INTRODUCTION
Sexual harassment at workplace is a universal problem in the world whether it be a developed nation or a developing nation like our country India or an underdeveloped nation, atrocities and cruelties against women is common everywhere. Today’s world is accustomed to the term Sexual harassment. Sexual Harassment can be identified as a behavior. It can in general terms be defined as an unwelcome behavior of sexual nature. Sexual harassment at workplace is a universal problem in the world whether it be a developed nation or a developing nation or an underdeveloped nation, atrocities and cruelties against women is common everywhere. It is a problem giving negative effect on both men and women. It is seen to be happening more with women gender as they are considered to be the most vulnerable section of the society these days. Sexual harassment therefore is a serious problem in the workplace and it has become one of those issues that receive a lot of negative attention.
What is Sexual Harassment?
Sexual harassment has been identified as a term which is difficult to define as it involves a range of behaviors. Efforts have been made at both national and international levels to define this term effectively. Often, the term is subjected to different interpretations. Some believe that it is better not to mingle with female colleagues so that one does not get embroiled in a sexual harassment complaint. The reality of sexual harassment incidents at the workplace is that there is more to worry about under-reporting, than people misusing the law.
Legal Overview about Sexual Harassment in India:
In 1997, in the landmark judgment of Vishaka and others v. State of Rajasthan (1997) 6 SCC 241, AIR 1997 SC 3011, the Supreme Court of India defined sexual harassment at the workplace, pronounced preventive, prohibitory and redress measures, and gave directives towards a legislative mandate to the guidelines proposed.
Sexual Harassment includes many things:
1. Actual or attempted rape or sexual assault.
2. Unwanted deliberate touching, leaning over, cornering or pinching.
3. Unwanted sexual teasing, jokes, remarks or questions.
4. Whistling at someone.
5. Kissing sounds, howling and smacking lips.
6. Touching an employee’s clothing, hair or body.
7. Touching or rubbing oneself sexually around another person.
Indian Constitution On Sexual Harassment-
Sexual harassment clearly violates the fundamental rights of a women to Equality under Article 14 which is Equality before law and Article 15 which is Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth, her right to life and right to practice any profession and carry on any occupation, trade or business which is under Article 21 and her Right to safe environment free from sexual harassment under Article 19(1)(g).
IPC on Sexual Harassment-
In 2013, substantial changes were made in the way sexual harassment was viewed within the criminal justice system in India. The Criminal Law Amendment Act of 2013, which commenced on April 3, 2013, included Section 354A of the Indian Penal Code, 1860 that defined sexual harassment. The India Penal Code, 1860 has also defined the term sexual harassment and related offences and put forth punishments for the same:
Section 354A– Sexual harassment is: unwelcome physical contact and advances, including unwanted and explicit sexual overtures, a demand or request for sexual favors, showing someone sexual images (pornography) without their consent, and making unwelcome sexual remarks.
Punishment: Up to three years in prison, and a fine.
Section 354B– Forcing a woman to undress.
Punishment: From three to seven years in prison, and a fine.
Section 354C– Watching or capturing images of a woman without her consent (voyeurism).
Punishment: First conviction – one to three years in prison and a fine. More than one conviction–three to seven years in prison and a fine.
Section 354D- Following a woman and contacting her or trying to contact her despite her saying she does not want contact. Monitoring a woman using the internet or any other form of electronic communication (stalking).
Punishment: First conviction – up to three years in prison and a fine. More than one conviction–up to five years in prison and a fine.
The same definition is given in the law enacted specifically for Sexual Harassment i.e
Sexual Harassment of Women at Workplace (Prevention Prohibition and Redressal) Act 2013.
Pre- Vishaka Scenario-
Before the Vishaka guidelines came into picture, the women had to take matter of Sexual Harassment at Workplace through lodging a complaint under Sec 354 and 509 of IPC.
Sexual Harassment as we know has become a global problem which is a kind of violence against women. International community has recognized in their International treaties and documents, the protection from Sexual Harassment as a human rights of women. All the legal instruments dealing with this matter have been laid down to protect life and liberty and these instruments have been used as a means to curb and address this issue.
In India until the Vishaka’s judgment was given out, there was no law to govern this matter and the guidelines which came as an outcome of this case were derived from the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW). The Indian Constitution had grounded provisions in the form of fundamental rights.
Vishaka And Others V. State of Rajasthan-
In the case of Vishaka and Ors v. State of Rajasthan and Ors, the Hon’ble Supreme Court has laid down guidelines and norms to be observed to prevent sexual harassment of working women.
Preventive Steps-
All employers or persons in charge of work place whether in public or private sector should take appropriate steps to prevent sexual harassment. Without chauvinism to the generality of this obligation they should take the following measures:
a. Express prohibition of sexual harassment at the work place should be notified, published and circulated in appropriate ways.
b. The rules of government and public sector bodies relating to conduct and discipline should include rules prohibiting sexual harassment and provide for adequate and 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 should be provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at work places and no employee woman should have reasonable grounds to believe that she is disadvantaged in connection with her employment.
