Sexual Harassment in the Workplace:
The Vishakha Guidelines, Implementation and After
The gang rape of Bhanwari Devi, in 1992, a saathin (volunteer) for a government initiative to stop child marriages in Rajasthan, was the immediate context of a Public Interest Litigation (PIL) filed by a group of social workers and NGOs. The PIL was filed by several NGOs, led by an NGO called Vishakha and social rights activists. They argued that there was a need for legal intervention to ensure the constitutional rights of women to work in a violence-free environment. The Vishakha Judgment issued by the Supreme Court of India in 1997 in response to the PIL, formulated a writ mandamus to all public and private sector institutions directing them to institute in-house complaints mechanisms to tackle sexual harassment at the workplace.
Prior to the guidelines, statutes that defined violence against women under criminal law (governed by the Indian Penal Code (IPC)) were used in civil proceedings as well.The semantic category of sexual harassment does not exist in the Indian Penal Code, which governs criminal proceedings. The IPC defines a series of offences that it terms as 'outraging the modesty of a woman.' As is evident, the category of 'outraging the modesty,' as defined in these various statutes, covers a range of violence against women. Section 509 comes closest to defining the degree of violence now termed as sexual harassment in the Vishakha guidelines. The draft bill that would make the Vishakha guidelines into a legal statute has to be seen in tandem with the other draft bill which seeks to do away with the antiquated category of modesty and replace the various provisions of the IPC with a consolidated 'Sexual Assault Bill.' The Vishakha judgment then for the first time provides a semantic category of sexual harassment for civil proceedings. The semantic category of sexual harassment was crucial to taking violence out of a moralistic framework. This change, would, ideally, preclude a woman's modesty being interrogated while the validity of her complaint was being assessed. The guidelines seek to strengthen the process of committee formation within the institution and enhance the civil nature of proceedings by defining sexual harassment as a violation of human rights rather than a criminal offence. However, currently cases of grievous sexual assault, like rape in the workplace, are still adjudicated as criminal offences under the antiquated category of 'modesty,' under the IPC.
Interestingly, the guidelines themselves are silent on what mode of inquiry the committee should follow and how these are to be constituted. The Vishakha guidelines only stated that a specific committee against sexual harassment was mandatory for every institution. The task of instituting the committee was devolved to the employer and it was stated that the committee was required to have more than 50 per cent women members and that it should be headed by a woman. Post the guidelines, a number of institutions tried to democratise the functioning of the committees by having members from various segments represented in them. There was also considerable debate on whether members should be nominated or elected. It must be clarified at the outset that, currently, a civil statute does not back the guidelines on sexual harassment in the workplace. A draft of the proposed bill has been in circulation for sometime now but is yet to be tabled in Parliament. The bill envisages a two-tier system of internal complaints committees and a local complaints committee. The draft bill works only through the process of nomination and the directives for the constitution of the Internal Complaints Committee does not clearly state that all segments of the workplace are to be represented in it. The draft bill proposes an alternative Local Complaints Committee, constituted by a District Officer, who can be the District Magistrate or Additional District Magistrate or the Collector or Deputy collector, at the block level, who is delegated the task of nominating members for the Local Complaints Committee to which registered unions find representation.
In 1997 women's groups and activists welcomed the judgment because it institutionalised a separate mechanism for tackling cases of sexual harassment. It also redefined the parameters of what constituted sexual harassment, so that it could be removed from the ambit of graver sexual offences, which merited criminal investigation. In India, civil proceedings work with evidentiary mechanisms that are less stringent than those of criminal proceedings. One of the primary reasons for a shift in emphasis from criminal to civil law within the women's movement in India has been that criminal proceedings have proved to be heavily biased against women. It is now common knowledge that stressing the magnitude of the crime does not often help the victim in criminal proceedings. The burden of proof is on the prosecution and the stringency of evidentiary proceedings work against the victim. For women's groups, the inadequacy of the criminal procedure has become a staple rhetoric.
