Sexual harassment is a common problem that affects all women in the world, regardless of profession, but the legal system is asleep and thus fails to provide them with security. It’s not all.
Women living in those countries having developed legal systems face other problems like being fired out of work, being ridiculed, societal pressure, promises of desired promotion, etc. that make them left with no words. Sexual harassment is about male dominance over women and it is used to remind women that they are weaker than men. In a society where violence against women is posed just to show the patriarchal values operating in it, these values of men pose the greatest challenge in curbing sexual harassment. Studies have shown that 1 out of every 3 working women is touched by sexual harassment. [1]
India’s first legislation specifically addressing the issue of workplace sexual harassment, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, was enacted by the Ministry of Women and Child Development, India in 2013. The government also subsequently notified the rules under the POSH Act titled the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 ("POSH Rules"). The year 2013 also witnessed the promulgation of the Criminal Law (Amendment) Act, 2013, which criminalises offences such as sexual harassment and stalking. [2]
The POSH Act has been enacted with the objective of preventing and protecting women against workplace sexual harassment and to ensure effective redressal of complaints of sexual harassment. The provision aims to provide every woman with a safe, secure and dignified working environment, irrespective of her age or employment status. The law to prevent sexual harassment at the workplace has been in force since 2013, but there are loopholes in it as well regarding clarity on various aspects of the statute, like what constitutes sexual harassment, obligations of an employer, remedies available to the victim, procedure of investigation, etc. [3]
Definition
Section 354A of the Indian Penal Code[4], added through the Criminal Law (Amendment) Act 2013, enlists the acts which constitute the offence of sexual harassment. They are:
Physical contact and advances involving unwelcome and explicit sexual overtures
A request or demand for sexual favours
Showing pornography against the will of a woman
Making sexually charged comments[5]
PREVENTIVE STEPS
All employers or people in charge of workplaces, whether in the public or private sector, should take appropriate steps to prevent sexual harassment. Without prejudice to the generality of the obligation, they should take the following steps[6]:
(a) The express prohibition of sexual harassment in the workplace, as defined above, should be notified, published, and circulated in appropriate ways.
(b) Government and public sector bodies' rules/regulations on conduct and discipline should include rules/regulations prohibiting sexual harassment and provide for appropriate penalties against the offender.
(c) As regards private employers, steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946.
(d) Appropriate work conditions in terms of work, leisure, health, and hygiene should be provided to further ensure that there is no hostile environment towards women at workplaces.
CRIMINAL PROCEEDINGS
Where such conduct amounts to a specific offence under the Indian Penal Code or under any other law, the employer shall initiate appropriate action in accordance with the law by making a complaint with an appropriate authority. In particular, it should ensure that victims or witnesses are not victimised or discriminated against while dealing with complaints of sexual harassment. The victims of sexual harassment should have the option to seek the transfer of the perpetrator or their own transfer.
CONSTITUTIONAL EXPANSION[7]
The Constitution of India ensures and guarantees every individual the right "to practise any profession, or to carry on any occupation, trade or business"[8].
Every woman has a constitutional right to take part in public employment and this right is denied in the process of sexual harassment, which forces her to keep away from such employment. Sexual harassment of a woman at the workplace exposes her to a big risk and danger, which puts her in an inequitable position vis-à-vis other employees, and this adversely affects her ability to realise her constitutionally guaranteed right under Article 19(1) (g).
Sexual harassment of women at the workplace is also a violation and infringement of the rights to life and personal liberty as mentioned in Article 21 that no person shall be deprived of his life or personal liberty. The right to livelihood is an integral and intrinsic part of the right to life. Sexual harassment is a violation of the right to livelihood.
For the meaningful enjoyment of life under Article 21 of the Constitution of India, every woman is entitled to the elimination of obstacles, problems, difficulties and discrimination based on gender.
Since the ‘Right to Work’ depends on the availability of a safe working environment and the right to life with dignity, the danger and risk imposed by sexual harassment need to be removed for these rights to have meaning and to be enforced. [9]
The preamble of the Constitution of India provides that it will secure to all its citizens, "equality of status and opportunity." Sexual harassment violates this basic objective of the framers of the constitution[10].
The idea of gender equality inscribed in our Constitution would be ineffective if a woman’s right to privacy is not regarded as her right to protection of life and liberty guaranteed by Article 21[11] of the Constitution of India. In view of the fact that sexual harassment of women at the workplace violates their sense of dignity and the right to earn a living with dignity, it is absolutely against their fundamental rights and their basic human rights.
Development of the Law on Sexual Harassment in India [12]
The Visakha Judgement, 1997 [13].
Bhanwari Devi, a dalit woman who was a social worker in Rajasthan, was brutally gang-raped while stopping a child marriage. [14]
This incident revealed the hazardous condition of women and the demand for legislation was raised. Lawyers and women's rights activists filed a PIL in the Supreme Court under the banner of Vishaka.The Supreme Court, for the first time, acknowledged the glaring legislative inadequacy and acknowledged workplace sexual harassment as a human rights violation. In framing the Vishaka Guidelines, the Supreme Court placed reliance on the Convention on the Elimination of All Forms of Discrimination against Women, adopted by the General Assembly of the United Nations in 1979, which India has both signed and ratified.
