General

________________________________________________________________________________

This Blog is written by Manjari Shukla from Symbiosis Law School, Noida. Edited by Lisa Coutinho.

________________________________________________________________________________

INTRODUCTION

Sexual harassment at workplace or sexual harassment as a whole has been there in society since time immemorial. Thus, we can say that it has become synonymous with our society. But recently the trends have changed. Earlier it was common amongst women, but now it has become a gender-neutral thing, i.e. it is also happening to men from the past few years. With time, now it has become very imperative to address this topic seriously. Without delving deep into the emotions, let’s know what exactly Sexual Harassment at workplace is.

In a layman language, it is a sort of any unwelcoming act, inflicted by one person upon another person working in proximity or in the same environment. As a result, there is predicament created for that person, and he/she also suffers mental agony. Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964. With time there have been various definitions given to this by the judiciary and through various legislations not just by Indian government and judiciary but also by various countries. This topic has received worldwide recognition, and the work has been done to pacify things and make a new normal where people can work freely, without any fear. Not just people in power but also the common man or people associated with various human welfare organisations are striving for a pacified and work-friendly environment. But in spite of various legislations and various movements such as #metoo movement, there has been no change in the harassing conditions in a workplace.

In India, this grave problem got recognition through a case, Vishaka v. State of Rajasthan which related to sexual harassment of women at her workplace. In this very case, Hon’ble Supreme Court gave guidelines known as Vishaka Guidelines, which prescribed rules against sexual harassment at workplace which should be followed by every organisation. Later on, Parliament passed the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. In this act, there was a proper definition given to Sexual Harassment at workplace. But this act prescribed provisions only for women, whereas Vishaka Guidelines given by judiciary was gender-neutral.

SIGNIFICANCE

Sexual Harassment affects the whole society directly or indirectly which is harmful and deteriorates its peace. A worldwide movement known as #MeToo movement against sexual abuse and sexual harassment was witnessed recently, wherein people came forward and publicized the harassment inflicted upon them by their employers or people in power. This movement was initially started by Tarana Burke, an American activist, but this hashtag became popular and viral around 2017.  Following the #Me Too movement, the world became aware of this sort of crime going on a really big scale. Sparked by this, the International Labour Organisation (ILO) on June 21 adopted a global convention against the sexual harassment at the workplace. One of its kind of treaty was ratified for the first time by most of the member nations to protect its people against this kind of violence as it was harming people. They were getting de-motivated and were leaving their jobs, they were compromising on their morals just for the sake of there job. Absenteeism was seen a lot, and above of all, a lot of embarrassment was faced by the employees. ILO prescribes that “Sexual harassment is a serious form of sex discrimination, and it should not be tolerated as it undermines equality at work by calling into question the integrity, dignity and well-being of workers”. [1] The convention was gender-neutral, and included interns, trainees, employees, etc. and countries ratifying were bound to enact legislation against sexual harassment at workplace and make it mandatory for the public as well as private sectors to comply by the legislations by forming core committees.

As India is a founder member of ILO, it promulgated the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. This act defined the meaning of sexual harassment at workplace and prescribed the mechanism to be followed.

 

IMPACT

MeToo movement against sexual harassment had various economic, social, cultural and political impact around the globe. It gave momentum to the cause against harassment. People, especially women, from all the spheres, came forward with their issues and talked about it out loud. There was a change of perception and family dynamics. Back in India, this impacted a lot. Our Bollywood industry was completely exposed to sexual harassment, and artists came forward without any fear and levelled accusations against people who harassed them in one way or the other. Patriarchal society saw the change and the young generations were educated about the happenings in the society, and as a result, they developed a kind of respect for people facing this, and also there was a change of mindsets. Whereas Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 gave a new perspective. It gave responsibilities to the organizations and its employers. It paved the path to a safe environment. It also gave a lot of mental support to the women out there. Women now have the courage to report these incidents without any fear because now they have an act, a right which will definitely do them justice.

But with positives, comes negatives too. There were also a lot of ill-effects of these acts and movements. These women grabbed the courage to disclose what happened to them, but ultimately, they did not get justice. Instead, they lost their jobs, had to face embarrassment, were denied promotions, had to go through a lot of mental torment and were isolated. Like this, there were many problems faced by men and women both who reported the incident of harassment.

