Supreme Court Guidelines against Sexual Harassment

Hishaka Guidelines against Sexual Harassment at Workplace

Guidelines and norms laid down by the Ho'nble Supreme Court in Vishaka and Others Vs. State of Rajasthan and Others (JT 1997(7) SC 384)

HAVING REGARD to the definition of 'human rights' in Section 2 (d) of the Protection of Human Rights Act, 1993,

TAKING NOTE of the fact that the present civil and penal laws in India do not adequately provide for specific protection of women from sexual harassment in work places and that enactment of such legislation will take considerable time,

It is necessary and expedient for employers in work places as well as other responsible persons or institutions to observe certain guidelines to ensure the prevention of sexual harassment of women.

DUTY OF THE EMPLOYER OR OTHER RESPONSIBLE PERSONS IN WORK PLACES AND OTHER INSTITUTIONS

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.

DEFINITION

For this purpose, sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as:

a) Physical contact and advances;

b) A demand or request for sexual favours;

c) Sexually coloured remarks;

d) Showing pornography;

e) Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

Where any of these acts is committed in circumstances where-under the victim of such conduct has a reasonable apprehension that in relation to the victim's employment or work whether she is drawing salary, or honorarium or voluntary, whether in government, public or private enterprise such conduct can be humiliating and may constitute a health and safety problem. It is discriminatory for instance when the woman has reasonable grounds to believe that her object would disadvantage her in connection with her employment or work including recruiting or promotion or when it creates a hostile work environment. Adverse consequences might be visited if the victim does not consent to the conduct in question or raises any objection thereto.

PREVENTIVE STEPS

All employers or persons in charge of work place whether in public or private sector should take appropriate steps to prevent sexual harassment. Without prejudice to the generality of this obligation they should take the following steps:

A. Express prohibition of sexual harassment as defined above at the work place should be notified, published and circulated in appropriate ways.

B. The Rules/Regulations of Government and Public Sector 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. As regards private employers, steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946.

D. 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 work places and no employee woman 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 particular, it should ensure that victims or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment. The victims of sexual harassment 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, appropriate disciplinary action should be initiated by the employer in accordance with those rules.

COMPLAINT MECHANISM

Whether or not such conduct constitutes an offence under law or a breach of the service rules, an appropriate complaint mechanism should be created in the employer's organisation for redress of the complaint made by the victim. Such complaint mechanism should ensure time bound treatment of complaints.

COMPLAINTS COMMITTEE

The complaint mechanism, referred to above, should be adequate to provide, where necessary, a Complaints Committee, a special counsellor or other support service, including the maintenance of confidentiality.

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.

The Complaints Committee must make an annual report to the Government department concerned of the complaints and action taken by them.

The employers and person in charge will also report on the compliance with the aforesaid guidelines including on the reports of the Complaints Committee to the Government department.

WORKER'S INITIATIVE

Employees should be allowed to raise issues of sexual harassment at a workers' meeting and in other appropriate forum and it should be affirmatively discussed in Employer-Employee Meetings.

AWARENESS

Awareness of the rights of female employees in this regard should be created in particular by prominently notifying the guidelines (and appropriate legislation when enacted on the subject) in a suitable manner.

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 Central/State Governments are requested to consider adopting suitable measures including legislation to ensure that the guidelines laid down by this order are also observed by the employers in Private Sector.

These guidelines will not prejudice any rights available under the Protection of Human Rights Act, 1993.

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Manipur encounters fake, says SC probe panel

NEW DELHI APRIL 5, 2013[TOI]--- A probe commissioned by the Supreme Court has held security forces guilty of killing seven persons, including a 12-year-old boy, in six fake encounters in Manipur during 2009-10 in what trains the spotlight once again on the misuse of the Armed Forces Special Powers Act (AFSPA).

Besides the minor, Mohd Azad Khan, a three-person investigation panel blamed security forces for the death of Khumbongmayum Orsonjit Singh, Nameirakpam Gobind Metei and Nameirakpam Nobo Meitei, Elangbam Kiranjit Singh, Chongthan Umakanta and Akoijam Priyobrata.