The first step in intiating criminal proceedings in India is the local police station, where a victim has to lodge a complaint called the First Information Report.(FIR).However because of cases of custodial rape and the dubious, often misogynist, role played by police officers in cases, there has been an increasing emphasis on replacing these mechanisms of the courts and police stations with civil bodies much like the committtees under Vishakha. Faced with criminal proceedings that are often sexist and demeaning there has been a demand for more discrete and less public modes of proceedings. For example, in civil proceedings ascertaining 'proof beyond reasonable doubt' is not required for penal action; only a 'strong probability' suffices. Women's rights activists also stressed how committees had to now focus on the impact of the harassment on the victim and not the intent of the accused.
Prior to the judgment, there was a precedent of committee formation within institutional frameworks. These committees were constituted first at the departmental level and then at the level of the highest appellate authority within the institution concerned and would look at any complaints that could arise in the workplace. If the committee failed to reach a decision or its decision was challenged, the case was subject to judicial review by the courts. When it came to issues of sexual harassment these committees were guided by statutes 294 and 354, of the IPC. The formation of such committees was, however, not mandatory and the mode of enquiry for the committee when constituted was that of criminal proceedings. The committees could, however, recommend only punitive actions regarding employment benefits and not, like the court, imprisonment. The Vishakha judgment altered the ad hoc nature of all purpose committees by institutionalising a specific standing committee for sexual harassment. Interestingly, noted feminist activists Uma Chakravarti and Tripta Wahi, had critiqued the functioning of committees in educational institutions like Delhi University, prior to the Vishakha guidelines. Two cases of sexual harassment were the subject of a position paper, 'Recent Gender Crimes in the University of Delhi: Two Case Studies' (1995), by these two scholars.
The first case, involving the sexual misconduct of the director of the Department of Adult and continuing Education and Extension 1994, saw the departmental committee failing to take any action. When external pressure was mounted on the university, the Executive Council of the University constituted an Apex Committee headed by retired Chief Justice. I.C. Wad. Though this committee found the accused guilty of sexually molesting two of his employees, the Executive Council of the University failed to terminate his services and supporters of the victims were forced to appeal to the High Court. The position paper goes on to discuss a similar case in Hindu College, Delhi University, where two male staff members sexually molested a widowed gardener of the college, and her two daughters. The college principal flagrantly bypassed the recommendations of the committee and the suspensions of the accused were revoked within a week. In analysing the reasons for this failure the paper goes on to say:
The answer to this vital question lies in the complex interlinkages between the political corruption of the authorities as well as sections of the trade unions, administrative structures and the service conditions governing the conduct of class four employees, class pressure to scuttle the issue...and the apathy and inefficacy of the 'democratic' and 'left' forces in the college to comprehend the intricacies of the issue and to struggle against corruption at the place of work.
Was there anything to suggest that the guidelines would change these dynamics of the workplace? It is my contention: that in critiquing the criminal justice system a careful consideration of the failure of the committee mechanism, prior to the guidelines, was not undertaken.
Post 1997, the absence of any legislative statute has meant that there is no clear understanding of how committees are to be constituted and carry out their inquiries. In many instances like the interrogation of witnesses, corroborative evidence and ascertaining the nature of 'harm,' committees have functioned like criminal courts. For example, a committee in St Stephen's college in Delhi University went to the extent of declaring that prima facie evidence of sexual harassment could not be established for an inquiry to proceed. And it did this based on quizzing not the victims but the witnesses of the harassment who were all students of the accused teacher. In this case the intent of the accused was ascertained based on the opinion of various students, rather than the impact of the comment on the victims. A different story unfolded itself in the case of a committee that was interrogating a charge of sexual harassment against the librarian of Ramjas College, Delhi University. The use of witnesses for corroborative purposes was limited to one each for the victim and the accused. The committee found itself divided on the veracity of the witness of the victim. Moreover, the deposition of the accused and his witness implicated the victim's charge as mala fide, by drawing attention to her service records, a charge that the committee then interrogated. The punitive action recommended by the committee was limited to a negative mention in the service records of the accused. However, this was insufficient and ineffective because the accused had already reached the highest post in his office.
While the guidelines have not laid down clear procedural mechanisms to be followed in cases, the fundamental problems in the guidelines lie deeper. I will now demonstrate how the form of the guidelines is in itself problematic and no amount of legislative delineation of procedural processes can mitigate the implications of these guidelines.
