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“ you’ll tell the condition of a nation by watching the status of its
-Pandit Jawaharlal Nehru
Sexual harassment of women is a global occurrence widespread both in developed as well as in developing countries. Sexual harassment is rooted in cultural practices and is intensified by power relations at the workplace. Cutting across religion, culture, race, caste, class and geographical boundaries it has unfurl like virus in the society. It, being derogatory to human dignity, human rights and gender equality, has appeared as a fundamental crisis all over the world. It is a serious issue involving women, their approach and behaviour, and the social norms of the society which forms complex interplay of gender, power and sexuality. In India, in every 12 minutes a women is sexually harassed. Due to industrialisation, globalisation, development in various fields, role of women is changing speedily in India. Today, women in India are showing development in almost all the fields such as education, politics, media, art, space and culture, service sectors, science and technology, etc. Hence offences against women are also rapidly increasing . In spite of rising incidences of sexual harassment, their reporting is nil as women fear loss of personal & professional honor and livelihood owing to the social stigma.
Sexual harassment is all about male dominance over women and it is used to warn women that they are weaker than man. In a society where violence against women is constituted just to reveal the patriarchal value operating in society, these values of men pose the greatest challenge in eradicating sexual harassment. Studies have revealed that 1 out of every 3 working women are touched by sexual harassment. Sexual harassment not only impacts on women it has a direct bearing on workplace productivity in today’s competing world.
WHAT IS SEXUAL HARASSMENT?
The term “Sexual Harassment” was coined by Lin Farley. In general this term “Sexual Harassment” means ; behaviour characterized by making of unwelcome sexual remarks or physical advances in a workplace. The word “Unwelcome Behaviour” is the critical word. Unwelcome does not mean “involuntary.” Legally, sexual harassment is a form of sex discrimination which infringes a woman’s fundamental Right to equality and Right to life, guaranteed under Articles 14, 15 and 21 3of the Constitution of India. The elimination of gender-based discrimination has been one of the fundamentals of the Constitutional edifice of India. The principle of gender equality is enshrined within the Constitution, in its Preamble, fundamental rights, fundamental duties and Directive Principles.
Why Sexual Harassment is called a Subjective Experience?
Sexual harassment differs from person to person, the level of discomfort an action had on the victim cannot be pre-determined . The view that sexual harassment is a subjective experience has been endorsed by the Delhi High Court in the case of Dr. Punita K. Sodhi v. Union of India & Ors. W.P. 7On 9 September, 2010 the court held “We therefore prefer to analyse harassment from the [complainant’s] perspective. A complete understanding of the victim’s view requires… an analysis of the varied perspectives of men and ladies . Those Conducts that can offend women are considered unobjectionable by many men…for men some forms of sexual harassment are “harmless social interactions to which only overly-sensitive women would object.
Sexual Harassment & The Law
International Laws and Policies for Addressing harassment within the Workplace. United Nations General Assembly Resolution 48/104123 on the Declaration on the Elimination of Violence Against Women defines violence against women to incorporate harassment , which is prohibited at work, in educational institutions, and elsewhere (Art. 2(b)), and encourages development of penal, civil or other administrative sanctions, as well as preventative approaches to eliminate violence against women(Art. 4(d-f)).
The Convention on the Elimination of all sorts of Discrimination against Women124(CEDAW) directs States Parties to take appropriate measures to eliminate discrimination against women altogether fields, specifically including equality under law, in governance and politics, the workplace, education, healthcare, and in other areas of public and social life. (Arts. 7-16).
Moreover, the Beijing Platform for Action, para. 178125, recognizes sexual harassment as a sort of violence against women and as a sort of discrimination, and calls on multiple actors including government, employers, unions, and civil society to make sure that governments enact and enforce laws on harassment which employers develop anti-harassment policies and prevention strategies.
The ILO Committee of Experts on the appliance of Conventions and Recommendations has confirmed that harassment may be a sort of sex discrimination covered by the Discrimination (Employment and Occupation) Convention (No. 111) of 1958. The ILO’s Indigenous and Tribal Peoples Convention (No. 169) also specifically prohibits sexual harassment in the workplace.
