INTRODUCTION
Sexual harassment is a kind of experience, forgetting it is difficult, and remembering it is even worse. It is a gross violation of women’s right to equality and dignity. Sexual harassment is faced in various areas including workplace, schools, and institutions whereas workplace is the sector where most of the women’s face harassment. According to the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013, sexual harassment includes any one or more of the following unwelcome acts or behaviour (whether directly or by implication) namely, physical contact and advances, demand or request for several favours, making sexually coloured remarks, showing pornography, and any other unwelcome physical, verbal, non-verbal conduct of sexual nature. Even in this modern era, independent women face harassment, injustice, or inequity at workplace. As per Section 19(1)(g) of the Constitution of India, every woman has the right to participate in public employment. In spite of the fact that the majority of the global population constitutes women, they face disadvantage in variety of positions because of gender biasness. They had suffered exploitation and violence from male-dominated societies. Sexual harassment at workplace is a form of gender-based violence against women which not only violates their dignity, self-respect, self-esteem but also violates their human and Constitutional rights.
For thirty years, a woman in Rajasthan, Bhanwari Devi, brings her memories of that dreaded day afresh every time she leaves for the High Court. Bhanwari Devi has now retired from her job of ‘Saathin’ three and a half years ago, and doing this very job brought catastrophe to her, she was raped for reporting child marriage happening in her village. As they say “Strong women stand up for themselves and stronger ones stand up for others”. Bhanwari Devi took a course on the Justice system and is still fighting the legal battle inspiring many others such as Vishakha Women’s Rehabilitation Group. They contested in the Supreme Court the inadequacy of laws that ensure the security of women at the workplace and then ‘The Vishaka Guidelines’ came into existence.
As a result of the petition filed by Vishaka and four other women organizations from Rajasthan and Delhi, these guidelines were issued. The Supreme Court of India issued a judgment in the Vishaka & Ors. vs. State of Rajasthan & Ors. (1997) case where the Vishaka guidelines were created. While hearing this matter, the top Court noted that “the incident reveals the hazards to which a working woman may be exposed and the depravity to which sexual harassment can degenerate; and the urgency for safeguards by an alternative mechanism in the absence of legislative measures.” The guidelines issued are:
.Strict laws should be made by the government to prohibit sexual
harassment against women in both public and private sectors.
.It is the duty of the employer or any other responsible person in
the workplace to provide security to every working women.
.It is the responsibility of an employer to file a complaint if any
conduct towards an employee is punishable under the Indian
Penal Code.
.The employer should ensure that every working employee in the
organization is exposed to a safe working environment.
Disciplinary action should be taken by the employer in case any
ill-treatment or sexual harassment of a woman employee is
found.
.A complaint redressal committee should be set up by the
organizations which should include at least 50% of women to
initiate comfortable communication.
.An employer should guide another employee who suffered from
sexual harassment as well as he should spread awareness related to the sexual harassment.
These guidelines were further replaced by the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013. Sexual Harassment at workplace produces an unsafe milieu for women which encroaches their Fundamental Rights as preserved under Article 14, 15 & 21 of the Indian Constitution which provides for equality in status and opportunity and personal liberty. Sexual harassment not only hampers the physical aspect of a female but also damages her emotional and mental growth.
Historical Background
Women in India have been a prey of sexual harassment, however, there was no term, for example, sexual harassment, in our legal frame work. Since the 1980s, this crime had become a serious matter of concern as it jeopardised the safety and security of a women in her work environment. There were many organisations working for women’s right which voiced in opposition to sexual harassment at workplace. Organisations like Forum Against Oppression of Women (Mumbai), Baailancho Saad (Goa), etc. came forward and protested against SHW in forms of demonstrations, sit-ins and later on went to file PIL to amend age-old rape laws.
There was not a specific criminal law on SHW at workplace. However, there were few protections provided by the IPC, 1860 under sections 294, 354 and 509 relating to obscene acts and songs, assault, criminal force and use of words and gestures outraging a woman’s modesty. But interpretation whether it is sexual harassment or not in such sections was left at the discretion of the police officer.
Not only talking about the specific criminal law, every citizen of India has Fundamental Rights guaranteed under the Constitution. In this scenario they are Article 14, 15 and 21, if violated, aggrieved can directly move to the Supreme Court u/ Art. 32.