The vocabulary of the guidelines is unmistakably that of conciliation and resolution. The draft bill directs committees to settle the matter between the victim and the respondent through conciliation before initiating enquiry. Though it does clarify that this process has to be undertaken at the request of the aggrieved party, it cannot guarantee the circumstances under which the victim might be coerced into conciliation. Moreover, the draft bill clearly specifies that notwithstanding the Right to Information Act 2005, the contents of the complaint made under subsection (1) of section 7Ᾱincluding not only the identity of the aggrieved woman, respondent and witnesses, but also any information relating to conciliation and enquiry proceedings, recommendations of Committees and action taken by the employer cannot be communicated or made known to the public press and media in any manner. The rhetoric of privacy/confidentiality is a double-edged sword for victims. What checks and balances are present to see that the committee does not function arbitrarily?
What could be the fallout of what effectively makes sexual harassment a private affair? The 'withdrawal' of the state as a party in proceedings, like in criminal cases, has shifted the site of struggle back into the sphere of the private. The juridical role of the state has been devolved on intra institutional players who now arbitrate and resolve matters between two private parties rather than the state representing the interests of the victim against the accused. While there was much celebration of the guidelines, no one seemed to have commented on the implications of making sexual harassment an issue of self-governance. An example of this celebration of the Vishakha judgment can be found in an article entitled 'Sexual harassment' by Pratiksha Baxi. However it must be stated that the response by feminist scholars and women rights activists to Vishakha has been mixed. Most of these reservations have been about implementation, however, and not on the structure of the guidelines itself which is the argument of this paper.Though women were now in a position to file a petition in the High Court or the Supreme Court, the Court normally does not go into the disputed question of fact and is likely to give a direction to the employer to set up a committee.
Prior to the guidelines, for 'industry' as defined under the Industrial Disputes Act (IDA) 1947, a similar process of arbitration under the central/state government could be carried out under the Works Committee, Grievance Settlement Authority, Boards of Conciliation, Courts of Inquiry and the Labor Courts and Industrial Tribunals. The Act left out of its purview the managerial level of employees and is applicable only to the grievances of the 'workman.' A woman employee who fit in the category of 'workman' and most importantly could prove that her service benefits were affected by the harassment could appeal to this channel. The term 'workman' does draw our attention to the semantic politics of much of the law in India. Despite the presence of a large workforce of women in industry and government departments the fact that the term 'workman' applies to both women and men, does indicate a blindspot in most acts, specifically, relating to labour. A superior officer could use the IDA to adjudicate the wrongful termination or withholding of service benefits of the victim by analysing the Industrial Employment (Standing Orders) Act, 1946. The Industrial Employment (Standing Orders) Act, 1946 specifies the conditions of employment and other procedural details. In the case of M/s Saudi Arabian Airlines v/s Mrs. Shehnaz Modbhatkal, 1986–96, the victim's services were terminated by the accused, who was her superior, when she approached higher authorities with her complaint. In this case the victim approached the Labour Court, which took ten years in ascertaining the charge. It did so by interrogating the charges of misconduct brought by the company against the victim. The grounds for misconduct framed by the company were found to be wanting and the Labour Court finally granted its award for reinstatement of the victim. The charge of misconduct or wilful insubordination, however, indicates the skewed nature of the IDA can be heavily weighed against the victim.
The linchpin in ensuring the rights of the female employee in the workplace can be the union. However with the new guidelines sexual harassment is now to be arbitrated by independently constituted committees and is not within the purview of the Disputes Act or the Maharastra Recognition of Trade Unions and Prevention of Unfair Labor Practices Act. 1971, which had earlier allowed for collective representation of the victim by registered trade unions of the establishment. The nature of this representation/intervention was already circumscribed for the union earlier and the committee mechanism has indeed strengthened this process.
