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Vishakha guidelines

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      Tina DU

      Vishakha v State of Rajasthan [1997(7) SCC 323].

      1. The objective of putting in place guidelines in Vishaka was to
        ensure that the workplace was rendered safe, and assure female employees
        that in the event of similar future behavior, the employer would take
        prompt and serious action. In that sense, the requirement of taking action
        is not merely subjective to the incident, or facts of a case, it is to comply
        with, and sub-serve a wider societal purpose. It also signifies the
        employer’s willingness to take remedial action that would assure the
        female employees and officials that their workplace is safe from harassment
        and discrimination. The Supreme Court’s later decision in Medha Kotwal Lele v Union of India added another dimension to the Vishaka judgment;
        its directions are far reaching. They are reproduced here:
        “16. In what we have discussed above, we are of the considered
        view that guidelines in Vishaka should not remain symbolic and
        the following further directions are necessary until legislative
        enactment on the subject is in place.
        (i) The States and Union Territories which have not yet carried
        out adequate and appropriate amendments in their respective Civil
        Services Conduct Rules (By whatever name these Rules are
        called) shall do so within two months from today by providing
        that the report of the Complaints Committee shall be deemed to
        be an inquiry report in a disciplinary action under such Civil
        Services Conduct Rules. In other words, the disciplinary authority
        shall treat the report/findings etc. of the Complaints Committee
        as the findings in a disciplinary inquiry against the delinquent
        employee and shall act on such report accordingly. The findings
        and the report of the Complaints Committee shall not be treated
        as a mere preliminary investigation or inquiry leading to a
        disciplinary action but shall be treated as a finding/report in an
        inquiry into the misconduct of the delinquent.
        (ii) The States and Union Territories which have not carried out
        amendments in the Industrial Employment (Standing Orders) Rules
        shall now carry out amendments on the same lines, as noted
        above in clause (i) within two months.
        (iii) The States and Union Territories shall form adequate number
        of Complaints Committees so as to ensure that they function at
        taluka level, district level and state level. Those States and/or
        Union Territories which have formed only one Committee for the
        entire State shall now form adequate number of Complaints
        Committees within two months from today. Each of such
        Complaints Committees shall be headed by a woman and as far
        as possible in such Committees an independent member shall be
        (iv) The State functionaries and private and public sector
        undertakings/ organisations/ bodies/institutions etc. shall put in place sufficient mechanism to ensure full implementation of the
        Vishaka guidelines and further provide that if the alleged harasser
        is found guilty, the complainant – victim is not forced to work
        with/under such harasser and where appropriate and possible the
        alleged harasser should be transferred. Further provision should
        be made that harassment and intimidation of witnesses and the
        complainants shall be met with severe disciplinary action.
        (v) The Bar Council of India shall ensure that all bar associations
        in the country and persons registered with the State Bar Councils
        follow the Vishaka guidelines. Similarly, Medical Council of India,
        Council of Architecture, Institute of Chartered Accountants,
        Institute of Company Secretaries and other statutory Institutes
        shall ensure that the organisations, bodies, associations, institutions
        and persons registered/affiliated with them follow the guidelines
        laid down by Vishaka. To achieve this, necessary instructions/
        circulars shall be issued by all the statutory bodies such as Bar
        Council of India, Medical Council of India, Council of
        Architecture, Institute of Company Secretaries within two months
        from today. On receipt of any complaint of sexual harassment
        at any of the places referred to above the same shall be dealt
        with by the statutory bodies in accordance with the Vishaka
        guidelines and the guidelines in the present order.
      2. We are of the view that if there is any non-compliance or
        non- adherence to the Vishaka guidelines, orders of this Court
        following Vishaka and the above directions, it will be open to the
        aggrieved persons to approach the respective High Courts. The
        High Court of such State would be in a better position to effectively
        consider the grievances raised in that regard.”
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