Realities of Protection of Women from Sexual Harassment at Workplaces

-Malaika Kadam

ABSTRACT

The issue of sexual harassment of women has been pertaining in society since time immemorial. To protect women from evil eyes and thoughts, certain steps were taken by the people of that time, which eventually had women shut behind the doors of her home. As society modernized, women were finally able to get out of the four walls and turn their dreams into reality. However, it took the face of a nightmare in a flash as the very reason why they were shut inside for centuries, began following their every step and even stretched to their workplaces. With having the mindset that women are inferior, they were denied the success and opportunities they deserved but were offered the same in exchange for sexual advances. History repeated itself and being back on square one, measures were taken to protect working women, and hence, firstly the Vishaka guidelines were formulated, and eventually, the Sexual Harassment Act was passed. Nevertheless, in the present scenario, the Act is unable to put a check on the misdemeanor of people at workplaces. The number of such cases is increasing every year at an alarming rate. It is crucial to increase the efficiency of the measures taken, to prevent women from resorting to the ancient measures and shut behind the doors all over again.

KEYWORDS

Sexual harassment at workplace, Vishaka guidelines, POSH Act, shortcomings, work from home, increase efficiency.

INTRODUCTION

Women’s protection and upliftment have always been a matter of concern for society and have had their place in the manifesto of every political leader. Numerous efforts have also been made to accomplish it. Sincere endeavors have been made by society to provide equal status and opportunities to women to have them get out of their houses and manifest their caliber, and consequently, we have found them exceptionally successful in every field.

However, when a woman enters her workplace with the intent of proving herself to the world, she meets with the apprehension of harassment from her superiors, and with the attempts made to make her realize her position in this patriarchal society. She wants to raise her voice against it but restricts herself as she doesn’t want to risk the opportunity she has gotten after years of proving her worth. There is no single sector of society where women have not faced sexual harassment at their workplaces. Earlier, the aggrieved had nowhere to go, no superior to complain, as complaining would either have had her fired, blamed, or called out for making a mountain of a mole-hill. The film industry, which is one of the most open-minded and modern sectors of the economy, also had witnessed an umpteenth number of such cases, which were finally revealed, as a result of the #metoo movement, years after the incidents occurred.

THE VISHAKA GUIDELINES

Fortunately, the Vishaka case[1] made significant improvements in the condition of women at their workplaces. In this case, the Supreme Court for the first time laid guidelines, popularly known as the Vishaka guidelines, by drawing upon an international human rights law instrument, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), to be followed by every organization mandatorily in such matters. The Court also stated that such events are a violation of rights enumerated under Articles 14, 15, and 21 and hence, are violative of rights of gender equality and the right of life and liberty.

POST-VISHAKA CASE SCENARIO

Since there was no legislation governing such matters, only the Vishaka guidelines were relied upon. In the case, Apparel Export Promotion Council V. A.K.Chopra[2], the Supreme Court widened the meaning of sexual harassment and stated that only physical contact is not everything that amounts to sexual harassment. The Supreme Court further explained, “Sexual Harassment is a form of sex discrimination including sexual advances, demanding or request for such, other verbal or physical conduct with sexual overtones, be it directly or through implementation. And when the victim submits or rejects to such a request or demand, affects her employment, interrupts in her work ways, performances and participation and creates an unethical and immoral surrounding for her.”

In another case, it was observed by the Supreme Court that, “the implementation of Vishaka Guidelines has to be not in form but also in substance and spirit so as to make available safe environment for women at workplace in all aspects and thus enabling every woman who works, to work with dignity, decency, and due respect.”[3] The Supreme Court was not satisfied with the way the guidelines were being implemented and hence ordered the state government to lay down means for proper implementation of these and also confirmed that the victim may approach the respective high court in any such matter.

The Vishaka guidelines were not absolute and therefore, were unable to provide the needed protection to women. There was a need for legislation and the shortcomings of the guidelines had to be removed. Subsequently, the Sexual Harassment Act, 2013, was enacted.

THE SEXUAL HARASSMENT ACT, 2013

Ultimately, the Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act or the POSH Act was passed in 2013, 15 years after the Vishaka case, with the object of protection of women, prevention, and redressal of sexual harassment at workplaces. The Act stated that sexual harassment includes any of the following unwelcome acts or behavior:

  • Physical contact and advances; or
  • A demand or request for sexual favors; or
  • Making sexually colored remarks; or
  • Showing pornography; or
  • Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

This Act made the employer responsible for ensuring safe working environments for women and mandated the constitution of an Internal Committee for hearing and redressing any complaints of sexual harassment in such places, provided that there are more than 10 employees in the organization. Along with this, the constitution of a Local Committee was also made compulsory in every District for hearing and redressing complaints from workplaces that may have fewer than 10 employees or when the complaint is against the employer of a workplace and for the complaints from the unorganized sector as well.

