situations where a woman could be disadvantaged in her workplace as a result of threats relating to employment decisions that could negatively affect her working life.
The Vishaka Guidelines were later superseded by the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. Under the 2013 Act, Internal Complaints Committees were to be set up by organisations.
This placed responsibility on employers to ensure that women did not face a hostile environment, and prohibited intimidation or victimisation of those cooperating with an inquiry, including the affected complainant as well as witnesses.
A full 21 years after the formation of that panel, it is Twitter that has emerged as both police station and court for harassed women, underlining the fact that Vishaka Committees have failed at making workplaces any safer for women.
Why did Vishaka Committees fail women?
To answer this question, it is imperative to look at what the guidelines envisage to ensure that women are not denied equality at work.
The guidelines state: “It shall be the duty of the employer or other responsible persons in work places or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts, of sexual harassment by taking all steps required.”
‘Employers and responsible persons’, often men, acted rather irresponsibly and in many instances, after cases of sexual abuse surfaced, it was found that such a committee did not even exist, leaving countless women at the mercy of their fate — whose masters, outrageously enough, the men became.
But the real story of dismay for women has emerged from places where Vishaka Committees existed.
A recent instance of sexual harassment at Air India (AI) is a case in point.
When an AI air hostess complained about a senior officer, the ‘supporters’ of the man started spreading rumours that she was used to file the complaint. Over six years, the officer continued to be promoted — even as the harassment continued.
When she wrote to the civil aviation ministry, she was promised that her complaint would be heard by the airline's women's sexual harassment committee.
After listening to the victim's ordeal, the chairperson of the committee, who was also a woman, reportedly said, "Oh, you know how he [the accused] talks. He has even flirted with me like this so many times."
The matter came to light when the woman wrote to Civil Aviation Minister Suresh Prabhu spelling out her ordeal.
The current #MeToo movement
Countless people are raising the pitch that men being named for sexually harassing their female colleagues be sacked by the organisations they work for.
Why aren’t the organisations doing it?
Because legally, they can’t.
Action under the Vishaka Guidelines can be initiated only when the said incident has happened ‘at the workplace’ by an employee at the time of the offence, which means that if the alleged perpetrator has left the organisation, the ICC cannot initiate action against the person.
Also, no Vishaka Committee has the power to take cognisance of a matter suo moto. To put it simply, if a woman does not formally complain to the panel, no inquiry will be initiated, forget about action being taken, even if everybody in the said organisation is aware of what has happened.
The ugly truth is that most cases of sexual harassment happen within the open confines of offices, many people are aware of and witness to it — and yet, the rate at which people are held accountable is almost zero.
The constitution of Vishaka Committees
According to the guidelines, the Internal Complaints Committee should be headed by a woman — and not less than half of its members should be women. Further, to prevent the possibility of any undue pressure or influence from senior levels, such a committee should involve a third party — either an NGO or other body familiar with the issue.
Perhaps the greatest tragedy of Vishaka Committees thus far has been how women failed the panels in their over-enthusiasm to ensure they remain cogs in the wheels of the engines of patriarchy.
The Air India case is just one example of it.
Women in offices continue to work under powerful men. With there being complete opaqueness around how the head of a committee is even chosen, the problem grows bigger. The heads of Vishaka Committees are picked by the heads of organisations, often, if not always — men.
The lone outsider’s voice, which can be the most neutral one, is likely to be silenced by the majority voice.
There is no culture of putting out the findings of committees in the public domain.
There are only judgments that, most often, hand out clean chits to men.
Disciplinary action
The guidelines state, “Where such conduct amounts to misconduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules.”
This again leaves it to the organisation to decide action. Sexual harassment is a criminal offence — and each such incident results in a clear violation of the fundamental rights of 'Gender Equality' and the 'Right of Life and Liberty'. It is a violation of the rights under Articles 14, 15 and 21 of the Constitution. One of the logical consequences of such an incident is also the violation of the victim's fundamental right under Article 19(1) (g) “to practice any profession or to carry out any occupation, trade or business”.
And yet, to treat this only in accordance with service rules means the punishment would hardly exceed sacking a person from the job.
The privileged ‘boys club’ would not find it difficult to accommodate such a person in another organisation, often with a pay and position hike.
These tweets we see now are not only bringing forth testimonies of the ordeal women faced in workplaces. These are screams for help. They are telling us that Vishaka Committees need a shake-up. They are telling women sitting as heads of these committees that they have failed their own. They are holding a mirror to the men at the helm of affairs.
These tweets are telling us how difficult we have made it for women to just exist in workplaces.
Just exist — not even think of professional growth.
Unless we rewrite some of the Vishaka principles now, perhaps discuss new terms of punishment, set clear and inflexible timelines to case hearings and verdicts, and push for greater involvement of external voices who are not benefitted in any way from the work culture they are asked to monitor, we will only see more of what has just transpired.
Corporate groups which are seriously concerned about their public image have been offered a rare opportunity to make their internal mechanisms strong and just enough for complainants to not have to resort to social media for their cases.
This is their chance to make a real difference.
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