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The foundations of the politics of mind and body enables a new form of study by looking at Sexual Harassment in Workplaces as cases of Tortious Liability.
First, let us look at the two definitions of Sexual Harassment and that of Tort :
(1)The Equal Employment Opportunity Commission of the United States defines Sexual Harassment as ” Unwelcome sexual advances, requests for sexual favours, and other verbal or physical conduct of a sexual nature when submission to such conduct is made either explicitly or implicitly The term or condition of an individual’s employment, or submission to or rejection of such conduct by an individual is used as a basis for employment decisions thereby affecting such individual, or such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.” he Modus Operandi of such generative oppression and intention can be multiple i.e. in the form of physical contact and advances, sexually coloured remarks, showing pornography and sexual demands, whether by words or actions
(2)The idea of Tort connotes to a Civil Wrong which is recovered by an action for unliquidated damages and which is other than a breach of contract, the latter difference coming into the play only after the Industrial Revolution.
Incorporating the acts of Sexual Violence in Workplaces as a tort is a recent and unique concept and there are no established legal theories that support the claim. Thus it is our unified effort at understanding an otherwise criminal offence and deconstructing it by means using the Law of Torts. Sexual Harassment is unethical, immoral, barbaric and affects the dignity and self-respect of an individual. The question of equality and inclusivity of gender in workplaces has been talked about again and again. Establishing a case of Sexual Harassment as a Tort must be done either as an act of Omission9that which is not prescribed by the law), an act of legal damage(abiding by the principle of injuria sine damnum) done to the person and the subsequent compensation thereof.
In this, we must try to understand the various kinds of Torts in the light of these cases on Sexual Harassment :
- If any person demands sexual favour in exchange of a professional benefit or up-gradation and incrementation of salary and other unsaid perks, thereby avoiding any punitive action, then the idea of quid pro quo can be used in this case.
- If an employer is unable to make the professional space conducive for working for a woman because of undertones of sexual tensions and likewise horrors of assaults, then the environment is said to be hostile and the situation can be considered in the wider scope of tort.
- The idea of Assault under tort can be legally made viable if a person has threatened another person to hurt physically, intended to do the same(having the ability in the first place to cause the action) or in some way made her apprehensive with his or her course of action.
Two things are important for us to be noticed in this regard:
Whether the physical harm was done intentionally or whether the apprehension of the victim that she will be harmed is because of a certain behaviour received from the assaulter.
- A suit of Sexual Harassment under Battery can be filed if the victim has been forcefully, intentionally and violently touch with an intent of harm, revenge and insolence. The victim has to only show that she has been touched and that in turn had led to her trauma.
It is for us to understand that any form of verbal abuse cannot be considered under the hood of apprehension in case of assault and both assault and battery can be filed as a suit together if any prior incident or any present hostile environment or behaviour from a concerned person had made her apprehensive of a incoming inappropriate touch which can be as traumatic as a real touch.
- A tort suit for sexual harassment can also be filed if the person has been unlawfully detained by force or by constrictive use of unharnessed power and authority and it falls under the purview of the False Imprisonment.
- Any intention of a person that caused emotional and psychological distress can be charged against with a tort suit for intentional infliction of emotional distress. Thus the malicious thought, harmful motive or an intended battery or assault leading to emotional stress can be contained under this order.
Counter defence of sexual violence can makes it an important study under tort as well. There are a large amount of defence that can counter a charge of sexual assault. If the defendant admitted that he sexually takes advantage of other person and proved that other person also gave the consent for his sexual behaviour or he proved that at the time of sexual harassment, he was insane or not in sound mind, then he shall be free from such charges or the magnitude of such punishment can be considerably reduced. Also by providing an alibi who can help the defendant’s claim that he is not guilty and has been elsewhere during the commitment of the act, he can prove his innocence.
