TCS Nashik case: What are the Vishaka guidelines? All you need to know about the workplace

TCS Nashik case: The cases of sexual and workplace harassment, and religious conversion that have emerged from Tata Consultancy Services’ (TCS’) Nashik campus have laid bare the faultlines of employee security and rights. While the terms ‘Vishaka guidelines’ and POSH are thrown around in abundance within companies, many employees might be hazy on the exact rights they have and can exercise.  

If you are an employee – or even an employer – it is pertinent that you know your rights and duties within the legal framework.

WHAT ARE THE VISHAKA GUIDELINES?

The Vishaka guidelines, named after a women’s rights group, are a set of guidelines that need to be used in India in case of sexual harassment. 

In the 1990s, Bhanwari Devi, a government employee in Rajasthan, worked to prevent child marriages as part of the Women Development Programme. She was brutally raped by landlords in the community who were angered by her efforts. Despite the severity of the crime, the Rajasthan High Court acquitted the accused, denying justice.

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This injustice prompted the said women's rights group Vishaka to file a public interest litigation in the Supreme Court to highlight the absence of effective domestic laws to address sexual harassment of women at workplaces.

In 1997, the Supreme Court delivered a landmark judgment in the Vishaka vs State of Rajasthan case. It established the Vishaka guidelines, which outlined procedures for handling complaints of sexual harassment in workplaces. These guidelines were to be followed until specific legislation was enacted.

WHAT DO THE GUIDELINES SAY?

As per the Vishaka guidelines, it is the duty of the employer or the persons responsible in the workplace and other institutions to deter acts of sexual harassment and to provide procedures for the resolution, settlement or prosecution of acts by taking the necessary steps. 

The guidelines also lay the definition of sexual harassment. It refers to acts that are sexually determined, either directly or by implication, including:

• Physical contact and advances
• Demand or request for sexual favours
• Sexually coloured remarks
• Showing pornography
• Other unwelcome physical, verbal or non-verbal conduct of sexual nature 

The Vishaka guidelines have laid down the context to it also – where if the woman employee has reasons to believe that such acts could be humiliating, or may constitute health and safety problem, or if these are discriminatory – for instance if she has reasonable grounds to believe that her objection to such acts could put her in a disadvantage with her employment or promotion or create a hostile work environment.

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ROLE OF THE EMPLOYER

The employers must ensure that they should take appropriate steps to prevent sexual harassment without prejudice:

• Prohibition of sexual harassment should be expressed through notification, publication or should be circulated in other appropriate ways
• Government as well as public sector bodies’ rules and regulations should include prohibition of sexual harassment and appropriate penalties
• Private companies should also take steps to disperse and follow the standing orders
• Employers should provide appropriate work conditions, and no woman employee should believe she is disadvantaged in connection with her employment

PROCEEDINGS AND ACTION

The employer must initiate appropriate action according to the law, and ensure the victims or witnesses are not victimised or discriminated against. The complainants should have the option to seek transfer of the perpetrator or of themselves. 

Whether or not the complaint constitutes an offence under the law, it will be the duty of the employer to redress the complaint within the organisation. Such a mechanism will be time-bound.

The company should provide a complaints committee, a special counsellor or other support service. The Complaints Committee must be headed by a woman and not less than half of its members should be women, and should involve a third party, either NGO or other body that is familiar with the issue of sexual harassment. The committee must make an annual report to the government department concerned. 

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Employees should be allowed to raise issues of sexual harassment at workers’ meeting and other appropriate forums. 

Other legal provisions also include filing a criminal case under the Bharatiya Nyaya Sanhita. A civil case can also be filed for mental anguish, physical harassment, loss of income and employment caused by the sexual harassment.