Shocked by the report, a bench of Justices Aftab Alam and Ranajana Desai said a major portion of the blame lay at the door of the Centre. "This is not the best way to integrate (north-eastern) people. It is the best way to alienate them," the judges added.

Court seeks response on fake encounters

They termed as distressing the contents of the report, compiled by retired Justice Santosh Hegde of the apex court, former CEC J M Lyngdoh and ex-Karnataka DGP Ajay Kumar Singh, and said security forces and police threw caution to the wind while following guidelines in conducting such "operations". They said the security forces have conducted raids and resorted to firing merely on the basis of source information without bothering to cross-check even once the authenticity of the 'source'.

It sought responses from the Centre, Manipur government and National Human Rights Commission (NHRC) to the Hegde panel's report within five days.

Though allegations of excesses by troops in militancy-hit Manipur have been rampant, this is the first instance that a court-appointed probe has endorsed the charge of "gross violation of human rights" by the security forces operating under the much-disliked shield of AFSPA.

The court lauded the effort of the three-member inquiry committee for meticulously collecting evidence from complainant, witnesses, security forces and police before concluding that "none of these six incidents qualified as a genuine one".

It said, "What we find distressing is that the elaborate guidelines laid down by the Supreme Court, series of guidelines issued by Army headquarters, NHRC and the Manipur government have been confined to the papers. Nothing is followed in practice (by armed forces and police while carrying out the operations)."

The bench said, "The Army authorities have issued a series of dos and don'ts. But, unfortunately none of the guidelines or the dos and don'ts is followed in actual operations. One of the issues before the court is how to ensure the state police and security forces follow the guidelines".

Given the detailed scrutiny done by the apex court in fake encounter killings of Sohrabuddin and Tulsiram Prajapati in Gujarat, both the Union and Manipur government would have lot to answer for the six fake encounters involving the death of seven innocent persons in Manipur.

Last October, the court had entertained two PILs — one on fake encounter killings and another for the withdrawal of AFSPA from Manipur. In January, 2013, the court had appointed the three-member panel headed by Justice Hegde to inquire into the encounter deaths.

The PIL by NGOs — Extra-judicial Execution Victims Families' Association of Manipur through Neena N and Human Rights Alert through Babloo Loitongbam — alleged apathy on the Centre and Manipur government's part to bring to book the guilty among armed forces and state police, which allegedly were responsible for 1,528 extra-judicial killings in last 30 years.

The petition gave details of each of the 1,528 people killed in fake encounters since 1979. It said though the apex court upheld the constitutional validity of AFSPA 15 years ago, it had issued certain dos and don'ts to the security forces. But, these guidelines were seldom followed, it alleged.

On October 19, 2012, the apex court had also issued notices to the Centre and Ibobi Singh government on another PIL by former director of Manipur Health Services, Th. Suresh Singh, seeking withdrawal of AFSPA from the state.

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Supreme Court freeds 3 gang rapists after they agreed to compensate victim

New Delhi, Feb 22 2011 [INDIAN EXPRESS] --- In an unusual order, the Supreme Court let off three gang rapists after they claimed a 'compromise formula' with the victim and agreed to pay her a fine of Rs 50,000 each for their offence. A bench of justices Markandeya Katju and Gyan Sudha Mishra reduced to three and half years the 10-year sentence awarded to three gang rapists who took the plea that both the convicts and the victim were now happily married to different people and "wanted to live peacefully." Under Section 376(G) of the IPC, the minimum sentence to the gang rapists is 10 years, which may extend even to life imprisonment. Though Justice Gyan Sudha Mishra was not initially inclined to compound (close the case by way of fine)the matter as it was not a compoundable offence, the apex court later relented and agreed to let them off provided the convicts paid Rs 50,000 each to the victim. The apex court ordered that " the amount shall be paid to the victim within three months", failing which the same shall be recovered under the Land Revenue Act from the trio and paid to the victim. In this case, the convicts Baldev Singh, Gurmail Singh and Hardeep Singh, all said to be agricultural farmers, had gangraped the victim in Punjab's Ludhiana district on March 5, 1997. The sessions court had awarded 10 years imprisonment to the convicts. The Punjab and Haryana High Court had dismissed the convicts' appeal, following which they appealed in the apex court.

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