It must be clarified further that even before the advent of the guidelines; the IDA did not empower unions to raise a dispute against the authorities on issues of sexual harassment. The IDA only empowers unions to raise issues of employment benefits, termination or retrenchment. As a result prior to the guidelines, a case of sexual harassment allowed the union to intervene legally only if it could be shown to effect service conditions. In the case involving Saudi Arabian Airlines, it was the termination of the victim's services, as a fallout of her harassment by her superior officer, which became the entry point for the labour union to intervene as a party in the dispute. As mentioned earlier the guidelines clearly leave the unions out of committees. In that case the guidelines have in fact extended the power of the authority in issues of sexual harassment involving labour and authority. For example, section 12(4) of the draft bill clearly states that if the employer or District Officer is not in agreement with the recommendations of the committee, he may alter the conclusion or recommendation of the committee after consultation. Moreover the guidelines assume a more problematic aspect when dealing with employee-employee harassment. Here the nature of the committee has to be interrogated further. Considering the power invested in authority to adjudicate and ascertain the nature of sexual harassment, it is important to consider how unions would react when arbitration concerns a case involving members of the workforce. Excluded from the committee, the union can only be positioned in a reactive role and it is quite likely that the power of the authorities in taking punitive action against the accused might also be resented.
The impact of defining sexual harassment in contradistinction from other labour issues and constituting a separate arena for its adjudication, like in the committees, is going to have a long-term impact on women employees. Indicative of this bifurcation and its adverse impact on a victim of sexual harassment can be seen in a case of sexual harassment in Delhi University. A case of sexual harassment in Dayal Singh College of Delhi University became a site of much controversy within the teaching community when the accused, a male teacher, was found guilty of sexual harassment of a colleague by a committee that had not followed due process in its proceedings. The inquiry report of the committee was then used by the governing body of the college to recommend the termination of the services of the accused. Again the governing body failed to function in a democratic manner; the accused was not informed of the proceedings or given an opportunity to defend himself before the governing body. The teaching community and the teachers union found itself deeply divided between sympathy for the victim and defending the employment rights of the accused against the arbitrary functioning of the governing body. The focus of the meeting held by the Executive Committee of the Delhi University Teacher's Association held on 4 May 2006 became the functioning of the committees and the authoritarianism of the governing body of the college concerned. The debate that raged in the Executive Committee became one of ascertaining the legality of the proceedings of the committee and whether the penalty matched the misdemeanor. One primary aspect in the deliberations of the Executive Committee was the perceived threat to employment rights if governing bodies could summarily dismiss employees without following due process. While India remains a country where labour is still 'protected' by domestic law in the public sector, the threat of fast eroding labour rights is real. Here again the power imbued in authority to decide terms of both harassment and employment, forced unions into pitting one against the other. Rather than seeing this as an instance of the chauvinism of the unions present, one can see the spectre of the bifurcation between the gender and labour rights of two members of the same labour constituency. In arguing for the legitimacy of the committees the unions present had also tacitly relinquished the right to adjudicate the issue of sexual harassment to the committee and were left the role of ascertaining the scope of the punishment and its impact for the teaching community at large. Only one member present posed the more important question of evolving 'rules of conduct' for union members and making issues of gender a provenance of unions' politics.
The bifurcation between strategies of intervention guided by trade union politics and more autonomous forms of redress are indeed troubling. This happened when a case of sexual harassment was filed against the head of the Political Science Department. Though there was considerable discontent and a large number of students and teachers of the department as well as from other departments had been mobilised against the accused, the focus of the campaign became the proper functioning of the committee. In the face of a recalcitrant university the campaign did not consider boycotting work until its demand for suspension and eventual termination of the services of the accused were met. The campaign suffered from the trap of legal procedure and found itself waiting for legal corroboration of the charges against the accused. Even when that corroboration came, the University failed to take action and the accused went scot free. It is in this way that the committee mechanism threatens to make the issue of harassment the domain of the committee and the victim and not of other members of the workforce. The stand taken by certain feminists on the committee threatens to isolate the issue of sexual harassment further. Nivedita Menon writes:
Finally, my experience of serving on committees has shown that committees are expected by local supporters of the complainant to take into account internal political struggles, when one of the difficult tasks of a committee is precisely to extricate the issue of sexual harassment from other power configurations in the local context. It has had to be reiterated on several occasions that we cannot expect to use the committees against sexual harassment to work out our broader political agendas—combating caste discrimination say, or authoritarianism of institutional heads. It may be that the incident of sexual harassment in question is implicated in these relations, but often enough it is not. Feminists in committees may have to work carefully to unravel the different strands involved, because the insertion of sexual harassment cases within such broader agendas often works against feminist goals.
