Explained: Sexual harassment law in India

Reading time: 7-8 minutes.

How is sexual harassment relevant in context of workplaces?

The first thing we should know is that harassment can mean different things in different contexts. One can consider unprofessional or rude behaviour as harassment, but rude behaviour is not necessarily unlawful sexual harassment. A safe workplace is a legal right of every individual.

Any act of the sexual harassment to a woman at workplace is not only the violation of her constitutional rights but as well as the violation of her human rights. Sexual harassment, like sex discrimination violates the women’s rights. Day by day cases of sexual harassment are increasing in the corporate world. Sexual harassment is faced by both men and women.

The person who does this can be of the same or the opposite sex and may be a supervisor or the non-employee or the owner of the company. This does not have to be only of a sexual nature; indeed, sexual harassment includes unwelcome and offensive comments about a gender, simple teasing, offhand comments, or isolated incidents that are not very serious and not prohibited by the law prima facie.

When the sexual harassment is so frequent or serve that it creates a hostile or offensive work environment or when it results in adverse employment, such as the victim being fired or demoted that is illegal. Sexual harassment is adjudicated as an issue of employment law. Sexual harassment is less violent than the other forms of sexual violence like rape. Sexual harassment is often socially acceptable in our Indian society.

A normal reaction by the victim to the offender’s acts is feeling depressed or angry. In the absence of the penal and civil law in India that could provide adequately and specific protection to women from sexual harassment in the work places, in the year of 1997, the Supreme court of India in the case of the Vishaka v. State of Rajasthan, passed a landmark judgment, lying down the guidelines to be followed by the establishments in dealing with complaints about sexual harassment.

What exactly is Sexual Harassment?

Sexual harassment includes request for sexual favours, sexual advances, and other physical or verbal harassment of a sexual nature in learning environment or in the work place. In India the law, however, penalizes and recognizes sexual harassment only against the women.

The dictionary Merriam Webster defines sexual harassment as “unwelcome and uninvited verbal or physical behaviour of a sexual nature by a person, especially in authority towards the subordinate (such as employee or student)” the word “unwelcome” says that, such conduct has not been solicited or initiated by the employee.

Sexual harassment occurs only when one person has power over another person. It can also occur among peers. Sexual harassment occurs in the learning environment or the work place, like school, university, college, offices etc. In any circumstance it should not be tolerated and should be reported at the first instance so action can be taken immediately against the perpetrator.

 The sexually harassing act can be of two forms:

Quid Pro Quo (Literally ‘this for that’)

  • Implied or explicit promise of preferential/detrimental treatment in employment
  • Implied or express threat about a woman’s present or future employment status

Hostile Work Environment

  • Humiliating treatment likely to affect a woman’s health or safety
  • Creating a hostile, intimidating or an offensive work environment

Have any steps been taken by the Supreme Court to prevent it?

The laws of India have strived to provide for the protection of women against sexual harassment. If any person violates the law, there are civil and criminal remedies. In the case of Vishaka v. State of Rajasthan, guidelines have been directed in relation to such offences. These guidelines provided protection to the women when there did not exist any specific legislation against the sexual harassment.

What developments have been made by the legislature to save women from sexual harassment?

Sexual harassment at the work place is widespread. All around the world women have faced instances of sexual harassment, thus calling for a strong law to curb these acts in India.

Before the introduction of the PoSH LAW, except for the Indian penal code, 1860 there was no statutory remedy that directly addressed sexual harassment workplace.

  • Section 354 (Outraging the modesty of a women)
  • Section 509 (Insulting the modesty of a women)
  • The victims who were sexually harassed at the workplace should go to police and file a suit.

In the leading judgment of Rupan Deol Bajaj v. K.P.S. Gill (1995) which is related to IPC,1860 in which there is an elaboration of sexual harassment at whole. In this case there was an IAS officer who was a victim of the sexual harassment by the superior officer.

There was a lack of proper provision for the same and it fell under the section 353 and 509 which was rejected by the High Court. Because of this case a need was felt for a proper provision to be made for the sexual harassment at work place in the Indian Penal Code, 1860.