The International Covenant on Economic, Social and Cultural Rights contains sev-eral provisions particularly important for women. Article 7 recognises her right to fair conditions of work and reflects that women shall not be subjected to harassment at the place of labour which may vitiate working environment.
Indian Constitution On Sexual Harassment-
Sexual harassment clearly violates the elemental 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 keep it up any occupation, trade or business which is under Article 21 and her Right to safe environment free from harassment under Article 19(1)(g).
IPC on Sexual Harassment–
In 2013, substantial changes were made within the way harassment was viewed within the criminal justice system in India. The legal code Amendment Act of 2013, which commenced on April 3, 2013, included Section 354A of the Indian legal code , 1860 that defined harassment . The India legal code , 1860 has also defined the term harassment and related offences and put forth punishments for the same:
Section 354A– harassment is: unwelcome physical contact and advances, including unwanted and explicit sexual overtures, a requirement or request for sexual favours, showing someone sexual images (pornography) without their consent, and making unwelcome sexual remarks.
Punishment: Up to 3 years in prison, and a fine.
p– Forcing a woman to undress.
Punishment: From three to seven years in prison, and a fine.
Section 354C– Watching or capturing images of a lady without her consent (voyeurism).
Punishment: First conviction – one to 3 years in prison and a fine. More than one conviction–three to seven years in prison and a fine.
Section 354D– Following a lady and contacting her or trying to contact her despite her saying she doesn’t want contact. Monitoring a lady using the web or the other sort of transmission (stalking).
Punishment: First conviction – up to 3 years in prison and a fine. More than one conviction–up to 5 years in prison and a fine.
The same definition is given within the law enacted specifically for harassment i.e
Sexual Harassment of girls at Workplace (Prevention Prohibition and Redressal) Act 2013.
Pre- Vishaka Scenario–
Before the Vishaka guidelines came into picture, the ladies had to require matter of harassment at Workplace through lodging a complaint under Sec 354 and 509 of IPC.
Sexual Harassment as we all know has become a worldwide problem which may be a quite violence against women. International community has recognized in their International treaties and documents, the protection from harassment as a person’s rights of girls . All the legal instruments handling this matter are laid right down to protect life and liberty and these instruments are used as a way to curb and address this issue.
In India until the Vishaka’s judgment was given out, there was no law to control this matter and therefore the guidelines which came as an outcome of this case were derived from the Convention on the Elimination of all sorts of Discrimination Against Women (CEDAW). The Indian Constitution had grounded provisions within the sort 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 stop harassment of working women.
All employers or persons responsible of labour place whether publicly or private sector should take appropriate steps to stop harassment . Without chauvinism to the generality of this obligation they ought to take the subsequent measures:
a. Express prohibition of 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 incorporate the aforesaid prohibitions within the standing orders under the economic Employment (standing orders) Act, 1946.
d. Appropriate work conditions should be provided in respect of labor , leisure, health and hygiene to further make sure that there’s no hostile environment towards women at work places and no employee woman should have reasonable grounds to believe that she is disadvantaged in reference to her employment.
Where such conduct amounts to an offence under the IPC or under the other law, the employer shall initiate appropriate action in accordance with law by making complaint with the acceptable authority. In particular, it should make sure that victims or witnesses aren’t victimized or discriminated against while handling complaints of harassment .
Where such conduct amounts to misconduct employed as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules.
Whether or not such conduct constitutes an offence under law or a breach of the service rules, and appropriate complaint mechanism should be created within 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 capable provide a complaints committee, a special counselor or other support service, including the upkeep of confidentiality.
The complaints committee should be headed by a lady and not but half 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 back to the govt department concerned of the complaints and action taken by them.
The employers and person responsible also will report on the compliance with the aforesaid guidelines including on the reports of the complaints committee to the govt department.
Employees should be allowed to boost problems with harassment at a workers’ meeting and in other suitable forum and it should be affirmatively discussed in employer-employee meetings.