Another initiative was taken by the government and The Ministry of Women and Child Development developed an online complaint management system titled Sexual Harassment electronic-Box (SHe-Box) for registering complaints related to sexual harassment against women at workplaces, including government and private employees.

THE PRESENT SCENARIO

It has been 24 years since the judgment of the Vishaka case and 8 years since the passing of the Sexual Harassment law, but we still can’t assert that we have finally created safe workplaces for women and the apprehension amongst them has ceased to exist.

More than 95% of women work in the informal sector where the redressal available to them is either the Local Complaint Committee (LCC) or the SHe-Box. However, the percentage of women who have access to the internet varies from state to state and is significantly low in certain places such as Bihar, where only 21% of women have used the internet, and by various Right to Information requests made by Martha Farrell Foundation, in 2016 and 2017, it was found that the district complaints committees are not functioning effectively. This signifies that only those who work in the formal sector have genuine access to the means of redressal. In certain cases, even the women working in the formal sector are unable to comprehend the complex institutional processes of filing a complaint.

The NCRB began collecting data regarding such instances in 2014 under section 509 of IPC. In 2014, the number of cases recorded was 57 and in 2018, the number rose to 965. However, the government doesn’t maintain any centralized yearly data in such matters nor there is any government body that looks into the compliance of the law by companies and district committees. Also, as found by research, around 31 percent of the companies surveyed were not compliant with the law, while around 65 percent of 655 districts did not respond to requests to provide data on the functioning of the LCCs.

The POSH Act has clearly defined the definition of workplace and employee and therefore, making virtual offices and employees working remotely fall under its ambit. In 2020, the nationwide lockdown led to everybody working from home. This may have given women a thought that they will have a break from the fear as there will be no physical interaction with their colleagues. Unfortunately, this was also unable to put a stop to the impropriety. Unjustified video calls at odd hours, colleagues dressed inappropriately, made to feel guilty for having any household responsibility, and being talked down during video conferences because their surroundings were not to the superior’s liking are some of the ways by which women working from home were being troubled. There has been an instance where the superior asked his employee to come online late at night for an urgent matter, which turned out to be such a thing that could have been done over an email on a regular day. The number of complaints received by the National Commission for Women (NCW) has been low during the lockdown as instead of filing complaints, women are just seeking advice as to what can be done in such matters. The reason behind this tolerance in the current times is that women are concerned about their job security and hence, are in the dilemma of whether should they speak up against it or not. Moreover, these subtle ways compel women to reconsider if it was ill-treatment at all, as it is difficult to define body language as inappropriate.

CONCLUSION

Despite taking numerous steps, the government has been unable to ensure a safe workplace for women. In 2022, it will be 25 years since the Vishaka case, and unfortunately, the only change that will be attained will, yet again, be the increase in the number of cases of sexual harassment of women. The government, without collecting any data regarding this, asserts that the Act is fulfilling its object, however, the NCRB reports portray a contradictory picture. A government body for maintaining data, an efficient complaint system, and spreading awareness amongst women of the rights and remedies available to them is a must to achieve the women’s dream workplace. Furthermore, the government is needed to play a monitoring role and keep a scrupulous eye on the functioning of the Internal Committees, Local Complaints Committee and the district officials, and therefore, compel such officials to ensure, in the organized and unorganized sector, prevention, prohibition, and redressal against sexual harassment, just as the name of the Act suggests and aims.

References

·       Anoo Bhuyan and Shreya Khaitan, 8 years on, poor compliance with sexual harassment law at workplace,  India Spend (Feb 23, 2021) https://wap.business-standard.com/article/current-affairs/8-years-on-poor-compliance-with-sexual-harassment-law-at-workplace-121022300195_1.html

·       Lockdown: Working women complain of ‘online’ sexual harassment, say experts, HR World (Jun 2, 2020) https://hr.economictimes.indiatimes.com/news/trends/employee-experience/lockdown-working-women-complain-of-online-sexual-harassment-say-experts/76146550


[1] (1997) 6 SCC 241

[2] (1999) 3 S.C. 625(INDIA)

[3] B. Medha Kotwal Lele & Others V. UOI & others(2012) I.N.S.C. 643(INDIA).

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