The International Conventions to protect violence against Women had been in place for a long time. In the case of Vishaka v. State of Rajasthan the Guidelines were drawn in the following ways:

By adopting the principles laid down in the following Conventions:

  • Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)

India is also a party to this convention and hastaken up aspects of equality of women in the workplace, unwelcome sexually-determined behaviour and gender-specific violence and it  adopted them in the PoSH Act.

  • International Labour Convention on Discrimination (Employment and Occupation)

On 3 June 1960 India ratified to this convention. By this convention, India has to prohibit and prevent any gender-based discrimination in the workplace.

12 Guidelines given by the Supreme Court

  1. Duty of employer:

It is the duty of the employer or any other responsible person in work place or other institution to deter or prevent the commission of acts of sexual harassment from taking place.

  • Definition of sexual harassment:

Sexual harassment includes unwelcome, sexually determined behaviour such as:

  1. Physical contact and advances
  2. A demand or request for sexual favours
  3. Sexually coloured remarks
  4. Showing pornography
  • Preventive steps:

All employers, whether of the private or public sector, should take action to stop the sexual harassment by any person in their office spaces or even outside.

  • Criminal proceedings:

Under the Indian Penal Code or under any other law, when such conduct amounts to a specific offence then the employer has to take serious action in accordance with the law by making a complaint against the offender.

  • 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.

  •  Complaint Mechanism:

Whether or not such conduct constitutes an offence under law or a breach of the service rules, an appropriate complaint mechanism should be created in the employer’s organization for redressal of the complaints made by the victims. Such complaint mechanism should ensure time bound action on complaints received.

  •  Complaints Committee:

The complaint mechanism, referred to in (6) above, should be adequate to provide, where necessary, a Complaints Committee, a special counsellor or any other support service, including the maintenance of confidentiality. The Complaints Committee should be headed by a woman and not less than half of its members 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 an NGO or any other body which is familiar with the issues of sexual harassment.

  • Worker’s Initiative:

 Employees should be allowed to raise issues of sexual harassment at the worker’s meeting and in other appropriate 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 legislations when enacted on the subject) in a suitable manner.

  1. Third Party Harassment:

 Where sexual harassment occurs as a result of an act or omission by any third party or an 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.

  1. 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.
  1. These guidelines will not prejudice any rights available under the Protection of Human Rights Act, 1993.

Statutes under Sexual Harassment

  • International Convention on Laws Against Sexual Harassment.
  • Universal Declaration of Human Rights (UDHR)
  • Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)
  • The United Nations Fourth World Conference on Women.
  • Indigenous and Tribal Peoples Convention.

What is the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013?

 INTRODUCTION

This Act came into force after the case Vishaka v. State of Rajasthan, 1997. It is an act of the legislature which was passed on 3rd September 2012. The bill got the assent of the President on 23rd April 2013. This act came in force from 9th December 2013.

This act is primarily based upon the guidelines stated under Vishaka v. State of Rajasthan for the protection of women from Sexual Harassment. According to the report given by International Labour Organization (ILO) every Indian employer is bound by this statute.

SCOPE

This Act is applicable to the whole of India.

OBJECTIVES

  1. Sexual Harassment at workplace is considered a violation of various women rights such as:
  2. Right to equality
  3. Right to life and liberty
  4. This act ensures safe and friendly working spaces for women employed under organized as well as unorganized sector.
  5. This act provides protection to the victims of Sexual Harassment at workplace.
  6. This act aims to develop and implement policies and schemes for the prevention of Sexual Harassment at workplace and to provide a permanent mechanism for the redressal of Sexual Harassment at workplace cases.
  7. This act provides for the constitution of a Complaint Committee in every workplace.
  8. This act provides for strict compliance with the directives laid down by the Supreme Court.

FOUNDATIONS OF THIS ACT

  • Human Rights by International Conventions and Instruments
  • Constitution of India
  • Article 11 of the CEDAW

.

In Conclusion…

As per my views, there is a proper need for implementation of the above said Act. As there is increase in the number of Sexual Harassment cases day by day, to eradicate this sort of cases the government and all concerned authorities should take necessary action and measures to tackle it. Initiative must be taken by oneself also. Therefore, it is a vital to stop Sexual Harassment at workplace.

-This article is brought to you in collaboration with Ankush Gandhi from Kurukshetra University.

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