Sexual Harassment of Women at Workplace
After a long battle of almost 16 years after the verdict of Supreme Court in Vishaka v. State of Rajasthan, in 1997, India finally enacted the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter referred to as the 'Act') for prevention of sexual harassment against women at the workplaces.
Sexual harassment in workplace includes unwelcome verbal, visual or physical conduct of a sexual nature that is severe or pervasive and affects working conditions or creates a hostile work environment. It is a serious factor that renders women’s involvement in works unsafe and affects her right to work with dignity. It endanger the victim’s job, negatively affect her job performance or undermine the victim’s personal dignity. It may manifest itself physically or psychologically. Its milder and subtle forms may imply verbal innuendo, inappropriate affectionate gestures or propositions for dates and sexual favors. However it may also assume blatant and ugly forms like leering, physical grabbing and sexual assault or sexual molestation.
Before, the verdict of Supreme Court in Vishaka v. State of Rajasthan, women experiencing sexual harassment at workplace had to lodge a complaint under Section 354 of the Indian Penal Code that deals with the criminal assault of women to outrage women’s modesty, and Section 509 that punishes an individual or individuals for using a word, gesture or act intended to insult the modesty of a woman.
The entire scenario changed in 1997 with the introduction of Vishaka guidelines. The Supreme Court for the first time recognized, acknowledged and explicitly defined sexual harassment as an – unwelcome sexual gesture or behavior aimed or having a tendency to outrage the modesty of woman directly or indirectly. Defining sexual harassment as an act aimed towards gender based discrimination that affects women’s right to life and livelihood, the Supreme Court developed broad based guidelines for employers. The mandatory guidelines were aimed towards resolution and prevention of sexual harassment. These guidelines brought in their purview all employers in organized and unorganized sectors by holding them responsible for providing safe work environment for women. The Vishaka guidelines apply to all women whether students, working part time or full time, on contract or in voluntary/honorary capacity. The guidelines include acts like Physical contact and advances, Showing pornography, a demand or request for sexual favours. Any other unwelcome physical, verbal/non-verbal – such as whistling, obscene jokes, comments about physical appearances, threats, innuendos, gender based derogatory remarks, etc. It also provided for the formation of a Complaint Committee by the employers, which shall be headed by a woman employee and not less than half of its members would be women. All complaints of sexual harassment by any woman employee would be directed to this committee. The committee would advise the victim on further course of action and recommend to the management the course of action against the person accused of harassment. It also levied an obligation on the employer to make an express prohibition of sexual harassment in any form and make the employees aware of the implications through in house communication system / posters / meetings.
However, despite the guidelines, women continued to be harassed in the workplace because the Vishaka Guidelines were being breached in both substance and spirit by state functionaries who harass women workers via legal and extra legal means, making them suffer and by insulting their dignity. In Medha Kotwal Lele v Union of India, the Court stated that the Vishaka Guidelines had to be implemented in form, substance and spirit in order to help bring gender parity by ensuring women can work with dignity, decency and due respect. It noted that the Vishaka Guidelines require both employers and other responsible persons or institutions to observe them and to help prevent sexual harassment of women. The Court held that a number of states were falling short in this regard.
Recently, the issue of sexual harassment of women at the workplace assumed prominence with serious allegations being made against a former Supreme Court judge, whose court pronounced verdict on huge scams, and the editor of a magazine with truth and exposure as its masthead. In the case of the former, a court-appointed committee found that the complainant’s statement prima facie disclosed an act of unwelcome behaviour of sexual nature, but matters went no further as the judge was found to have demitted office prior to the commission of the alleged offence. The second case has followed the traditional process of criminal law, beginning with investigation and arrest.
On 23rd April 2013, the legislature finally brought into force a comprehensive legislation dealing with the protection of women against sexual harassment at workplace by enacting “The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013. The Act has in fact sought to widen the scope of the guidelines issued by the Supreme Court by bringing within its ambit (amongst other things) a “domestic worker” (Sec 2e) defined to mean a woman who is employed to do the household work in any household for remuneration whether in cash or kind, either directly or through any agency on a temporary, permanent, part time or full time basis, but does not include any member of the family of the employer. The Act has defined “sexual harassment” (Sec. 2n) to include any one or more of the following unwelcome acts or behaviour (whether directly or by implication) namely:
(i) physical contact and advances;
(ii) a demand or request for sexual favours;
(iii) making sexually coloured remarks;
(iv) showing pornography; or
(v) any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
Further, the following may also amount to sexual harassment:
(i) implied or explicit promise of preferential treatment;
(ii) implied or explicit threat of detrimental treatment;
(iii) implied or explicit threat about present or future employment status;
(iv) interference with work or creating an intimidating or offensive or hostile work environment; or
(v) humiliating treatment likely to affect health or safety.
The redress forum under the Act is an Internal Complaints Committee appointed by the employer to be comprised of a woman senior employee, two other employees, and a social worker; it is mandated that at least half the committee must be constituted of women. Where such a committee is not set up by the employer, or where the complaint is against the employer himself, a provision is made for the setting up, by the District Magistrate, of a panel drawn from social workers and NGOs.
Based upon the complaint of the victim, the Committee is to conduct an inquiry and submit its recommendations to the employer (or District Magistrate), who is required to take action on the same.
Where an offence is made out, the punishment for misconduct is as per the service rules of the employer; where no such rules exist, then as per the Rules under the Act. Under the Act, redress ranges from apology, negotiations and to punitive actions like withholding promotion and increments, and stretches to termination. However, this is an area where we have to tread cautiously, and certainly not rush in. Sexual harassment cases usually have a marked power imbalance between the victim and the accused; this is implicit in the nature of the offence. This may well affect the negotiation scenario, with the victim being unable to hold her own, and end with a result advantageous to the other side.
Some acts labelled as harassment are grave violations of a woman’s body and dignity; these ought not to be the subject matter of a compromise. There is need to draw clear markers between negotiation and punitive action and to realise that some offences have the starkness of black and white, without intervening shades of grey. In these cases, there is also the need for co-workers to know the identity and culpability of the transgressor so as to safeguard themselves; such information will remain cloaked in the confidentiality of conciliation agreements. In a wider context, public naming can be a societal need.
The Act, however, came out to be the most significant step towards improving awareness about the obligations of employers and rights of employees in case of workplace sexual harassment. Perhaps this legislation will help the silenced voice of women audible by taking off the feet that coerce women’s necks.
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