Menon attempts to wean away the issue of sexual harassment from local dynamics. This is precisely what happened in the Ramjas College case when the trade union repeatedly asked the committee, of which Menon was a member, to let them depose in favor of the victim in the case. Limiting deposition to one witness led to duress of the victim and her witness and a failure to take strict punitive action against the accused. The feminist project, according to Menon, is to de-link the incident of sexual harassment from the 'non-sexual' and the 'non-personal.' How helpful would it be to isolate the complaint from questions that have a larger resonance in the workplace? An understanding of sexual harassment in the workplace needs to further interrogate the essential sexual nature of harassment. Where does an experience of sexual harassment link up with other non-sexual aspects of the workplace like labour-authority relationships, issues of caste and resource allocation? The precise limitation of the committee is that it cannot take into cognisance, how non-sexual dynamics feed into the experience of sexual harassment. When the union of St Stephen's College, Delhi University raised the issue of discrimination in resource allocation in the college (in terms of the number of hostels for men graduates versus those for women), its women president and other female union members found themselves being subjected to a backlash which took the form of sexual harassment. A few union members filed a complaint in the committee when they found themselves on the receiving end of a flippant innuendo by a teacher in the classroom. When the complainants approached a prominent women's group for help and asked for a public condemnation, the group demanded further corroboration of the allegations that the union was making. While the individual complainants stressed the need to highlight the institutional basis that lay behind the event of harassment, the women's group, like the committee, was more interested in ascertaining whether the particular allegation should be categorised as sexual harassment or not.
Can there be a feminist jurisprudence and can the most feminist of committees escape the trap of legality? Being guided by a feminist intent does not preclude a failure to deliver justice. Obviously the problem lies deeper then, in the very structures of adjudication itself. The process of adjudication is premised on two prominent features, individualisation and the adjudication between competing truth claims. The fundamental issue facing any movement is how it positions itself vis-à-vis the domain of constitutionalism and the state. As soon as a movement pitches its battle on the terrain of legality, it finds itself subjected to a juridical rationality. Fighting on the terrain of 'rights,' runs the risk of producing juridical categories of the individual versus other individuals. Within the interpretative domain of the law the rights of the individual are thus always subject to challenge by other individual rights. A comprehensive understanding of the deep-rooted problems with legality cannot be reached without addressing how law achieves its transcendental nature. The public power of the law is not dependent on openly enforcing the right of the powerful in every context since that carries on in private life anyway. That is one reason why the most 'progressive' law can exist with its obverse—the crime it is meant to deter. The power of the law lies in assuming a neutral standpoint when that power is challenged. It is in its granting rights to both the victim and the accused that the battle is lost. The very visibility that law establishes in naming an offence, in this case sexual harassment, is an intervention that elides the links between harassment and work, labour and authority, the sexual and the non-sexual. In its ability to decide the horizon of vision, law asserts the power of the oppressor.
The feminist engagement with law in India has achieved a certain complexity. The enforcement of formal legal rights and law reform remain an important aspect of mobilisation. The demand for legal rights has also meant the adoption of a series of mobilisation strategies centered on legal awareness, consciousness raising and signature campaigns by certain NGOs. Several problems in these strategies persist. Often enough they are carried out in urban centers and appeal to an 'enlightened' educated constituency to intervene through 'social work' thus reinforcing patronising notions of the masses as not agents of change but in need of help. Such mobilisation sees the law as an important conduit of social change the challenge being posed by the lag in 'mentalities.' More perceptive voices in the feminist movement have however become increasingly sceptical of state-sanctioned rights. Some discuss the need for substantive equality rather than just formal equality. However the demand for substantive equality also finds itself circumscribed by advocating the need for 'political will' and generating more effective systems of governance. Law in its spirit remains good, it is its implementation that remains flawed. Others highlight the insidious nature of state power that legitimates patriarchal power. Here an interesting paradox emerges. Often enough this critique refers to the mentalities of individual judges or the interpretative biases of legal practice. This, however, still leaves intact the form of law as sacrosanct and locates the problem in the content given to legal practice.
