Image Courtesy: Prentsa Aldundia | Flickr


Author: Ishani Jammula


Introduction

The Preamble to the Constitution of India states “equality of status and opportunity” to be secured among all the citizens as guaranteed under Article 14 of the Constitution which emphasises on equality. The Constitution also enshrines the right to live with dignity on the ground to protect life and ensure personal liberty as explained under Articles 15 and 21 respectively. This has been further ratified by the UN Convention on the Elimination of all Forms of Discrimination against Women adopted by the UN General Assembly.

The number of cases of sexual harassment at the workplace has increased at a rate of 30% in recent years. Nevertheless, there has been a growth of 33% in the representation of women in companies. However, the number of pending complaints have increased to 14% showing that there still needs to be conscious implementation in the laws for delivering prompt justice. Ever since the evolution of #MeToo movement, the women have become more likely to report the unwanted gestures shown by men at the workplace.

Sexual harassment is a gross violation of the fundamental rights of a woman to equality and dignity as enumerated under Article 14 and 15 of the Indian Constitution respectively. It is often explained to be a harmless flirtation which women tend to enjoy, however, its consequences are such that it disturbs the mental health of the victim involving serious economic, human and social costs.

Relevant Statutes/Provisions

Indian Penal Code

Various sections relevant under the Indian Penal Code are:  

Section 294[1] which enables a provision of offences affecting the public health, safety morals of people amounting to imprisonment for a certain period or fine or both.

Section 354[2] states that any person who assaults or makes use of criminal force on a woman with an intention to outrage her modesty shall be imprisoned for a particular term or fine or both. 

Section 509[3] states that any person who intends to insult the modesty of a woman or makes any such action of the same shall be liable for imprisonment or fine or both.

Vishakha Guidelines

(Facts of the cases have been dealt towards the end)

  1. All the employers in the private sector and the public sector need to be strict measures to prevent sexual harassment. Without any prejudice to the commonality of the obligation, various steps are to be taken which include express prohibition, the rules and regulations of the code and conduct of a public or private sector should mandatorily include the rules and regulations for the prevention of sexual harassment.
  2. When such conduct results to an offence as defined under the Indian Penal Code or any such related law, it is the duty of the employer to initiate actions in accordance with the law followed by a complaint in the respective authority. It should be seen that the employer puts in the entire efforts to implement the required and that his misconducts in the process shall necessitate disciplinary actions against him.
  3. Where it is observed that the sexual harassment has taken place by a third party, it shall be seen that necessary steps are taken to assist and support the victim with respect to actions taken against the alleged offender.

However, it was observed that the laws defined the Visakha Guidelines did not cover women of all the fields and that it was completely based on the protection of women at workplaces and not the men. Moreover, there was no involvement of any Non-Governmental Organisation working for the same cause which could make the employers more uncomfortable in reporting their issues for confidentiality concerns. Due to these reasons, a bill was formulated by the Lok Sabha was later made an act including all the required concerns.

Prevention Of Sexual Harassment Act, 2013

The POSH Act, 2013 was enacted to provide extensive legislation for a safe and secure environment which shall be free from sexual harassment to every woman.

As per the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) act 2013, sexual harassment has been defined as: “any one or more of the following unwelcome acts or behaviour (whether directly or by implication) namely:— (i) physical contact and advances; or(ii) a demand or request for sexual favours; or (iii) making sexually coloured remarks; or (iv) showing pornography; or (v) any other unwelcome physical, verbal or non-verbal conduct of sexual nature

Workplace includes: “(i) any department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit which is established, owned, controlled or wholly or substantially financed by funds provided directly or indirectly by the appropriate Government or the local authority or a Government company or a corporation or a co-operative society; (ii) any private sector organisation or a private venture, undertaking, enterprise, institution, establishment, society, trust, non-governmental organisation, unit or service provider carrying on commercial, professional, vocational, educational, entertainment, industrial, health services or financial activities including production, supply, sale, distribution or service; (iii) hospitals or nursing homes; (iv) any sports institute, stadium, sports complex or competition or games venue, whether residential or not used for training, sports or other activities relating thereto; (v) any place visited by the employee arising out of or during the course of employment including transportation by the employer for undertaking such journey; (vi) a dwelling place or a house.