Awareness of the rights of female employees during this regard should be created especially by prominently notifying the rules (and appropriate legislation when enacted on the subject) during a suitable manner.
Third Party Harassment-
Where harassment occurs as a results of an act or omission by any third party or outsider, the employer and person responsible will take all steps necessary and reasonable to help the affected person in terms of support and preventive action.
The central/state governments are requested to think about adopting suitable measures including legislation to make sure that the rules laid down by this order also are observed by the employers privately sector.These guidelines won’t prejudice any rights available under the protection of human rights act, 1993. ResultView Original
Post- Vishaka Scenario-
India didn’t have any legislation till the Bill for the Protection of girls from harassment was moved within the Parliament within the year 2005. After a ten long years gap in 2010, the Bill was within the Lok Sabha with slight changes within the old Bill. The new Bill defined “sexual harassment” and also provided for a redressal mechanism through “Internal Complaints Committee” within the workplace or “Local Complaints Committee” at the district level. Women who are employed also as those that enter the workplace as clients, customers or apprentices besides the scholars and research scholars in colleges and universities and patients in hospitals are sought to be covered under the proposed legislation. However, domestic workers performing at home aren’t covered. Additionally, there have been problems regarding the action to be taken against false and malicious charges or complaints, subsequently to unravel this issue the Parliamentary 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 fees are found and proved the report of an equivalent must be sent to the DC (Disciplinary Committee) and it’ll take action as per the service rules. This is again a time consuming process, where the victim has got to produce the evidences again and undergo cross examination, which may be a quite mental torture to the victim. The case could also be different with a personal sector regarding the second process of enquiry, these stages or traditions are acting against the worth Constitution of ICC.
In reference to this, the Apex Court just 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 offer punishment and to conduct second enquiry.
Till the new Act of 2013, came into effect; the matter of harassment was governed by the rules laid down by the Vishaka’s case within the year 1997. The main objective of the Act was to implement the rules and to make sure an access a secure workplace by woman.
The harassment At Workplace (Prevention, Prohibition And Redressal) Act, 2013-
The harassment Act (Hereby called as an ‘Act’) was finally enacted within the year 2013 for the prevention of harassment against women at workplace within the whole of India. The main objective of the act was protection of girls , prevention and redressal of harassment complaints. Section 2(N)of the act defines harassment as anybody or more of the subsequent unwelcome acts or behavior (whether directly or by implication) namely:
1. Physical contact and advances; or
2. a requirement 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.
Sexual Harassment: Case laws in India
There are various cases which had precede the courts in India and therefore the judgment in most of the cases has motivated women to register more complaints as compared to earlier:
1) Apparel Export Promotion Council v. A.K Chopra
The Supreme Court in this case declared that sexual harassment is gender discrimination against women and also said that any act or attempt of molestation by a superior will constitute sexual harassment.
2) Mrs. Rupan Deol Bajaj v. Kanwar Pal Singh Gill
This case has changed the meaning of the terms, modesty and privacy in such how that, any quite harassment or inconvenience done to a women’s private or public life will be considered as an offence.
3) Vishaka & others Vs. State of Rajasthan & others
In this case Supreme Court laid down the following guidelines which recognized it not only as a private injury to an individual woman but also as the violation of her fundamental rights. These guidelines are significant because for the first time sexual harassment is identified as a separate category of legally prohibited behavior. These are subjected to all or any workplaces until the other legislation is gone by parliament during this regard
The guidelines are as follows:
· it’s the duty of each employer to deliver a way of security to each women employee.
· Government should make strict laws and regulations to ban harassment .
· Any act of such nature should result in disciplinary actions and criminal proceedings should also be brought against the wrong doer.
· The organization should have a well found out complaint mechanism for the redressal of the complaints made by the victim and will be subjected to an inexpensive time.
