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Published : December 25, 2010 | Author : pradnya
Category : Woman Issues | Total Views : 15290 | Rating :

Pradnya Pahurkar Law professor

 Protection Against Sexual Harassment Of Women In India --- A Human Right Perspective

Domination is one of the greatest causes leading to sexual harassment to the women’s in the society even today. Even though in the ancient history the scholars, grammarians, saints like Gurunanak and many more and scriptures like Rig-Veda stated that the women’s should have equal status with men, but these readings and thoughts were never followed which led to degrading the women’s status in the society. The best example is the medieval period which helped to change the whole status and scenario of the women in a negative way, where all the cruel customs were introduced like sati, child marriage, devdasis’s etc.

The most shameful thing is that even after good legislations these customs are followed by the people in many parts of India. There are many crimes against women’s but the most heinous crimes against women’s is sexual harassment.

Sexual Harassment is a social stigma which has increased in number. The sexual harassment is not only includes rape or physical harassment of women but also:

· unwelcome sexual gesture or behaviour whether directly or indirectly as sexually coloured remarks; physical contact and advances; showing pornography; a demand or request for sexual favours; any other unwelcome physical, verbal/non-verbal conduct being sexual in nature.

Many instances showed the practice of sexual harassment of the women. Sexual Harassment not only hurts the physical body but also rips off the soul of women. As it has been rightly observed by the Justice Arjit Pasayat: “While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of helpless women.”

Sexual harassment is a stigma on the society; which not only hurts the women but also takes away her dignity. Not only this, disclosure of this in the society led to another trauma to the victim:
· Due to the non acceptance in the society
· Keeping her apart form all the social activities
· Looking with suspicious eyes
· Defamation in the society.
· Fear of the society, fear of defamation of the family in the society.

Due to the above reasons many sexual harassment cases goes unreported as they ruin the dignity of the women completely and she cannot live a peaceful dignified life in the society. The silence gives the strength to such criminals which are the greatest human rights violator. Here the fear of the society plays the greatest player who rips off the victim’s right.

In many instances where women have reported such illegal and unwelcome behavior; there have been significant victories in the past decade or so. Also considering the fact the sometimes these victories are achieved after a wait of a decade or so.

Vishakha v/s State of Rajasthan and others[1], for the first time sexual harassment had been explicitly- legally defined as an unwelcome sexual gesture or behavior whether directly or indirectly. It was in this landmark case that the sexual harassment was identified as a separate illegal behavior. The critical factor in sexual harassment is the unwelcome ness of the behavior. Thereby making the impact of such actions on the recipient more relevant rather than intent of the perpetrator- which is to be considered.

In Rupan Deol Bajaj vs. K PS.Gill[2], a senior IAS officer, Rupan Bajaj was slapped on the posterior by the then Chief of Police, Punjab- Mr. K P S.Gill at a dinner party in July 1988. Rupan Bajaj filed a suit against him, despite the public opinion that she was blowing it out of proportion, along with the attempts by all the senior officials of the state to suppress the matter. The Supreme Court in January, 1998 fined Mr.K P S.Gill Rs.2.5 lacs in lieu of three months rigorous imprisonment under Sections. 294 and 509 of the Indian Penal Code.

In N Radhabai vs. D. Ramchandran[3], when Radhabai, Secretary to D Ramchandran, the then social minister for state protested against his abuse of girls in the welfare institutions, he attempted to molest her, which was followed by her dismissal. The Supreme Court in 1995 passed the judgment in her favor, with back pay and perks from the date of dismissal.

Priyadarshini Mattoo[4] was a 25 year old law student who was found raped and murdered at her house in New Delhi on January 23, 1996. On October 17, 2006, the Delhi High Court found Santosh Kumar Singh guilty on both counts of rape and murder and on October 30 of the same year sentenced him to death. On October 6, 2010, the Supreme Court of India commuted the death sentence to life imprisonment. The High Court decision was widely perceived in India as a landmark reversal and a measure of the force of media pressure in a democratic setup.

Prevention And Solution:
According to India's Constitution, sexual harassment infringes the fundamental right of a woman to gender equality under Article 14 of the Constitution of India and her right to life and live with dignity under Article 21 of the Constitution. Although there is no specific law against sexual harassment at workplace in India but many provisions in other legislations protect against sexual harassment, such as

Section 294: Obscene acts and songs, to the annoyance of others like: Does any obscene act in any public place or sings, recites or utters any obscene song, ballad or words in or near any public place. Punishment imprisonment for a term up to 3 months or fine, or both. (Cognizable, bailable and triable offense).