It has compelled the workplaces to mandatorily frame an internal policy or charter which prohibit sexual harassment offences. This is inter alia drafted by an Internal Committee constituting of an Internal Complaints Committee who in collaboration with the POSH Act, 2013 investigate and work on such complaints. Various amendments in the case laws as mentioned under the POSH Act, 2013 are as follows: The Bombay HC states that workplace many include any area would be vulnerable enough to sexual harassment and that that place shall be connected with her work. The High Court of Delhi clarified that the person being appointed as a member of IC will not only be a lawyer or having a legal background but should be associated with a Non-Profit Organisation or working in such other organisation working on the same cause. Additionally, it was stated that the alleged offender shall be given the right to cross-examine the witness of the victim. It further set out a procedure formulating the proceedings of the IC. It was decided by the Bombay HC that if the IC has made a note of all adequate inquiry then the court shall not intervene in the matter.

Landmark Cases

Visakha v State of Rajasthan and Ors

In the landmark case of Visakha v State of Rajasthan and Ors[4], where Bhanwri Devi was a social activist in one of the villages in Rajasthan. She was working under a social development programme at a rural level attempting to stop child marriage of Ramkaran Gujjar’s one-year-old infant daughter. However, she was unsuccessful in doing so and that her failed attempts led to a revengeful gangrape of 5 people including Ramkaran Gujjar along with his 5 friends in front of her husband. At the Police Station, she was thrown tantrums by the women constables and was asked to leave her lehnga for evidence, later, was asked to cover herself with her blood-stained dhoti of her husband. The Judgement given at the court was that it was an attempt of a revengeful situation which raged the women and NGOs’ to file a petition at the Supreme Court. This immoral and inhuman conduct gave birth to Visakha Guidelines which set forth the norms and guidelines in cases of sexual harassment at the workplace.

Medha Kotwal Lele & Ors v UOI & Ors

Medha Kotwal Lele was the coordinator of a centre working for the documentation and research on women and other women’s rights groups which highlighted a number of sexual harassment cases. In this case, it was observed that despite the prevalent laws that were set forth, women still struggled to have their basic rights at workplaces and that the statutory law was not in place. [5]

R.B.S Chauhan v Reserve Bank of India & Ors

Mr. RBS Chauhan and Ms. Anita Mehta working for the Reserve Bank of India had travelled to Agra for an official tour where they stayed in the same hotel but different rooms. The Petitioner who rang the bell of Ms. Mehta and asked to stay in the room as he wanted to some urgent matter who later refused to leave the room after and said that they could enjoy as both of them were alone. The complainant who had informed the General Manager about the incident which was followed by an enquiry by the Regional Complaint Committee recommending for compulsory retirement.

It was decided that the petition shall not be allowed as it would have a demoralizing effect on the numerous lady employees working at the Bank if the order was not passed so. [6]

The #METOO Movement

The #MeToo movement primarily began to help the survivors from unjust sexual behaviour and encouraged them to come forward. It observed three major dimensions including gender harassment, unwanted sexual attention and sexual coercion. The damning statistics have revealed the degree to which women were subject to sexual harassment at work. Now women are more comfortable in sharing their personal stories and the rate has increased to such that the workplaces might be seeing a backlash effect or a gradual increase in the hostility towards women. It also showed how sexual harassment could be stigmatising to a person’s self-esteem and damaging altogether. It exposed the inefficient working of the Human Resources Department staying quiet about such complaints and not taking any stringent actions on the same.

Conclusion

There is a remarkable change in the landscape of complaints against sexual misconduct at work. Public awareness and social media have put the cause under the microscope and have empowered the women to be vocal about the cause. It has been observed that the existing laws are ineffective and that prevention of sexual harassment is based more with culture and not in the court procedures. The implementation is in such a manner that the procedures are not followed entirely amounting to injustice to the victims. Therefore, it should be seen that the investigations that take place are extensive in nature where there is a proactive approach of the employers. All the parties involved should follow a comprehensive process ensuring fair and accurate justice to the victims.


[1] Indian Penal Code 1860, s 294

[2] Indian Penal Code 1860, s 354

[3] Indian Penal Code 1860, s 509

[4] Vishaka vs. State of Rajasthan and Ors., [1997] AIR  384(SC)

[5] Medha Kotwal Lele v Union of India [2013] 1 SCC 297

[6] R.B.S Chauhan v Reserve Bank of India & Ors[1996] AIR 448(SC)


About the Author: Ishani is a third-year law student at National Law University, Odisha.


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