There is a refreshing break from these paradigms in the work of Nivedita Menon, who demonstrates the limitations of an attempt of isolating a moment in which the subject 'woman' becomes available for legal redress. The bearer of abstract rights, the subject- woman, coded in law, can in fact violate other more legitimate claims or be a patriarchal construct rather the subject of a feminist politics. Her position that 'woman' is not an already existing subject, but that, '[T]he creation of "woman" as subject should be understood to be a goal of feminist politics, not its starting point,' is however contestable. As shown in this paper, it is in the isolation of gender as a category, vacated of its embeddedness in labour relations that is problematic both in the structure of the guidelines and in 'feminist' interventions in cases.
It is important to note that the feminist engagement with the law has achieved more nuanced treatment in discussions that see women's rights under threat from developments in 'civil' society especially the resurgence of conservative communitarian identities both ethnic and communal. The response to this majoritarianism is the identitarian politics of the minority governed by gender, caste, religion, tribe and sexual preference. In the feminist movement this has also meant scepticism with regard to any politics that attempt universalism rather than the multiplicity of identity. This has meant that, for example, Marxist notions of the state and law have also been discarded because they are premised on a vanguard politics of class leading to a 'withering away of the state.'
The nature of law is currently being reconstituted and is reflected in the guidelines. The Vishakha Judgment emerged from a confluence of the initiative of non-governmental organisations and what is called in modern parlance the 'ascent of the judges.' The judgment refers to the spirit of the Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA region, which was accepted by all the Chief Justices of the Asia and Pacific at Beijing in 1995. The 'independence of the judiciary' is premised on the notion that the court can act as an 'enlightened' agent of civil society to protect the interests of its citizens rather than the legislature or governments which are perceived as moribund, corrupt and defunct. A bench of three Supreme Court judges issued the guidelines as an extension of already existing constitutional rights as well as a culmination of international conventions of which India is a signatory. The PIL by Vishakha and other NGOS came in a long line of such litigation which was premised on the understanding that the citizen could use the judiciary to protect fundamental rights. The NGO has become an important conduit in reaffirming the legitimacy of ideas like good governance, legal safeguards, awareness and consciousness-raising to address issues of social disparity. The importance given to the NGO as a third party ombudsman in the proceedings in the committee is indicative of this. This role of the NGO also stems from the vocabulary of corporate governance where conflicts in the workplace are to be managed effectively rather than being allowed to challenge the very structures of the workplace. These developments are being supplemented by a dismantling of social security and trade union rights. Unless the women's movement can link up with political visions that see this role as an extension of state coercion it might ratify the new regimes of power.
The demarcation that has been effected between gender and laboor rights through the guidelines is not conducive for women employees. We have seen how, in the workplace, gender rights and broader issues affecting laboor have to be seen in tandem. Sexual harassment is intrinsically linked to the material conditions of the workplace and the power dynamics that govern labour-authority relations. The committee cannot substitute the more important task of making issues of women an important agenda of union mobilisation. Only then can unions overcome the spectre of legality and the bifurcation between gender and labour issues. Rather than celebrating the guidelines, an analysis of its link with labour law, as well as a struggle to make the union a party in arbitration could have been more productive. However, this could be done only with a more nuanced understanding by unions of the implications of legal redress and due process. Current labour law has circumscribed the role of the union to that of a mediator between the 'workman' and authorities. At the end of the day the dynamics of women's relationship to the workplace or the debilitating position in which most unions find themselves will not change until the narrow economism of the union is replaced by a politics of commitment to social change.
 In 1995, the Sessions Court, in Jaipur, acquitted the five accused, in the Bhanwari Devi case of the charges of Rape under Section 375 and 376 of the IPC. The accused were sentenced to six years and three months of simple imprisonment, respectively under Sections 147 and 323 of the Penal Code. This adverse judgment became the immediate context for the campaign and resultant PIL to ensure a violence free workplace for women.
 Vishakha and Others v. Union of India, AIR, 1997, SC 3011. A writ of mandamus is primarily a judicial remedy which is in the form of an order from a superior court to any government, subordinate court, or corporation or public authority to do or forbear from doing some specific act which that body is obliged under law to do or refrain from doing, as the case may be, and which is in the nature of public duty and in certain cases a statutory duty.
