‘It’s time to rethink Vishaka to include past incidents’3 min read . Updated: 22 Oct 2018, 09:49 AM IST
A major flaw that needs addressing in cases of workplace sexual harassment under the 1997 Vishaka guidelines (these were superseded by the Prevention of Sexual Harassment of Women at the Workplace Act, 2013) is its failure to apply to cases retrospectively
Cases of sexual harassment sometimes dating back decades and surfacing only now have exposed some of the inadequacies of the legal system in providing redress to victims.
Across the last two weeks, dozens of Indian women have come out with stories of alleged sexual harassment and assault they had to endure across years against politicians, journalists, and members of the advertising and film industries.
A major flaw that needs addressing in cases of workplace sexual harassment under the 1997 Vishaka guidelines (these were superseded by the Prevention of Sexual Harassment of Women at the Workplace Act, 2013) is its failure to apply to cases retrospectively. This translates to cases of sexual harassment at the workplace before the enactment of the Vishaka guidelines finding little or no chance of legal resolution today.
Justice Sujata Manohar, the lone woman Supreme Court judge who was part of the three-judge bench that laid down the Vishaka guidelines, thinks it’s time for a rethink. “It is time we need to rethink how to deal with sexual harassment, especially in cases where the incident has taken place in the past. In these circumstances, the Vishaka guidelines especially need to be re-examined with regard to the preventive and remedial measures for the woman," she said, Indian Express reported on Friday.
Manohar’s views have found further resonance in legal circles. Senior advocate Rebecca John said, “I am in complete agreement with Justice Sujata Manohar; we have said this often enough to both policy makers and at seminars that while the POSH Act is a good first step, it needs to evolve because it’s only when you put a law into operation, you become aware of its shortcomings." She is also concerned about the three-month limitation period under the Vishaka guidelines.
“Vishaka guidelines came into effect only in 1997 and then the Act was passed by parliament in 2014—so what happens to the multitude of complaints that relate to a period when there was no statutory remedy? The internal complaints committee (ICC) should be given the right to condone the delay in given circumstances. The committee should have the right to look into complaints that belonged to a different time period, and the delay, if just cause is given, should be condoned." John said.
Before 1997, at a time when what constituted sexual harassment was still unclear, the only saving provisions were under the Indian Penal Code(IPC), 1860. Criminal prosecution for sexual harassment however, was barred by a limitation period of two or three years.
The composition and structure of the ICC also poses difficulty, particularly in cases where the allegations are made against those who occupy high positions in the workplace. “The requirement of having majority internal members as part of the ICC needs to be relooked into so as to avoid the potential misuse of influence by the high-ranking official against whom the complaint is made on other committee members of lower rank," John adds.
The ICC mechanism could lead to termination, demotion and transferring the accused to another place; however, criminal prosecution under IPC is far stricter. IPC Section 354 (assault or criminal force to outrage the modesty of a woman) could land the accused in jail up to three years and/or fine; Section 509 (word, gesture or act intended to insult the modesty of a woman) could fetch up to three years in jail and/or fine; and Section 376 (rape) can attract a jail term ranging from seven years to life imprisonment and/or fine.
However, cases under IPC can go on for years. The best bet to address this would be to harmonize the two legal options (under IPC and POSH Act) by having norms allowing courts and ICC to condone and take cognizance of cases beyond their respective limitation periods.
Some experts, however, argue that provisions under IPC are strong enough to address the problem of limitation that arises under the POSH Act, since that period is longer and the criminality harsher under it. (Limitation period under different provisions of IPC is two or three years while under POSH Act, it’s three months.)
“Having a three-month timeline under the workplace mechanism has to be seen in the background that it becomes difficult to gather evidence to prove the allegations as more time passes. Many times, the accused is no longer working with the organization when allegations are raised. The problem is not really with the law; it is with crossing the first threshold of a filing a complaint because once that is done, then both mechanisms are available. But cases dating back are better addressed under IPC, since it becomes difficult for the ICC to deal with such complaints in a fruitful manner," said advocate Aishwarya Bhati.