Criminal Proceedings-
Where such conduct amounts to an offence under the IPC or under any other law, the employer shall initiate appropriate action in accordance with law by making complaint with the appropriate authority. In particular, it should ensure that victims or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment.
Disciplinary Action-
Where such conduct amounts to misconduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules.
Complain Mechanism-
Whether or not such conduct constitutes an offence under law or a breach of the service rules, and appropriate complaint mechanism should be created in the employer’s organization for redress of the complaint made by the victim.
Such complaint mechanism should ensure time bound treatment of complaints.
Internal Complaints Committee-
The complaint mechanism should be adequate to provide a complaints committee, a special counselor or other support service, including the maintenance of confidentiality.
The complaints committee should be headed by a woman and not less than half of its member should be women. Further, to prevent the possibility of any undue pressure or influence from senior levels, such complaints committee should involve a third party, either NGO or other body who is familiar with the issue of sexual harassment.
The complaint committee must make an annual report to the government department concerned of the complaints and action taken by them.
The employers and person in charge will also report on the compliance with the aforesaid guidelines including on the reports of the complaints committee to the government department.
Worker’s Initiative-
Employees should be allowed to raise issues of sexual harassment at a workers’ meeting and in other suitable forum and it should be affirmatively discussed in employer-employee meetings.
Awareness-
Awareness of the rights of female employees in this regard should be created in particular by prominently notifying the guidelines (and appropriate legislation when enacted on the subject) in a suitable manner.
Third Party Harassment-
Where sexual harassment occurs as a result of an act or omission by any third party or outsider, the employer and person in charge will take all steps necessary and reasonable to assist the affected person in terms of support and preventive action.
The central/state governments are requested to consider adopting suitable measures including legislation to ensure that the guidelines laid down by this order are also observed by the employers in private sector.These guidelines will not prejudice any rights available under the protection of human rights act, 1993.
Post- Vishaka Scenario-
India did not have any legislation till the Bill for the Protection of Women from Sexual Harassment was moved in the Parliament in the year 2005. After a 10 long years gap in 2010, the Bill was in the Lok Sabha with slight changes in the old Bill. The new Bill defined “sexual harassment” and also provided for a redressal mechanism through “Internal Complaints Committee” in the workplace or “Local Complaints Committee” at the district level. Women who are employed as well as those who enter the workplace as clients, customers or apprentices besides the students and research scholars in colleges and universities and patients in hospitals are sought to be covered under the proposed legislation. However, domestic workers working at home are not covered. Additionally, there were problems regarding the action to be taken against false and malicious charges or complaints, subsequently to solve this issue the Parliamentary Standing Committee in June 2011, submitted recommendations to remove false and malicious charges. Then the newer version of the Bill retained the action against false and malicious charges by ICC or Local Committee against the Complaint under Section 14.
According to Section 13 of the act there are two stages of enquiry, one is once the charges are found and proved the report of the same must be sent to the DC (Disciplinary Committee) and it will take action as per the service rules. This is again a time consuming process, where the victim has to produce the evidences again and go through cross examination, which is a kind of mental torture to the victim. The case may be different with a private sector regarding the second process of enquiry, these stages or traditions are acting against the value Constitution of ICC.
In relation to this, the Apex Court in case of Medha Kotwal Lele vs. Union of India and others, (2013) 1 SCC 297 has clearly laid down that the report of the committee is final and the disciplinary committee is vested with the power to give punishment and to conduct second enquiry.
Till the new Act of 2013, came into effect; the problem of sexual harassment was governed by the guidelines laid down by the Vishaka’s case in the year 1997. The main objective of the Act was to implement the guidelines and to ensure an access a safe workplace by woman.
The Sexual Harassment At Workplace (Prevention, Prohibition And Redressal) Act, 2013-
The Sexual Harassment Act (Hereby called as an ‘Act’) was finally enacted in the year 2013 for the prevention of sexual harassment against women at workplace in the whole of India. The main objective of the act was protection of Women, prevention and redressal of sexual harassment complaints. Section 2(N)of the act defines Sexual harassment as any one or more of the following unwelcome acts or behavior (whether directly or by implication) namely:
1. Physical contact and advances; or
2. A demand or request for sexual favors; or
3. Making sexually colored remarks; or
4. Showing pornography; or
5. Any other unwelcome physical, verbal, or non-verbal conduct of sexual nature.
Conclusion
Sexual harassment is a serious problem in the workplace and it has become one that receives a lot of negative attention. However, India is a late entrant in formalizing sexual harassment at workplace as a penal offence punishable with imprisonment and penalty. The harsh reality of sexual harassment cases at workplace is that there is more to worry about under-reporting than people misusing the law. With the advent of the present legislation, a paradigm shift can be noticed in the way employers are made liable for the breach of law by its employees. Until the enactment of this law, vicarious liability on sexual harassment at the workplace was non-existent. However, while the Government of India has been taking steps to monitor implementation of the 2013 Act in government offices, there is an absence of mechanism to check execution in the private sector. The damage that is happening as a result of state apathy is unpardonable and irreparable.
The Author is a practising Advocate and Legal Services Advocate (DLSA), Shahdara.