In the much applauded case of Vishaka Vs. State of Rajasthan (1997 (6) SCC 241) Hon’ble Supreme Court not only defined sexual harassment but also laid down detailed, first-ever guidelines against prevention and punishment of acts of sexual harassment against women at workplace, obligating the employers, both in public and private sector, interalia to put in place procedures for prevention and punishment of acts of sexual harassment against women within the area of their control/operation.

The Vishaka guidelines were however only intended to fill in the gap till such time as the legislature enacted an appropriate law on the subject.

In the recent judgement of Medha Kotwal Lele & Ors. vs U.O.I. & Ors.(decided on 19 October, 2012), it became apparent that even after lapse of 15 years since Vishaka’s judgement, such a legislation is to see the light of the day as the main grievance of the petitioners was that since the mechanism for implementation of the Vishaka guidelines against sexual harassment has not been effectively established by, the concerned women continued to be victims of sexual harassment at workplaces, prompting Hon’ble Supreme Court to express its displeasure on the delay in enacting the law and to declare that “the implementation of the guidelines in Vishaka has to be not only in form but substance and spirit so as to make available safe and secure environment to women at the workplace in every aspect and thereby enabling the working women to work with dignity, decency and due respect.”

In Vishaka’s case, the court had directed that the government and public sector entities should amend their conduct and disciplinary rules/regulations to provide for specific prohibition against sexual harassment and penalties. Hence they should set up appropriate complaint mechanism for time-bound redressal of the complaints regarding sexual harassment in the form of a complaints committee, to be headed by a woman, with at least half ofthe members as women and an NGO or other body acquainted with the issue of sexual harassment on board.

The complaints committee was to make annual report to the concerned government department of the complaints received and action taken thereon and the employer/person-in-charge was also to report to the concerned government department on compliance with the guidelines including reports of the complaints committee.

For private sector, suitable amendments were to be made in the standing orders under the Industrial Employment (Standing Orders) Act, 1946.

In Medha Kotwal Lele, the court found that though some states have amended the disciplinary and conduct rules, they have not amended the Industrial Employment (Standing Orders) Rules! It also found that some states have even not set up complaints committee at required levels and in adequate numbers and that some states had accorded findings of the complaints committee status of a mere preliminary investigation and others had not confirmed that the complaints committee has been formed in accordance with Vishaka guidelines.

Taking note of the lackadaisical approach and to make the implementation mechanism effective, the court has directed in Medha Kotwal Lele case as under:

• The chief secretary of each state to appoint a state level officer, i.e., either the secretary of the Woman and Child Welfare Department or any other suitable officer who is in charge and concerned with the welfare of women and children in each state to act as ‘Nodal Agent’ to collect the details on the formation of the complaints committee, complaints received and acted upon and also to give suitable directions to all concerned.
• For factories, shops and commercial establishments, court has designated the Labour Commissioner of each state as nodal agency for collecting the details regarding the formation of complaints committee and complaints.
• States and UTs to make appropriateamendments in CSS Rules, Industrial Employment (Standing Orders) Rules and set up adequate number of complaints committees so as to ensure that they function at taluka level, district level and state level.
• Reinforcing its earlier order (Medha Kotwal, 2004) that the complaints committee be considered an inquiry committee, the court went a step further by directing provisions that be made in the rules for severe disciplinary action for harassment and intimidation of witnesses and the complainants.
• Observing that “there is still no proper mechanism in place to address the complaints of sexual harassment of the women lawyers in Bar Associations, lady doctors and nurses in the medical clinics and nursing homes, women architects working in the offices of the engineers and architects”, Vishaka guidelines made applicable on professional bodies like Bar Councils, Medical Council, Institute of Chartered Accountants, Institute of Company Secretaries and other statutory Institutes.