Sexual Harassment at workplace: From Vishakha Judgment To Today

INTRODUCTION

The fundamental right under Art 19(1)(g) i.e the Right to carry on any occupation, trade or profession depends on the availability of a “safe” working environment. The right to live means a life with dignity. The primary responsibility for ensuring such safety and dignity through suitable legislation and the creation of a mechanism for its enforcement is of the Legislature and the Executive. The Fundamental rights guaranteed in the constitution have sufficient amplitude to encompass all the facets of gender equality and inequality including the prevention of sexual harassment or abuse. Gender equality includes protection from sexual harassment and the right to work with dignity which is a universally recognized Human Right.

Some provisions under the Constitution in addition to Art 14, Art 19(1)(g) and Art 21 which have relevance are Art 51(1), Art 15(3), Art 42, Art 51A(a) and Art 51(c). Sexual harassment of women at the workplace results in the violation of the fundamental right of Art 14, Art 15 and Art 21 of the victim. Such violation attracts remedy U/A 32 i.e. the right to constitutional remedies, where one can directly file a writ petition.

Indian legislations deal with the status of women and equal opportunity amongst all. Art 14 guarantees equality and that everyone is equal before the law and equal protection of law according to the procedure established by law. Art 15(3) empowers the state to make special provisions for the protection of women. It also lays down the concept of protective discrimination. Art 16(3) guarantees equality of opportunity in every matter of the employment sector.

At workplaces, sexual harassment is the most unwelcoming behavior. It is a crime under the Penal Provision of Indian Penal Code 45 of 1860, where it has been clearly included under the crimes that fall under the category of Sexual Harassment. Some of these include - According to Sec. 354 of IPC, the term outraging the modesty of a woman which harms the dignity of women. Under Sec 509 of IPC, any words, gesture or act intended to insult the modesty of women.

Between 1997-2013, many bills were laid down in the House of Parliament in regard to the protection of women in their workplace and other rights. There were social and legal campaigns and important decisions made against sexual harassment.

The case of Vishakha gave a new life to the way we perceived sexual harassment at the workplace. The petitioner showed a lot of courage and took a stand and fought against a large section of the male egos present.

VISHAKHA VS. STATE OF RAJASTHAN

This writ petition was filed aiming to bring attention towards this societal aberration and to assist in finding suitable measures to curb “Gender Inequality” and to prevent sexual harassment of working women in all places through a judicial process and to fill the vacuum in the existing legislature. Certain social activists and NGOs filed writ petitions in the Hon’ble Supreme Court for the enforcement of Fundamental Rights and safeguarding of working women under articles 14, 19 and 21 of The Constitution of India. In view of the prevailing climate, the violation of these rights was not uncommon. The immediate cause for the filing of the writ petition was an incident of alleged brutal gang rape of a social worker in the village of Rajasthan. The incident reveals the hazards to which a working woman may be exposed and the depravity to which sexual harassment can degenerate and the urgency for safeguards by an alternative mechanism to fulfill this long felt and urgent social need.

ISSUE:

Whether Gender Equality and protection against sexual harassment of working women at the workplace requires guidelines and norms to be treated as law U/A 14 of the Constitution of India?

JUDGEMENT:

The fundamental right U/A 19 i.e Right to carry on any occupation, trade or profession depends on the availability of a “safe” working environment. The right to life means life with dignity. The primary responsibility for ensuring safety and dignity through suitable legislation and the creation of a mechanism for its enforcement is of the Legislature and the Executive. The meaning and content of the Fundamental rights guaranteed in the constitution are sufficient amplitude to encompass all the facets of gender equality including the prevention of sexual harassment or abuse. Gender equality includes protection from sexual harassment and the right to work with dignity which is universally recognized as a basic HUMAN RIGHT. Some provisions in the Constitution in addition to Art 14, Art 19(1)(g) and Art 21 which have relevance are Art 51(1), Art 15(3), Art 42, Art 51A(a) and Art 51(c).

HELD:

Sexual harassment of women at the workplace results in the violation of the fundamental right of art 14, Art 15 and Art 21 of the victim. Such violation attracts remedy u/a 32 right to constitutional remedies, where one can directly file a writ petition regarding the violations suffered by the victims.

GUIDELINES SET:

The court laid down certain guidelines with respect to the definition of human rights in section 2(d) of the Protection of Human rights Act 1993. These guidelines were to be considered law until appropriate legislation was created in accordance with article 141.

1) Duty of the employer or responsibility of the employer in the workplace or other institutions- It shall be the duty of every citizen to provide safeguards to every woman to prevent themselves from being sexually harassed.

2) Disciplinary Actions to be maintained in the institution or workplace-Where such conduct amounts to misconduct in employment as defined by the relevant service rules appropriate disciplinary action should be initiated by the employer in accordance with those rules.

3) Criminal Proceedings-Where such conduct amount to a specific offense under the Indian Penal Code,1860 or any other relevant law shall initiate appropriate action in accordance with law by making a complaint to the concerned authority.

4) Preventive Steps-All the employer belonging to the workplace either public or private should take appropriate steps to prevent sexual harassment.

Awareness-It is necessary to maintain awareness of the Rights of female employees in regards to prevent sexual harassment at the workplace.

Complaints Committee-The The Complaint committee should take up the necessary actions in a manner to respect the dignity and preventing female workers from the workplace.

Workers Initiative-Employees should allow to raise up their voices against such inhumane acts in an appropriate forum.