It was in 1990s, the atrocious gang rape of a social worker – Bhanwari Devi made hue and cry in the society. Bhanwari Devi worked with Rajasthan government and helped in Women’s Development Programme by campaigning against the social ills such as child marriage, female foeticide, infanticide, hygiene and dowry. It was on 22nd September, 1992 when she was gangraped by men of Gujjar community who were belonged to the dominant caste group of the village. The ‘patriarchs’ raped her and attacked her husband both of who belonged to low caste because they were agitated by her attempting to the put a stop to the marriage of a 9-months old baby which took place a few months earlier. “While Devi made her rape public, she was laid blame of lying. Even the police mocked her and did not take up the case seriously. The medical test was done 52 hours later and her bruises and scratches were not recorded neither her physical pain was taken into account. Accused men were arrested a year after the crime was committed. However, over the years of trial and change of judges, in November 1995, the accused were acquitted of rape and instead found guilty of lesser offences and imprisoned for 9 months step(The judgement(Bhanwari Devi v. State of Rajasthan)was immensely resented by the citizens of this nation and globally. It is said that the judgement was politically driven and did not follow the ideologies of natural justice.
The case was then backed by a Jaipur based NGO named Vishakha who filed a PIL in the Supreme Court of India demanding the workspaces necessarily be made safe for women and employer shall protect women employee at every step(Vishakha v. State of Rajasthan, (1997) 7 S.C.C. 323 (India)).
Finally, in 1997, the Supreme Court defined “sexual harassment” and held that a woman has a fundamental right to work in an atmosphere free from “sexual harassment”. It also laid down norms which made the head of the institution, whether public or private, responsible for scrutinising “sexual harassment” at workspace.
Based on this revolutionary judgement, 16 years later, the “SHW at Workplace (Prevention, Prohibition and Redressal) Act, 2013” was sanctioned by the MWCD.
Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 (POSH Act)
In 2013, the government enacted this Act “to provide protection against sexual harassment of women at workplace and for the prevention and redressal of complaints of sexual harassment and for matters connected therewith or incidental thereto.” This Act ensures that the workplaces are free from sexual harassment and provides safe as well as secure environment for women. As per Section 3 (1) of the POSH Act, “No woman shall be subjected to sexual harassment at any workplace.” Moreover, Section 19 (a) illustrates that Every employer should “provide a safe working environment at the workplace which shall include safety from the persons coming into contact at the workplace.” Some of the important provisions of the POSH Act are illustrated as follows:
*Internal Complaints Committee: As per Section 4 of the Act, every employer should constitute a Committee for attending complaints from the employers. The members involved in this committee include, Presiding Officer (women), two members among the employees (having social work experience or legal knowledge), and an external member (from NGOs or associations having experience in sexual harassment issues). At least three members of the Internal Complaints Committee should be female. They have maximum term of three years.
*Local Committee: This Act ensures that every District Officer should establish a Local Complaints Committee to deal with sexual harassment cases. This Committee constitute of a woman chairperson (women’s rights activist and an eminent social worker), two NGO members (one with knowledge about sexual harassment issues and another one of the Scheduled Caste), and a local woman (working in talukas, wards, municipalities, blocks, and tehsils within the district).
*Procedure of complaint: Section 9 of the POSH Act provides detailed information about how to file a complaint either with Internal Committee or Local Committee against sexual harassment. Aggrieved woman may file a complaint within three months of the incident date.
*Conciliation: A complaint between the parties can be resolved by the Local committee or Internal Committee at the aggrieved woman’s request under Section 10 of this Act.
*Compensation: Compensation is paid to the aggrieved woman and Section 15 of this Act determined different factors on the basis of which compensation is given. The factors include, (i) Aggrieved working women suffered from pain, emotional distress, mental trauma, and suffering due to sexual harassment, (ii) medical expenses for physical or psychiatric treatment, (iii) loss in the career opportunity, (iv) financial status of the alleged perpetrator and (v) whether lump sum orinstalment payments are feasible.
*False or malicious complaints: Section 14 of the POSH Act determines that actions will be taken against the complainants who makes false or malicious complaints. Disciplinary actions are provided in the statute include warnings, attending counselling, written apologies, terminating employment, withholding of promotion and censure.