 See Section (2) of the Vishakha judgment for definition of Sexual Harassment. It has been laid down in the Vishakha judgment that it is the duty of the employer or other responsible persons in work places or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedure for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps required.
For this purpose, sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as :
- a) physical contact and advances;
- b) a demand or request for sexual favours;
- c) sexually coloured remarks;
- d) showing pornography;
- e) any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
 See Statutes 294, 354 and 509 of the Indian Penal Code (IPC). Section 294 of the IPC holds that : 'Whoever, to the annoyance of others, (a) does any obscene act in any public place, or (b) sings, recites and utters any obscene song, ballads or words, in or near any public space, shall be punished with imprisonment of either description for a term that may extend to three months, or with fine, or with both. This provision is included in Chapter 16 entitled, 'Of Offences Affecting Public Health, Safety, Convenience and Morals' and is cognisable, bailable and can be tried by any Magistrate. Section 354 IPC: 'Whoever assaults or uses criminal force on any woman, intending to outrage her modesty or knowing it likely that he will thereby outrage her modesty, shall be punished with imprisonment for a term which may extend to two years, or with fine, or with both. Section 509 (word, gesture or act intended to insult the modesty of a woman) is included in Chapter 22 entitled, 'Of Criminal Intimidation, Insult and Annoyance,' and is cognisable, bailable and can be tried by any magistrate. It holds: 'Whoever, intending to insult the modesty of a woman, utters any word, makes any sound or gesture, or exhibits any object, any sound or gesture is seen by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both. See, Indian Penal Code (1860), URL: http://www.netlawman.co.in/acts/indian-penal-code-1860.php, accessed 29 September 2007. The ad hoc sub-committee constituted by the National Commission for Women in 1993 has framed a draft Sexual Assault Bill, which proposes to replace various separate penal provisions with consolidated provisions dealing with 'sexual assault' and aggravated sexual assault.' The committee has accordingly recommended that sections 375, 376 (rape), 354, 377 and 509 of the Indian Penal Code be replaced by the provisions recommended in the Bill.
 In 2007, the Ministry of Women and Child Development, Government of India, circulated the Protection of Women against Sexual Harassment at Workplace Bill, for comments and suggestions. See the Protection of Women against Sexual Harassment at Workplace Bill, National Commission for Women, 2007, online: http://ncw.nic.in/sexualharassmentatworkplacebill2005.pdf, accessed 27 December 2007.
 Catherine Mackinnon made a similar case in the context of American law. Mackinnon believes that using civil mechanisms, like tort law, can at times be more effective in dealing with sexual offences against women. See, Catherine Mackinnon, Feminism Modified: Discourses on Life and Law, Harvard: Harvard University Press, 1987.
 See Flavia Agnes, 'Protecting women against violence: review of a decade of legislation 1980–89,' in Economic and Political Weekly , vol. 27, no. 17 (1992):19–33. Agnes surveys a number of laws that come in the ambit of criminal offences and suggests that stricter laws invest greater powers with the state and stricter punishment has led to fewer convictions.
 Uma Chakravarti and Tripta Wahi, 'Recent gender crimes in the University of Delhi: two case studies,' in Revolutionary Democracy, vol. 1, no. 2 (September 1995), online: http://www.revolutionarydemocracy.org, accessed 1 December, 2007.
 These details have been collected from correspondence between the committee and union members, made available to me by the latter, who were also the complainants in this case. For more on this case see paragraph 17 of this paper. Correspondence by Committee for the Prohibition/Punishment for Sexual Harassment, St. Stephen's College to Complainants, 22 February 2006. Correspondence by Complainants made to members of Committee for the Prohibition/Punishment for Sexual Harassment, St. Stephen's College, 21 March 2006.
 The proceedings of this committee were the subject of a pamphlet taken out by a section of teachers and class four employees of Ramjas College. Details of the committee proceedings are derived from this pamphlet. See, 'Ramjas College Enquiry Committee Report on Sexual Harassment: A Critique,' unpublished, n.d.
See Section 2 Clause (5) of IDA. The Industrial Disputes Act defines workman as the following:
'workman' means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person –
(i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or
(ii) who is employed in the police service or as an officer or other employee of a prison; or
(iii) who is employed mainly in a managerial or administrative capacity; or
(iv) who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.