Let us now discuss the landmark Vishaka Judgement [Vishaka and Others Vs. State of Rajasthan and Others (JT 1997 (7) SC 384] that laid down Vishaka guidelines and further the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
The Bhanwari Devi gang rape case is perhaps the base on which this entire set of events have been framed. Bhanwari Devi was a Dalit woman who was employed by the Rajasthan government Women’s development programme as a “Saathin”, where she has responsibility for educating and spreading awareness among the downtrodden section of the society. She worked in the frontiers of-
>Hygiene >Family Planning >Female education>Eradication of female foeticide and infanticide >Dowry >Child Marriages.
Due to such an attempt of prevention of the child marriage of a nine-month-old girl, she was harassed, heckled, threatened and finally was brutally gang-raped by five Gujjar Thakur men, along with assaulting of her husband in 1992.
This resulted in a nationwide protest that took the shape of an awareness programme against such a heinous crime, especially during the execution of a noble social work in an official capacity. There was no law back in 1992 to protect the interest and modesty of women threatened by the “gaze”, gender-based discrimination and most importantly sexual and mental harassment. A writ was filed in the Supreme Court by Vishaka(Rajasthan), Women’s Rehabilitation Group( Rajasthan), Jagori(Delhi) and Kali(Delhi)demanding a set of rules or guidelines to identify, attend, initiate and redress the complaints inside an organization and reduce or eradicate such activities.
However, what concerns the case from the point of view of tort is the demand that the nation sought in favour of Bhanwari Devi to be paid compensation. .Rallies were organized in Jaipur when these Gujjar men were acquitted of the charges by a trial court. The case was not handled with kindest of interest by the administration and the Court of Justice. The investigations were influenced, the information tampered in lieu of the FIR and the medical examinations were being grossly manipulated. Lathi charge on the protesters followed and after the trial court dismissed the case, the villagers rallied up to her home and tried to oppress her voice. The activists who had filed the PIL and other signatories of the Petition rushed to the spot to help her, but she was so resolute herself that she could handle the case and advised the activists to do the follow-ups of the petition. Naina Kapur and Meenakshi Arora fought the case for Bhanwari Devi, demanding a set of guidelines and also the panel of jurists including Justice Nariman who acted as amicus curiae, initiating a quick actions and prioritizing this event uniformly.
The important developments in this sphere have been summarized for our better understanding –
1. Cases regarding sexual harassment or assaults on the womankind were previously dealt under section Section 354 and Section 294 of the Indian Penal Code. It circumambulated around the British idea of the gaze that had been delivered as a tool of objectifying women and has been talked about repeatedly by Social theorists and First Wave Feminists since the late 1800s. Section 354 dealt with the terminologically high sounding concept of “modesty”, more appropriately the feminine modesty reducing the gendered narratives to a backseat and often making the scenario wholly surrendered to the authorities. Moreover it strategically neglected the intensity and the degree of violence involved in cases as Bhanwari Devi’s because Section 294 dealt with the idea of eve-teasing under which such crimes were all uni-labelled thereby overlooking the intense trauma involved in physical and sexual assaults.
- A path of rooting for Constitutional Remedies (using Constitutional Tort) led to a more distinct, justified and suitable remedy in the Bhanwari Devi case as the Criminal Cases would have failed to provide the timely justice to the woman in question. In this judgement, it was held that even working women have rights to gender equality, to work with dignity and to a working environment, safe and protected from sexual harassment or abuse under articles 15, 19(1) and 21 of the Indian Constitution. Thus Article 32 was to be used for the enforcement of the Fundamental Rights of women, especially Working Women, thereby protecting them from such cases of Sexual Harassment.
3. Bhanwari Devi’s case was important in understanding how justice had been overlooked in cases of honorary low waged workers. Thus the appeals gave a room for raising pertinent points – that this harassment or more specifically the Rape happened in the “workplace”. Thus the idea of “workplace” underwent a radical change in definition from its earlier traditional ideation.
4. “Their failure to recognize her as a worker of a government programme is what triggered us to make this a discourse about workplace harassment.”, said the founder of Jagori, Abha who worked in the direction of establishing the plight of Bhanwari Devi while she was delivering her “official duty”.