As per the Vishaka Judgment, the Vishaka Guidelines issued under Article 32 of the Constitution, until such time a legislative framework on the subject has been drawn-up and enacted, would have the effect of law and would have to be mandatorily followed by organizations, both in the private and government sector.
As per the Vishaka judgment, "sexual harassment" includes such unwelcome sexually determined behaviour (whether directly or by implication) as[15]:
a) Body contact and advances
b) A request or demand for sexual favours
c) Sexually charged comments
d) Displaying pornography
e) Any other unwanted sexual physical, verbal, or nonverbal conduct.
Where any of these acts are committed in circumstances under which the victim of such conduct has a reasonable apprehension that such conduct is in relation to the victim’s employment or work (whether she is drawing a salary or honorarium or voluntary service, whether in government, public or private enterprise), such conduct can be humiliating and may constitute a health and safety problem. It amounts to sexual harassment in the workplace.
It is discriminatory, for instance, when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work (including recruiting and promotion), or when it creates a hostile working environment.
Adverse consequences might result if the victim does not consent to the conduct in question or raises any objection thereto. [16]
VISHAKA DEVELOPMENTS AFTER
The first case before the Supreme Court after Vishaka in this respect was the case of Apparel Export Promotion Council v. A.K. Chopra. [17]
In this case, the Supreme Court reiterated the law laid down in the Vishaka Judgment and upheld the dismissal of a superior officer of the Delhi-based Apparel Export Promotion Council who was found guilty of sexually harassing a subordinate female employee at the workplace.
In this judgment, the Supreme Court enlarged the definition of sexual harassment by ruling that physical contact was not essential for it to amount to an act of sexual harassment. [18]
The apex court in its judgement in Medha Kotwal Lele & Ors. v. Union of India & Ors.[19] took cognizance and undertook monitoring of implementation of the Vishaka Guidelines across the country by directing State Governments to file affidavits emphasising the steps taken by them to implement the Vishaka Guidelines.
Not being satisfied, it directed states to put in place sufficient mechanisms to ensure effective implementation of the Vishaka Guidelines. [20]
Finally, the Supreme Court stated that in the event of non-compliance or non-adherence to the Guidelines, aggrieved parties could approach the respective High Courts.
The apex court also directed that the complaints committee as envisaged in the Vishaka judgement will be deemed to be an inquiry authority for the purposes of the Central Civil Rules, 1964 and the report of the complaints committee will be deemed to be an inquiry report under those rules.
CONCLUSION
India is a developing nation, and the number of working women is increasing day by day. To protect women’s human rights, the recognition of the right to protection against sexual harassment is must-needed legislation.
It is required because the dream of providing women with independence, the right to work with dignity, and equal opportunity cannot be realised without it.Sexual harassment in the workplace is a social challenge that needs to be addressed.
It is critical to raise employer and employee awareness about the presence of sexual harassment in the workplace, preventive measures, and the legal framework for preventing and addressing sexual harassment.
Dissemination and awareness-raising activities should be regularly conducted and evaluated in order to improve best practise on how to address sexual harassment in the workplace and also to forewarn and inform potential victims of such forms of sexual harassment to enable them to avoid them.
Enhancing training courses on sexual harassment and providing documentation or a handbook on the prevention of sexual harassment at the workplace can help in combating it.
"While a murder destroys the physical frame of the victim, sexual harassment degrades and defiles the soul of a helpless woman."
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[1] Sexual-Harassment-at-Workplace, available at: http://www.legalservicesindia.com/article/716/ (last visited on November 6,2021)
[2] sexual-harassment-a-legal-approach-to-its-prohibition-and-redressal, available at: https://lawbhoomi.com/ (last visited on November 4,2021)
[3] Ibid.
[4] Indian Penal Code,1860, s 354A
[5] sexual-harassment-at-workplace-the-situation-so-far, available at: https://lawbhoomi.com/ (last visited on November 5,2021)
[6] Supra.
[7]sexual-harassment-at-workplace-judicial-interpretation, available at: https://lawbhoomi.com/ (last visited on November 8,2021)
[8] The constitution of India, art 19(1)(g)
[9] Supra note 20 at 23
[10] The constitution of India
[11] Ibid.
[12] Supra note 15 at 21.
[13] AIR1997 SC 3011
[14] Law Relating to Sexual Harassment at the Workplace, INDIRA JAISING (2014)
[15] Id. at 17
[16] Supra note 26 at 24.
[17] AIR 1999 SC 625
[18] sexual-harassment-at-workplace-judicial-interpretation, available at: https://lawbhoomi.com/ (last visited on November 8,2021)
[19] (2013) 1 SCC 297
[20] Id. At 31
[21]sexual-harassment-of working women in India, available at: http://www.slideshare.net/krishcyb/ (last visited on November 9,2021)
This article is written by Riya of Chanderprabhu Jain college of higher studies and school of law.
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