-by Deepali Chandhoke

                        As mentioned in the previous article, undeterred by the absence of legislation
                        covering the issue of Sexual Harassment at the Workplace, the Supreme Court has
                        laid down the necessary guidelines and norms in, Vishaka v. State of Rajasthan,
                        for the protection of the fundamental rights of women, violated, as a result of
                        Sexual Harassment at Work.
 

                        The Court has emphasised that the guidelines and norms being laid down by it had
                        to be duly observed at all workplaces or other institutions until a legislation is
                        enacted for this purpose and that these should be treated as law under Art 141 of
                        the Constitution.
 

                        These guidelines are in accordance with the recommendations and conventions of
                        various international organisations like the ILO and the European Communities
                        Commission.

                        The European Communities Commission has emphasised worldwide that the most
                        effective method of combating with this menace is to develop and implement a
                        preventive policy at the enterprise level.

                        Taking their recommendations into considerations, the Supreme Court has laid
                        down the following guidelines:

                        Preventive steps :   The employers should take appropriate steps to prevent sexual
                        harassment.

                              These include:

                          (a) Express prohibition of sexual harassment at the workplace should be notified,
                        published and circulated in appropriate ways.
 
                          (b) The rules/regulations of government and public bodies relating to conduct and
                        discipline should include  rules/regulations prohibiting sexual harassment and
                        provide for appropriate penalties in such rules against the offender.

                          (c) Appropriate work conditions should be provided in respect of work, leisure,
                        health and hygiene to further ensure that there is no hostile environment towards
                        women at workplaces and no woman  employee should have  reasonable grounds
                        to believe that she is disadvantaged in connection with her  employment.

                        Criminal Proceedings:

                        Where such conduct amounts to a specific offence under the Indian Penal Code or
                        under any other law, the employer shall initiate appropriate action in accordance
                        with law by making a complaint with the appropriate authority.
                        In order to ensure that the victims are not discriminated against, while dealing with
                        complaints of sexual harassment, the victims should have the option to seek transfer
                        of the perpetrator or their own transfer.

                        Disciplinary action:

                        Where such conduct amounts to misconduct in employment as defined by the
                        relevant service rules, disciplinary action should be initiated by the employer in
                        accordance with these rules.

                        Complaint Mechanism:

                        Whether or not such conduct constitutes an offence under law or a breach of the
                        service rules, a complaint mechanism should be created in the organisation for
                        redress of the complaint made by the victim.

                        Complaints Committee:

                        A complaint mechanism should provide for a Complaints Committee. The
                        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
                        influence from senior levels, the Committee should involve a third party, either NGO
                        or any other body familiar with the issue of sexual harassment.

                        Workers initiative:

                        Employees should be allowed to raise issues of sexual harassment in workers
                        meetings and other appropriate forums.

                        Awareness:

                        Awareness of the rights of female employees in this regard should be created in
                        particular by prominently notifying the guidelines.

                        Third party harassment:

                        Where sexual harassment occurs as a result of an act or omission by any third party
                        or outsider, the employer and person in charge will take all steps necessary and
                        reasonable to assist the affected person in terms of support and preventive action.

                        The Supreme Court has held in Apparel Export Promotion Council  V. A.K.Chopra,
                        that in any case involving charge of sexual harassment or attempt to sexually
                        molest, the courts are required to examine the broader probabilities of the case and
                        not get swayed by insignificant discrepancies or narrow technicalities or the
                        dictionary meaning of the expression 'molestation'. The Court also held that the
                        statement of the victim must be appreciated in the background of the entire case.

                        Notwithstanding the availability of potential remedies under labour or criminal or
                        tort laws to a victim of sexual harassment, it is now widely accepted that the most
                        effective way of combating with this menace is to situate the primary remedy
                        against sexual harassment in the Sex Discrimination Law itself.

                        About the author :
                        Deepali Chandhoke is a practising Advocate and she is a Partner at Luthra & Luthra
                        law firm..