Section 354: Assault or use of criminal force on a woman with intent to outrage her modesty. 2 years imprisonment or fine, or both

Section 376: Rape. Imprisonment for life or 10 years and fine.

Section 510: Uttering any word or making any gesture intended to insult the modesty of a woman. Imprisonment for 1 year, or fine, or both. (Cognizable and bailable offense)

Indecent Representation of the Women (Prohibition) Act, 1987: Although it is not known to have been used in cases of sexual harassment, the provisions of this act have the potential to be used in two ways: If an individual harasses another with books, photographs, paintings, films, pamphlets, packages, etc., containing ‘indecent representation of women’; they are liable for a minimum sentence of 2 years
A ‘hostile working environment’ type of argument can be made under this act. Section 7 (Offences by Companies) - holds companies where there has been ‘indecent representation of women’ (such as the display of pornography) on the premises guilty of offenses under this act. Minimum sentence of 2 years.
Civil suit can be filed for damages under tort laws. That is the basis for filing the case would be mental anguish, physical harassment, loss of income and employment caused by the sexual harassment.

As Stated By The Supreme Court, These Guidelines Are Applicable To:
The employer or other responsible persons or other institutions to prevent sexual harassment and to provide procedures for the resolution of complaints,
Women who either draw a regular salary, receive an honorarium, or work in a voluntary capacity- in the government, private or organized sector come under the purview of these guidelines.

Preventive Steps:
1. Express prohibition of sexual harassment should be notified and circulated.
2. Inclusion of prohibition of sexual harassment in the rules and regulations of government and public sector.
3. Inclusion of prohibition of sexual harassment in the standing orders under the Industrial Employment (Standing Orders) Act, 1946 by the private employers.
4. Provision should be made for appropriate work conditions for women.

Procedure pertaining to filing of complaints:
1. Employers must provide a Complaints Committee which is to be headed by a woman; of which half members should be women.
2. Complaints Committee should also include an NGO or other organization- which is familiar with sexual harassment.
3. Complaints procedure should be time bound.
4. Confidentiality of the complaints procedure has to be maintained.
5. Complainant or witnesses should not be victimized or discriminated against- while dealing with complaints.
6. The Committee should make an annual report to the concerned Government department and also inform of the action (if any) taken so far by them.

Miscellaneous Provisions:
· Guidelines should be prominently notified to create awareness as regards the rights of the female employees.
· The employers should assist the persons affected, in cases of sexual harassment by outsiders or third parties.
· Sexual harassment should be discussed at worker’s meetings, employer-employee meetings and at other appropriate forums.
· Both Central and State governments are required to adopt measures including legislations to insure that private employers also observe these guidelines.

Bill To Prevent Sexual Harassment:
The draft Bill has a provision that in case a woman is not satisfied with the conclusion of the committee; she may go to the District Magistrate or appeal to the court.

The Bill added the new clause that every workplace whether organized or unorganized should have forum to take up such complaints. Another new clause that was added was which defines aggrieved women, thereby bringing students, research scholars, patients and women in the “unorganized sector” within the ambit of the proposed law.

For the unorganized sector, the complaints will be tackled by the District Collector. Unorganized sector -- workplace owned by an individual or a group having less than 10 employees. The proposed law provides for a mandatory district-level local complaint committee to investigate sexual harassment complaints, especially registered by women working in the unorganized sector like domestic helps, laborers.

In case of organized sector there will have to be “internal complaint committees”, absence which would bring penalty which also includes deregistration of the institutions or a fine of Rs 50,000 for the first-time offence. The district officer will be made liable to see that all organized sector have such committees. For the second offence: twice the punishment of the earlier.

Sexual Harassment of women is violation of the women’s right. Only few complaint but many of them remain silent due to the fear of the society. In this case not only society violates but by remaining silent the victim herself violates her right. Even though there are many legislations which helps to prevent such harassment of the women but still they are increasing in number specially in the work place and with female child, thus to prevent the crime it is very important to change the thinking pattern of the society by treating and giving the women’s and men’s at a equal status.

In order to protect women’s from such crime it is very important to introduce various programmes in order to protect themselves from such sexual harassment in the employment places, in schools, in colleges, in any place by any person known, or stranger, to introduce human rights in the syllabus, and to spread the awareness of human rights amongst the people, to give teachings of loving kindness, equality and humanity.

Law and Social Transformation – Malik and Rawal.
[1] (AIR 1997 SC 3011)
[2] 1998 S.C
[3] 1995 S.C
[4] (July 23, 1970 - January 23, 1996)

Authors contact info - articles The  author can be reached at: pradnya@legalserviceindia.com

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