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LATEST NEWS UPDATES | Verma panel did a rethink on Vishakha guidelines -Manoj Mitta

Verma panel did a rethink on Vishakha guidelines -Manoj Mitta

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published Published on Dec 1, 2013   modified Modified on Dec 1, 2013
-The Times of India


The outrage over the Delhi gang rape spurred the enactment of two laws relating to gender reforms. The one widening the definition of rape and enhancing penalties for a range of sexual crimes was largely based on the recommendations of the Justice J S Verma Committee, which had been appointed post Nirbhaya. But when it came to the other law, which deals with sexual harassment at the workplace, the government ignored the proposals of the same panel. This was despite the fact that it was Verma who had, in his avatar as Chief Justice of India in 1997, authored the Vishakha guidelines, which served as the framework for the 2013 law on sexual harassment.

Adding to the irony was a major rethink that Verma and the other committee members had displayed on the Vishakha guidelines in a separate chapter in the report submitted in January. Though there has been an explosion of awareness about Vishakha guidelines in the wake of the Tarun Tejpal and Justice A K Ganguly scandals, what has gone unnoticed is that their author had since proposed amendments to make the sexual harassment regime more effective. The law based on Verma's original formulation was officially notified on April 23, which was just a day after his death.

Given the two recent high-profile instances of sexual harassment at the workplace, the changes proposed by the Verma Committee have proved to be prescient. For, it had a rethink on the very mechanism of the internal complaints committee (ICC), which is the heart of the Vishakha guidelines. Critiquing what was then a Bill pending in Parliament, the Verma Committee said that the provision entrusting the probe to ICC was "counterproductive to the ends sought to be met". The second thoughts about ICC were evidently because of the realization it might not work where the complaint was against an influential person within the organization. "It is our apprehension that the inhouse dealing of all grievances would dissuade women from filing complaints and may promote a culture of suppression of legitimate complaints in order to avoid the concerned establishment falling into disrepute," the Verma Committee said, foreseeing the conflict betrayed by the Supreme Court and Tehelka cases.

The alternative proposed by the Verma Committee was an external "employment tribunal" comprising two retired judges, two sociologists and a social activist. Such a tribunal, it said, would obviate the need for ICC or even the local complaints committee contemplated for the informal sector by the Bill (which is now an Act). Another reason for preferring the tribunal over ICC was the vesting of civil court powers in the body probing the sexual harassment complaint. Despite the token representation of outsiders in ICC, a lot of organizations might not have any legally trained person to cope with the responsibility that would come with the civil court powers of recording evidence, summoning people or calling for documents.

Reviewed definition of harassment

Equally significant was Justice Verma's review of even the definition he had provided for sexual harassment in the Vishakha guidelines. He was responding to the adoption of his own definition in the Bill incorporating a range of "unwelcome" acts at the workplace. He recognized the ambiguity of the examples cited in the definition: "sexually coloured remarks" , "physical contact and advances" and "showing pornography". The Verma Committee, therefore, proposed a caveat to the definition stressing the need to empathize with the vulnerability of the victim: "In determining whether the behavior or act complained of is unwelcome, one of the factors to be given due weight shall be the subjective perception of the complainant." The government did not however deem it fit to insert the proposed clarification aimed at making the law more sensitive to women.

Opposed red rag provision

Besides suggesting improvements on the Vishakha guidelines , the Verma Committee expressed concern about some of the problematic aspects of the Bill which had been introduced by the government on its own. The law passed by Parliament was, for instance, contrary to the Verma Committee's recommendation to delete what it called a "red rag provision". It was the clause penalizing a woman for filing a complaint that was found to be false or malicious. The Verma Committee cautioned that where the employer was opposed to the complaint, the evidence might be manipulated by him or at his behest to falsify the allegations of the aggrieved woman. Calling it a "completely abusive provision" intended to "nullify the objective of the law" , the Verma Committee suggested an alternative in which the tribunal proposed by it would be empowered to reprimand rather than penalize the complainant if she had been found to be in the wrong.

No option of conciliation

Another major reservation disregarded by the government related to the stipulation of conciliation as a first step. Suggesting deletion of this provision, the Verma Committee said that the complaint should not be allowed to be withdrawn "so as to ensure that all cases of sexual harassment are properly dealt with under the law of the land". It said that the option of conciliation would end up putting the aggrieved woman under pressure to give up legal remedies.

The extent of mismatch between the Verma Committee report and the law subsequently passed raises questions about the mechanism that has been created to handle sexual harassment. The law is yet to be brought into force pending the drafting of the rules. It remains to be seen whether the rules will address some of the far reaching points made by the Verma Committee.

The Times of India, 1 December, 2013, http://timesofindia.indiatimes.com/home/stoi/deep-focus/Verma-panel-did-a-rethink-on-Vishakha-guidelines/articleshow/26665863.cms


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