· This complaint mechanism should be in the form of complaint committee which need to be headed by a women member and at least 50% of the committee members should be women in order that victims don’t feel ashamed while communicating their problems. This complaint committee should even have a 3rd party involvement within the sort of NGO or other body which is conversant in this issue. There is a requirement of transparency within the functioning of this committee and for that there’s a requirement of submission of annual report back to the govt .
· Issues concerning harassment shouldn’t be a taboo within the workers meeting and will be discussed positively.
· It is the duty of the organisation to aware the female employees about their rights by regularly informing them about the new guidelines issued and legislation passed.
· The employer or the person responsible is duty biased to require the required and reasonable steps to supply support to the victim if harassment takes place due to the act or omission of the third party. ResultView Original
· These guidelines aren’t limited only to government employers and will even be followed by employers privately sectors.
4) Medha Kotwal Lele & ors. v. Union of India & Ors
This case helped the Vishakha’s case to implement the rules successfully by issuing notices to all or any states and therefore the union territories to impart the required steps.
FILING OF A FALSE CASE MALICIOUS FILING OF A FALSE WORKPLACE SEXUAL HARASSMENT CASE
Where any woman files a false case of sexual harassment against any person, knowing that the documents provided are misleading and can affect the reputation of such person, a call for inquiry will be made by Committee against the complainant to gather adequate proof establishing that the complainant has intentionally provided false evidence and misleading documents. On proving of the guilt the committee ,may recommend to the employer of the witness or the District Officer, as the case could also be , to require action in accordance with the provisions of the Act or the company policies or as the case demands for. Section 14 of the Act deals with Punishment for false or malicious complaint and false evidence.— (1) Where the Internal Committee or the Local Committee, because the case could also be , arrives at a conclusion that the allegation against the respondent is malicious or the aggrieved woman or the other person making the complaint has made the complaint knowing it to be false or the aggrieved woman or the other person making the complaint has produced any forged or misleading document, it’s going to recommend to the employer or the District Officer, because the case could also be , to take action against the woman or the person who has made the complaint under sub-section (1) or sub-section (2) of section 9, as the case may be, in accordance with the provisions of the service rules applicable to her or him or where no such service rules exist, in such manner as could also be prescribed: as long as a mere inability to substantiate a complaint or provide adequate proof needn’t attract action against the complainant under this section: Provided further that the malicious intent on a part of the complainant shall be established after an inquiry in accordance with the procedure prescribed, before any action is suggested . (2) Where the interior Committee or the Local Committee, as the case may be, arrives at a conclusion that in the inquiry any witness has given false evidence or produced any forged or misleading document, it’s going to recommend to the employer of the witness or the District Officer, as the case may be, to take action in accordance with the provisions of the service rules applicable to the said witness or where no such service rules exist, in such manner as may be prescribed. The section provides that where a woman has intentionally filed a false complaint to prejudice the character or position of another person against whom such complaint has been filed, the Internal Committee or the Local Committee as the case may be , may recommend to the employer or the District Officer to take action against such woman or any person who filed a malicious complaint on behalf of the woman. The employer or District Officer in such case can take any action as per in accordance to POSH At or the service agreement or companies policy. It is to be noted that mere failure on part of the complainant (woman) to provide proof against the respondent to prove the allegations wouldn’t make the case false. What’s important is to prove that the intentions of the complainant where malicious or spiteful at the time of filing of such complaint.
Also read: MEDIA TRIAL AND CRIMINAL ANGLE
Anita Suresh Vs Union of India & Others,P (C) 5114/2015: The Hon’ble High Court of Delhi has dismissed a writ petition filed by the complainant and has passed an order directing the petitioner/complainant to pay a fine of INR 50,000 for filing a false complaint and misusing the provisions of the POSH Act. •
Union of India Vs. Reema Srinivasan Iyengar, WP Nos. 10689, 24290 and 4339 of 2019: The Hon’ble supreme court of Madras observed that ‘Though the harassment of girls at Workplace (Prevention, Prohibition and Redressal) Act, 2013 is intended to possess equal standing for ladies within the workplace and to possess a cordial workplace during which their dignity and self-respect are protected, it can’t be allowed to be misused by women to harass someone with exaggerated or non-existent allegations.’