PROVISION IN THE LEGISLATURE

Deriving its basis of formation from the case, Vishaka & Ors. v State of Rajasthan, the assurance of protection of women against any kind of sexual harassment, molestation or assault at workplace, either in public or private [2] has been enacted as a law in the Indian legislature by the Presidents assent on 23^rd April 2013.

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 is the title of the Act no. 14 of 2013. This act was enforceable from 9 December 2013. The guidelines for Prevention of Sexual Harassment (POSH) put forward by the Supreme Court of India in the Vishaka case were superseded by this statute. As stated in its preamble, it aims at preventing, stopping and providing a remedy for sexual harassment, which is violative of Articles 14, 15 (Fundamental rights involving Right to Equality) and Article 21 (Right to Life with Dignity) of the Constitution of India, involving incidents relating to workplace scenarios.  This act defines sexual harassment as any unwelcoming physical, verbal-nonverbal sexual act including physical contacts, advances, any kind of sexual favours, showing pornography and sexually coloured remark or any other unwelcome act be it of any sort, physical or verbal. [3]

The statute defines various circumstances, such as implicit or explicit favours during a women’s tenure, preferential treatment, detrimental treatment, or any remarks which may affect her health, interfere with her work and pose a threat to her present and future job. [4]

Another provision is the setting of the Internal Complaints Committee at every office in every organization, having more than 10 people, to address the complaints and redressal of the same relating to sexual harassment. [5] If there are less than 10 people in an office, then a local authority should be formed with district officer in every district. [6]

CASE LAWS

Vishaka & Ors. v. State of Rajasthan [7]

This is the most crucial case forming the bedrock for prospected guidelines and was decided by the Supreme Court of India. In Rajasthan, the state of colours, a social worker named Bhanwari Devi, on stopping a child marriage from being conducted, was brutally gang-raped.

The Supreme Court of India decided that for assurance of gender equality, right to work and right life, with dignity, it was necessary to consider the International Conventions and norms, they being significant for the interpretation of the rights. The meaning of Sexual Harassment was particularly demarcated by the Supreme Court of India in this case.

Also referred to as eve-teasing in India, sexual harassment constitutes unsought and unwelcomed sexual favours, gestures or advancements from one gender to another. Accordingly, it acts as violative of the fundamental right of gender equality for women, laid down under Article 14 and of the fundamental right to life and with dignity, under Article 21 of the Constitution of India.

The guidelines were laid down so that the person-in-charge of the relevant institution, organisation or office, either in private or public, will be responsible for putting forward such measures and means to prevent harassment. Convicts shall be penalised and punished. The judgement bench consisted of J.S Verma, Sujata Manohar and B.N Kripal. It was looked as a substantial legal triumph from women’s groups in India

Ruchika Singh Chhabra v. M/s Air France India & Anr. [8]

In this case, the appellant, an employee of Air France, alleged to have been sexually harassed by another employee, now the Managing Director, a French national. Most companies didn’t follow the Vishaka Guidelines. Even if they did, it was merely ritualistic and hardly ever put into practice.

It was observed by the bench comprising Justice S. Ravindra Bhat & A.K. Chawla, that there was a prominent need for the Vishaka Guidelines to be taken seriously and not just to be followed in an empty, ‘ritualistic manner’. [9] By showing the courage to speak out against unsolicited behaviour, regardless of the perpetrator, the appellant is not merely subject to pity or sympathy and an infraction or permissiveness in implementation in one case, implied the in-charge and employer’s inability to ascertain such security and equality at its workplace.

 

Shanta Kumar v. CSIR [10]

The proceedings of the Complaint Committee were challenged by the appellant as it was concluded by the committee that the nature of the scenario was not sexual but administrative and managerial. Whereas, before the Delhi High Court, the appellant contended that the report lacked application of mind, and that respondent had touched petitioners’ arm and any unwelcome physical contact would amount to sexual harassment. [11]

It was held, that an accidental physical contact, even if derogatory in sense wouldn’t be eligible as sexual harassment when not made in the framework of a sexually oriented conduct. [12]

 

ANALYSIS

Vishaka v. State of Rajasthan played a very important role in highlighting the issue of sexual harassment at the workplace in India. It is very significant for the development of scenarios favouring the formation of this very act. The other cases played an important role in providing proper provisions, keeping in mind all the fundamental rights enshrined upon as by our very Constitution.