Other articles that had been referred to by the bench consisting of Justice Verma(CJI), Justice Sujata V. Manohar and Justice B.N. Kirpal–
>Article 15 that directs the state to be fair on grounds of religion, race, caste, sex, place of birth while dealing with its citizens.
>Article 42 gives the provisions for just and humane conditions of work and maternity relief.
>Article 51A: says Citizens must abide by the duties laid down by the Constitution and also its ideals.
>Article 51 can also be used in this regard to promote International Peace and Security and respect International Laws. By using the Article 253, such as International Agreements, Treaty, Conventions can be domesticated and used in cases as such where regional laws are not there. This is to be read with Entry 14 of the Union List in Seventh Schedule of the Constitution. Article 73 also provides that the executive power of the Union shall extend to the matters concerning which Parliament has power to make law. The root of everything is the consideration of the violation of “human rights” that is included in Section 2 (d) of the Protection of Human Rights Act,1993.
The first judge- prescribed law that drew judiciously from the International Law, the Constitution of India, the Right to Freedom of Work had deeper connotations and supplementary negatives in that Bhanwari Devi’s case did not get the justice and is pending for 26 years. “The court of law and the government has failed me but I got justice in the people’s court. I also got justice in God’s Court”, Bhanwari Devi’s recent interview had her saying.
However, the positive outcomes of the Vishaka Judgement must also be mentioned: In these guidelines, the court decided that there must be a disciplinary committee in every company which take action against the sexual harassment act in that company. Then Justice Verma Committee Report came which said instead of the Internal Complaints Committee there is Employment Tribunal must be set up. The Committee recommended because his opinion was that having an internal committee which comprises of members who are employees at the same workplace would defeat the entire purpose of having such a committee to check cases of sexual harassment since the employer will be in a position to put some sort of pressure on the members.
As a case of Reference, Kerans v. Porter Paint Company,61, Ohio St. 3d 486,575 N.E.2d 428(Ohio 1991 )stands important as in this the court decided that even sexual harassment injury can be met by providing a compensation, where such compensation alone may not be sufficient relief for these injuries. The employers were thus vicariously liable for the sexual harassment of their employees when they knew or should have known about the harassment.
The redressal of such cases of Sexual harassment can thus be best dealt with by using the law of torts. In such a plaguing situation, however, the damages provided to the Plaintiff in generally in the form of monetary compensation and this does not help much to alleviate the mental and psychological trauma that she had endured during this entire period from the event to the seeking of justice as also said by the Court in Kerans v. Porter Paint Company
Thus even if the remedy is rendered, we must understand how much it is effective in providing the much-needed solution in such a situation.
Inference of our Motion :
What is to be understood by future legal practitioners is the need to work towards a stricter law of Tort in such cases as the pressure to prove the defendant guilty of charges is immense and is to be done only on grounds of proof that are beyond reasonable doubts. Thus within the purview of Criminal Law, the woman has to go through an insurmountable series of interrogations to satisfy the Court of law. This is again a huge challenge and a substantial threat to the integrity of a woman as mentioned earlier. Using Constitutional Tort thus makes the path to justice faster, if not any easier for the woman. The economic losses thus can be met for by the application of the law of torts as any event leading to a mental health issue resulting in resigning, eviction or other kinds of harms can be covered and strategically dealt with under Torts
- Woolf, Virginia. A Room of One’s Own. New York: Harcourt, Brace and Company, 1929. Print
- Adichie, C.N. (2015). We Should All Be Feminists. New York, NY: Anchor Books.
Cases Mentioned: Primary– Vishaka and Others Vs. State of Rajasthan and Others (JT 1997 (7) SC 384; Reference– Kerans v. Porter Paint Company,61, Ohio St. 3d 486,575 N.E.2d 428(Ohio 1991)
Author: Chandril Chattopadhyay, Department of Law, The University of Burdwan
Editor: Kanishka Vaish, Senior Editor, LexLife India.