See, 'The Industrial Disputes Act, 1947,' Labor and Industrial Laws, Delhi: Universal Law Publishing Co. Pvt. Ltd., 2007, pp. 476–585.
 See M/s Saudi Arabian Airlines v/s Mrs. Shehnaz Mudbhatkal, 1986 –-98. Saudi Arabian Airlines then appealed to the Bombay High Court to challenge the Labor Court award. Details of the case as well as the proceedings of the Labor Court are derived from the writ petition reviewed by the Bombay High Court, 1999, which upheld the decision of the Labor Court. See, M/s Saudi Arabian Airlines v/s Mrs. Shehnaz Mudbhatkal, in Women and the Law, ed. Christine Chorine, Mihir Desai and Colin Gonsalves, Bombay: Socio-Legal Information Centre, 1999, pp. 749–752.
 See 'The Maharashtra recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971,' in Labour and Industrial Laws, Delhi: Universal Law Publishing, 2007, pp. 678 –707.
 See Sujata Gothoskar on how unions in Bombay raised issues like maternity benefits, raising retirement age and sex discrimination, specifically the 'marriage clause' that allowed a pharmaceutical company to fire women after they got married. See Sujatha Gothoskar, 'Women in drug industry,'in Economic and Political Weekly, vol. 21, nos 25/26 (June 21–28, 1986):1100–01.
 See Maitreyi Krishnan and Ponni Arasu for a discussion on precisely this problem in the guidelines. They argue for strengthening 'worker's initiatives,' which might make the mechanism something that is 'owned' by all in the workplace rather than being a tool in the hands of the state and/or the employer. While this paper does highlight the problems of these guidelines in terms of its top down nature and the absence of any safeguards in the unorganised sector it does not suggest concrete ways out of this dilemma. See, Maitrei Krishnan and Ponni Arasu, 'Sexual Harassment Law,' in Seminar, vol. 583 (March 2008), online: http://www.india-seminar.com/cd8899/cd_frame8899.html, accessed 14 January 2009.
 For details see, Abantika Ghosh, 'Dean holding all positions,' in Times of India, 6 August 2007, online: http://timesofindia.indiatimes.com/articleshow/2257926.cms, accessed 27 December 2007.
 Nivedita Menon, Recovering Subversion: Feminist Politics Beyond the Law, Delhi: Permanent Black, 2004, pp. 152–53.
 See paragraph 8 for details of case.
 Menon, Recovering Subversion, p. 21.
 The theoretician Evgeny B. Pashukanis ruled out the possibility of a proletarian law in contrast to bourgeois law. Pashukanis cast doubts on the view that the form of law is essentially neutral and can be filled with a given class content and a change in those issuing the laws is all that is necessary for progress. He, however, tacitly accepted that in a phase of transition, the dictatorship of the proletariat would be embodied in a state and legal apparatuses. This was however not to suggest the omnipotence of state power for all time. See, Evgeny B. Pashukanis, Law and Marxism: A General Theory (1929), trans. Barbara Einhorn, ed. and introduced by Chris Arthur, London, Ink Links, 1978.
 Karl Klare shows how the National Labor Relations Act, 1935, was interpreted by American judges in such a way that it helped shape a 'modern administered and regulated system of labor relations' (336). It is this system of creating institutional channels and bureaucratic mechanisms that is termed 'judicial deradicalization' by Klare. This process effectively clamped down on union activity and rendered it manageable through the mechanisms of due process. See, K.E. Klare, 'Judicial Deradicalization of the Wagner Art and the Origin of Modern Legal Consciousness, 1937–1941,' Minnesota Law Review, vol. 62 (1978):265–339. For similar developments in Indian labour law see Dick Kooiman, Bombay Textile Labour : Managers, Trade Unionists and Officials 1918–1939, Bombay, Manohar Publications, 1989. Also see Prabhu P. Mohapatra, for a contemporary critique of 'so-called' progressive labour law. See, Prabhu P. Mohapatra, 'Labor Law and the Question of Labor Market Rigidity in India: 1970–2000,' paper presented at the 6th International Conference on Labour History, Delhi, 1–3 November 2006.