*Duties of the employer: POSH Act also highlights the duties of the employer in case any woman employee from the organization faces sexual harassment.
*Section 19 of the POSH Act illustrates various duties including, to provide a secure and safe environment, to aware women employees regarding the measures or steps to take for filing a complaint, to treat sexual harassment as a misconduct according to the service rules, to provide necessary requirements of Internal Committee or Local Committee, and various others.
In addition to this, Indian Penal Code, 1860, also highlights certain provisions against the offence of sexual harassment at workplace
Indian Penal Code, 1860 and sexual harassment at workplace
According to the Indian Penal Code, any conduct of sexual harassment is an offence and can be penalized. It was brought within the ambit of Section 354 which illustrates that any act outraging the woman’s modesty is a crime. After the Criminal Amendment Act, 2013, a dedicated section was inserted in the IPC for making sexual harassment an offence. Sections addressing sexual harassment as an offence are listed as follows:
Section 294: Any act of obscenity in a public place or singing, uttering, or reciting obscene songs in or near any public place resulting in annoyance to the public is punishable either with imprisonment for a term which may extend to three months or a fine or both.
Section 354: This Section of IPC ensures punishment to anyone who assaults or uses any criminal force against a woman with the intent to outrage her modesty.
.As per Section 354A, Any man who commits an offence such as a demand or request for sexual favours, making sexually coloured remarks, unwelcome sexual overtures, and showing pornography against the will of a woman is punished with rigorous imprisonment that may extend to three years or one year in case of making sexually coloured remarks, or a fine or both. IPC punishes sexual harassment done anywhere including the workplace.
.According to Section 354B, any man who assaults or uses any criminal force on a woman with an intent to disrobe is punished with imprisonment that may extend to seven years, or a fine or both.
.Section 354C of the IPC ensures to punish any man involved in voyeurism with imprisonment for not less than one year which may extend to three years and a fine. Also, if a man is found guilty of the crime for more than one time then he will be punished with imprisonment for not less than three years which may extend to seven years and a fine. It states that “Any man who watches, or captures the image of a woman engaging in a private act in circumstances where she would usually have the expectation of not being observed either by the perpetrator or by any other person at the behest of the perpetrator or disseminates such image shall be punished…”
.Under Section 354D, stalking is a punishable offence and the one who commits this offence is punished with imprisonment that may extend to three years and a fine. In case, a man commits the same offence more than one time then the convict will be punished with imprisonment that may extend to five years and a fine. Stalking is defined under this Section of the IPC as “A man who (i) follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman; or (ii) monitors the use by a woman of the interest, email or any other form of electronic communication, commits the offence of stalking.” This Section has an exception if a person is stalking or monitoring the activities of a woman as part of a legal duty.
Section 509: Making any gesture, uttering any word, or exhibiting any object that intends to insult the modesty of a woman is punishable under this Section of the IPC. Punishment for violation of this Section is either imprisonment which may extend to one year or a fine or both. It states that “Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be 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.”
Conclusion
Women share common space with men in the workplace, despite this, women face gender-based violence. Nowadays, in most of the organizations, the women are outnumbered by men but they are judged on the grounds of all other factors rather than the quality and quantity of work they deliver. Sexual harassment is one such violence which is faced by working women. Although, the government introduced the POSH Act but there is lack of expert committees to handle such cases. In a recent judgment, Aureliano Fernandes vs. State of Goa and others, the Supreme Court directed the Centre and State government to verify whether panels have been constituted in all the departments and ministries to probe sexual harassment allegations at workplace. The committees can only work if a women come forward against the wrongdoers and files a complaint. If they do not file a complaint then even an expert committee cannot do anything.
“Sexual harassment” at workspace is a global issue. It is deep rooted within the Indian society. It needs to be eradicated as it acts like a disease. Government needs to make sure that a protected environment is provided to both women and men. An individual spends around 1/3rd of their day working at their jobs, they need to be assured by their employer of an atmosphere unhampered by sexual harassment. Government shall make the ‘constitution of IC’ mandatory in every organisation with at least one-member fitting from legal background or profession. Government should not only make changes in the legislation but also monitor how this law is being implemented at the primary level. It is time that government takes stern steps to, if not curb, condense the figure of cases of “sexual harassment” at workplace and provide meaning to the term ‘gender equality’.