In India, Oxfam India and the Social and Rural Research Institute jointly carried out a study titled Sexual Harassment at Workplaces in India 2011-2012 covering 400 working women in Delhi, Mumbai, Bangalore, Chennai, Kolkata, Ahmedabad, Lucknow, and Durgapur. Of the 400 respondents, 66 faced a cumulative 121 incidents of sexual harassment. Out of 121 incidents, 102 were reported to be non-physical, whereas the remaining 19 incidents were physical. Ninety-three of the respondents reported awareness of sexual harassment of women at workplace. However, a majority of the victims did not resort to any formal action against the perpetrators. [13]

 

CONCLUSION

All the instances to curb sexual harassment at workplace have greatly helped in the cause. Despite the existence of negatives, one should focus on the positives and should learn from it and should strive and work harder to remove the negatives, because this negative can make our society shallow. After all, a society where its people are not happy or at peace, can never grow. It hampers the growth in several ways be it economic, cultural, political, etc. In India, this act against sexual harassment is very progressive, but needs to change with time. The concept of Internal Committee (IC) within every organization should be dealt with more importance and should be more vigilant. Employers should come forward and addresses the issue and hold the harasser accountable and should give the strict punishment. And as of now, in India, many organisations have not complied with this act, but the government should be stricter and should look that laws are complied. It should be enforceable in the strictest form.

In this time of pandemic, when the whole world is under a sort of lockdown, there is no full stop to this sexual harassment, instead it is increasing digitally. Sexually harassing conduct doesn’t merely occur with a harasser and a victim in a physical workplace. It can occur digitally too, from the perceived safety of our own homes. Millions of women and girls are using videoconferences frequently, sometimes daily, to work and study. According to diverse media outlets, social media posts and women rights experts, different forms of online violence are on the rise including stalking, bullying, sexual harassment, and sex trolling. Examples include unsolicited pornographic videos while they are dialling into a social event via a virtual chat room. As 2020 moves forward, social distancing has forced rapid changes in our working environments. Yet workplace sexual harassment persists around the world, even as the physical workplace has morphed (today more than ever) into an environment that is both digital and increasingly out of the office.

Another issue which is raised nowadays needs to be addressed by our government. The act passed is particularly for women, whereas it should be gender-neutral as men too are facing equal amount of sexual harassment in the same or different form as the woman. They are also going through equal mental torture. Our government should recognize this as it also violated the fundamental rights provided to them under Article 14, 15, 16 and 21of Constitution of India, and should amend the existing act in order to make it gender-neutral.

The situations have not really changed, but we can say that work is in progress. All the governments and humanitarian organizations are working towards improving the conditions for everyone, so that nobody is deprived of their basic, fundamental and human rights. For this, the prevalent culture of sexual harassment needs to be changed. A country’s and company’s culture must be kept in mind in understanding and preventing sexual harassment, now more than ever.

REFERENCES

[1] ILO, Report of Committee of Experts on the Application of Conventions and Recommendations (articles 19, 22 and 35 of the Constitution): General Report and observations concerning particular countries, Report III (Part 1A), 91st Session of the International Labour Conference, Geneva, 2003, page 463.

[2] Sexual Harassment of Women at Workplaces Act, No. 14 of 2013.

[3] Sec 2(n) of the Act.

[4] Sec 3(2) of the Act

[5] Sec 4 of the Act

[6] Sec 5, 6 and 7 of the Act

[7] Vishaka & Ors. v State of Rajasthan, (1997) 6 SCC 241.

[8] Ruchika Singh Chhabra v. Air France India and Anr., (2018) SCC Del 9340

[9] Jaya Kodate v. Rashtrasant Tukdoji Maharaj Nagpur University (2014) SCC Bom 814

[10] Shanta Kumar v. Council of Scientific and Industrial Research & Ors, (2018) SCC Del 719

[11] K.P. Anil Rajagopal v. State of Kerala, (2018) 1 KLJ 106

[12] Shanta Kumar v. Council of Scientific and Industrial Research & Ors, (2018) SCC Del 719

[13] Fernandes, D., 17% women sexually harassed at workplace, Times of India, Bangalore, 28 November 2012.