Author – Priya Kumari
Life of women are changing with a rapid pace. From sole work of managing household chores to working as an independent person and fulfilling all their dreams – their journey is full of struggles. But, it is all due to these struggles that women are today considered equal to men. Time changed, status changed but environment of working for women is till now not changes to satisfactory extent. Harassment of women at workplace is one of the major deterrent in the success of women. Paying attention to this issue, various guidelines were provided by the court to ensure prevention of harassment at workplace. However, effective implementation of these guidelines is missing. This article deals with the concept of workplace harassment, how it is affecting women, presence in different sectors, steps taken by government and judiciary to solve this problem, etc.
Keywords: Workplace, harassment, women, Vishakha guidelines, POSH Act
“Freedom cannot be achieved unless women have been emancipated from all forms of oppression… Our endeavors must be about the liberation of the woman, the emancipation of the man and the liberty of the child.” – Nelson Mandela
In a patriarchal country like India, women have to face various problems to stand the same stage with a man. Her life is supposed to be limited to only kitchen of the house. It is not easy for them to move forward in their career going against these believes and achieve their goals. However, even after they got their dream job, they have to suffer a lot and the main reason behind it is workplace environment. Men use their power of higher position to harass the female employees working under them sexually. This affect women employees both physically and mentally. Many women do not raise voice against these incidents because of loss of job or fear of not getting promotion or social image. Not only women employees, female interns are also becoming victims of such incidents.
What is sexual harassment?:
In a layman’s language, sexual harassment basically means an unwelcomed sexual conduct which is of physical or verbal nature. The Supreme Court of India defined Sexual Harassment in the case of Vishaka v. State of Rajasthan as follows:
“Sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as:
(a) physical contact and advances;
(b) a demand or request for sexual favours;
(c) sexually-coloured remarks;
(d) showing pornography;
(e) any other unwelcome physical, verbal or non-verbal conduct of sexual nature.”
Constitution of India and the sexual harassment:
Article 14 and Article 15 of the Indian Constitution guarantee equality before law and non-discrimination on the basis of sex. Article 15(3) of the Indian Constitution empowers the states to make special laws for recognition of women as a class. Article 16 prevents discrimination in the employment on the basis of sex and provide equal employment opportunities to all citizens. Article 39(a) and Article 39(d) provides equal and adequate means of livelihood to both men and women and equal pay for work respectively. Article 42 says, “The State shall make provision for securing just and humane conditions of work and for maternity relief”. Article 51 says that it is the duty of every citizen of India to renounce practices which are derogatory to the dignity of women. Art.19 (1)(g) guarantees every citizen the right to practice any profession. Article 21 ensures the fundamental right of life with dignity.
Sexual harassment case laws in India:
In 1999, in this case, it was observed by the Supreme Court that sexual harassment is a form of gender discrimination against women. It violates gender equality and right to life and liberty. In addition, it was stated that even the attempt of molestation by a superior is enough to constitute charges of sexual harassment.
In this case, the harassment of a woman officer of the Pondicherry Administration, Radhabai, was done. She was the Secretary to D Ramachandran, the then Social Minister for State and he attempted to molest her when she protested against his abuse of girls in the welfare institutions. Later, she was also dismissed. She fought the case for a long tenure of 17 years and ultimately the Supreme Court in its judgment upheld her contention. Also, the apex court awarded her compensation of Rs. 3 lakhs for the loss of reputation and honour as well as for the agony she had to suffer in this long battle.
In this case, Mrs. Rupan Deol Bajaj, an I.A.S officer, Punjab Cadre filed a complaint against the highest ranking police officer Mr. K.P.S Gill for molestation. The case went on for 17 years and then in 2005, the Supreme Court gave the verdict stating that the act of slapping on the posterior of a woman amounted to outrage her modesty. The term modesty was given wide interpretation in this case.