Failure in implementing the laws concerning sexual harassment:
As per the vishakha guidelines, it’s made compulsory to constitute a complain committee in every workplace but private companies hardly institute them while the govt organizations just roll in the hay on paper. The organizations during which these committee exists face other serious problems because it is been reported by victims that the committee members don’t even have the clue of their responsibilities, powers and duties then this rarely lead the victim to urge justice. The attitude of the employer is deep-seated as they need a presumption that this cannot happen in their organization then the women’s complaint find yourself with nothing. People use to form fun of her and this makes her incapable of getting justice or being heard properly.
Section 354 (on which the ruling within the Mrs. Rupan Deol Bajaj v. Kanwar Pal Singh Gill was based) and section 509 of IPC is that the criminal provision applied in most of the harassment cases, but yet these provisions have only limited effectiveness. Therefore, we will say that there’s no strong legislative stand against harassment within the workplace.
A number of bills (by the national commission for women, women’s organization and the government) have been drafted but there is still confusion on what bill would serve the purpose better. At present, the draft Protection of Women against Sexual Harassment at Workplace, 2007 is pending with the ministry of women and child development. There are certain suggestions being made by women organizations to make changes in the bill:-
ü To provide for procedural training of members of the complaints committee.
ü To modify provisions of section 11 (no action will be taken if the allegation against the respondent is not true) and section 12 (if a local committee concludes that the allegation against the respondent is false, than action will be taken against the complainant) of this bill.
Preventive Measures to Curb Sexual Harassment
The basic requirement for implementing any law in the society for women is change in attitude of people . Implementation of laws leads to protection against undesired sexual behaviour. The prevention of sexual harassment should be done at all level of employees and it should be regularly checked that the women employees get a positive environment. We recommend the following steps that need to be taken for preventing sexual harassment at workplace.
1. There should be well set up complaint channel which is in direct communication with the women employee. The women should not feel obscure in complaining about the problems she is facing during employment at the workplace. The complaint committee should take all such kind of complaint very seriously and appropriate action must be taken within reasonable time.
2. Women workers’ should not fear in talking about any harassment related to sex and it is their duty to immediately bring in notice to the complaint committee about any such act.
3. It is the duty of the complaint committee to keep every complaint confidential.
4. Every organisation should conduct sexual harassment awareness training for both the male and female employees. This mutual learning will help in creating an atmosphere of hostility and employees will feel comfortable. This training should also include the impacts of sexual harassment on women.
5. A commitment is required from all the levels of the organisation for the positive implementation of the policies and procedures made against sexual harassment.
6. Every employee should understand that it is his legal duty to provide every women employee a sense of security in workplace.
Sexual harassment at workplace is highly prevalent in India and there is a need to provide safe environment to all female employees. Government should make separate laws for this major issue. It should also realize that women worker also constitute a part of working population in India and it’s the duty of the government to provide them safe environment and security at work. New strategies should be made by the employers and managers to protect the organisation from this evil. Government and employers should ensure that women should be treated equally and gender discrimination should not take place at the workplace. Effective implementation of the policies can reduce the manifestation and mutilation of the sexual harassment to the minimum. One organisation can change its approach to handle sexual harassment by viewing other organisations tactic. This will reduce or eliminate glitches caused by this harmful transgression. Government should understand that separate laws may not bring about equality in gender relations but a law dealing with sexual harassment would provide women immense support in their struggle. And my concluding words are that we won’t accept anything as it is we will speak out for all injustice done to us and it’s our right to have safe environment and security.
Vishakha and other Vs. State of Rajasthan and others(AIR 1997 SC 3011)
Joanne Conaghan, “GENDERED HARMS AND THE LAW OF TORT: REMEDYING (SEXUAL) HARASSMENT”, Oxford journal of legal studies, vol. 16, issue 3.
Author: Nikhat Fatima, University of Allahabad
Editor: Kanishka Vaish, Senior Editor, LexLife India.