This was a landmark case in which it was held by the Supreme Court that sexual harassment violates fundamental rights of women provided under articles 14, 19 and 21 of the Indian Constitution. In this case, for the first time, sexual harassment was identified as a separate category of legally prohibited behaviour. Also, some guidelines were given by the Court and it was said that all workplaces have to follow them till the time any legislation on this matter does not came. The guidelines are as follows:
- Employer and other responsible person in workplaces and other institutions possess a duty to make sure that no act of sexual harassment takes place at the workplace. Also, they have to provide proper procedures for the resolution, settlement or prosecution of such acts by taking all the necessary steps.
- For the prevention of sexual harassment, some steps should be followed by all employers or persons in charge of workplace in both the public and the private sectors. These steps are as follows:
- Use appropriate ways to notify, publish and circulate the statement of prohibition of sexual harassment at workplace.
- The rules or regulations related to conduct and discipline provided by the government and public sector bodies should include rules or regulations prohibiting sexual harassment. Along with this, appropriate penalties should also be mentioned against the person who do not adhere to the rules.
- Where the conduct of sexual harassment is treated as a specific offence under the Indian Penal Code (IPC) or any other law, it is the duty of the employer to initiate appropriate action in accordance with that law. He or she must make a complaint to the appropriate authority.
Particularly, they must make sure that the victims or witnesses do not face any discrimination while dealing with complaints of sexual harassment. Along with this, they must not be victimized. The victims of sexual harassment at workplace should be given the choice regarding the transfer of the perpetrator or their own.
- An appropriate complaint mechanism should be set up in every organisation which deals with the question that a particular conduct constitutes an offence under law or a breach of the service rules or not. The duty of this complaint mechanism is to redress of the complaint made by the victim. Also, they must ensure time-bound treatment of complaints.
- It is expected from the complaint mechanism discussed above that wherever required, it should provide a Complaints Committee and a special counsellor or other support service. Also, maintaining confidentiality is needed.
The head of the Complaints Committee should be a woman. Half of the members of this Complaints Committee should be women. Along with this, in order to prevent the possibility of any undue pressure or influence from senior levels, involvement of a third party in the Complaints Committee should be done. The third party can be either an NGO or any other body who is familiar with the issue of sexual harassment.
An annual report must be submitted by the Complaints Committee to the Government Department. The report should consist the record of all the complaints and action taken by the Complaints Committee.
- People should be made aware of the rights of female employees against sexual harassment by prominently notifying the guidelines in an appropriate manner.
- Suitable measures should be adopted by the Central and State Governments to make sure that the guidelines which are laid down by this order are observed by the employers in private sector also.
In this case, the judges stated that the guidelines given in Vishaka case should not remain symbolic. This case helped to implement the guidelines given in Vishaka case successfully by issuing notices to all the States and the Union Territories to impart the necessary steps.
Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013:
After the Vishaka guidelines, there was immense need of a legislation which deals with the problem of sexual harassment. Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 came as solution of this problem. It is also known as POSH Act. It became effective from December 9, 2013. It defines sexual harassment as a crime and includes complaint mechanism. As per this Act, an Internal Committee (IC) must be constituted within every establishment that has 10 or more workers. The work of this committee is to examine and investigate matters within the workplace. Also, this Act compels that every district must have a Local Committee (LC) which has to deal with complaints in establishments with less than ten workers or against employers individually. Along with these, various other provisions are mentioned in this Act which protect women from sexual harassment at workplace. It is applicable to all workplaces in India.
Safe and secure working environment is right of every person whether it is male or female. However, male consider themselves dominant and sexual harassment of women at workplace is result of it. It violates the fundamental rights of women. The apex court in various judgements, specially in the Vishakha case gave guidelines to prevent sexual harassment at workplace. After these guidelines, POSH Act came into force and it defined sexual harassment as a crime. However, it has not proved to be as effective in coping with the problem of sexual harassment as it was thought. Sexual harassment at workplace is still prevalent in our society and that too in a huge number. The need of an hour is to bridge the gap between policy formation and policy implementation.