Accordingly, the Supreme Court directed that the above guidelines should be followed up strictly in the workplace or any other institutions for the prevention and enforcement of the right to gender equality of the working women.

WHAT IS SEXUAL HARASSMENT?

In simple words, sexual harassment is an act of behavior that compromises the physical, mental, and, emotional security of women. It promotes inequality and it is against the law. It may be in the form of written, gesture or verbal and it may happen online as well as offline. Both man and women can be the victim of sexual harassment.

FORMS OF SEXUAL HARASSMENT AT WORKPLACE:

Sexual Harassment has traditionally been divided into two well-known forms: -

• Quid pro Quo;
• Hostile work environment

1. Quid Pro Quo - Applying this to molestation, it means seeking sexual favors or advances in exchange for work benefits like promises of promotion, higher pay, academic advancements, etc. Auch kind of molestation mostly holds a girl to compromise her wishes only refusal to accommodates a request is met with retaliatory action like dismissal, demotion, memos, tarnished work record and difficult work conditions.
2. Hostile work environment- It commonly involves conditions of labor or behavior towards a female worker, which makes it unbearable for her to be there. While the worker is rarely promised or denied anything during this context, unwelcome molestation occurs just because she could be a woman.

WHAT DOES IT INCLUDES?

It includes unwanted behaviors like and not exhaustive to-

• Displaying Rude And Offensive Material By Making Sexual Gestures
• Staring, Leering Touching, Grabbing Or Making Other Physical Contact Without The Consent Of The Victim
• Cracking Sexual Comments To Make Uncomfortable Along With Making Unusual Comments To Have Sexual Meaning
• Asking For Sex Or Sexual Favours
• Insulting With Sexual Comments
• Questioning About Sex Life

How Sexual Harassment Affects The Victim?

• It makes the victims feel stressed, anxious or depressed
• It withdraws from social situations and loses confidence, self-esteem
• It will be less productive and unable to concentrate

INTERNATIONAL CONVENTION ON SEXUAL HARASSMENT

The Supreme Court in Apparel Export Promotion Council v A.K Chopra referred to the Convention on the elimination of all forms of Gender Discrimination Against Women and to promote Gender Equality under the Indian Constitution. In this case, the Supreme Court observed that sexual harassment at the workplace results in the violation of Fundamental Rights to Gender Equality and The Right to live life with human dignity, which are the two precious Fundamental Rights guaranteed under the Constitution of India.

UNITED NATIONS:

General Assembly Resolution 48/104 on the Declaration on the Elimination of Violence Against Women defines violence against women to include sexual harassment, which is prohibited at work, in educational institutions, (Art. 2(b)), and encourages development of penal, civil or other administrative sanctions, still as preventative approaches to eliminate violence against women (Art. 4(d-f)). The Convention on the Elimination of all varieties of Discrimination against Women (CEDAW) directs States Parties to require appropriate measures to eliminate discrimination against women altogether fields, specifically including equality under the law in governance and politics, the workplace, education, healthcare, and in other areas of public and social life. (Arts. 7-16). The Beijing Platform for Action, para. 178, recognizes harassment as a style of violence against women and as a style of discrimination and calls on multiple actors including government, employers, unions, and civil society to confirm that governments enact and enforce laws on harassment which employers develop anti-harassment policies and prevention strategies.

INTERNATIONAL LABOUR ORGANIZATION (ILO):

The ILO Committee of Experts on the applying of Conventions and suggestions has confirmed that harassment may be a style of sex discrimination covered by the Discrimination (Employment and Occupation) Convention (No. 111) of 1958. The ILO’s Indigenous and Tribal Peoples Convention (No. 169) also specifically prohibits harassment within the workplace.

PROTECTION OF WOMEN FROM SEXUAL HARASSMENT ACT, 2013

Express prohibition of sexual harassment as defined in Section 2 (n) - “sexual harassment”(3) includes any one or more of the following unwelcome acts or behavior (whether directly or by implication) namely:—

(i) physical contact and advances; or

(ii) a demand or request for sexual favors; or

(iii) making sexually colored remarks; or

(iv) showing pornography; or

(v) any other unwelcome physical, verbal or non-verbal conduct of sexual nature;

Section 2(o) “workplace” includes—

(i) any department, organization, 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 organization or a private venture, undertaking, enterprise, institution, establishment, society, trust, non-governmental organization, 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 a journey;

(vi) a dwelling place or a house.

INDIAN PENAL CODE

(4)The following sections of the Indian Penal Code can be applied in cases of sexual harassment (which makes it a criminal case):

1. Section 294 of IPC, 1860 Whoever, to the annoyance of others,

(a) does any obscene act in any public place, or

(b) sings, recites and utters any obscene songs, ballads or words, in or near any public space, shall be punished with imprisonment of either description for a term that may extend to three months, or with fine, or with both.

‟ This provision is included in Chapter XVI entitled Of Offences Affecting Public Health, Safety, Convenience and Morals‟ and is cognizable, bailable and triable by any magistrate.

2. Section 354 - Whoever assaults or uses criminal force on any woman, intending to outrage her modesty or knowing it likely that he will thereby outrage her modesty, shall be punished with imprisonment for a term which may extend to two years, or with fine, or with both.

3. Section 509 (Word, gesture or act intended to insult the modesty of a woman) - This is included in Chapter 22 entitled Of Criminal Intimidation, Insult, and Annoyance‟, and is cognizable, bailable and triable by any magistrate. It holds: „Whoever, intending to insult the modesty of a woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture is seen by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both.‟

Under the Indecent Representation of Women (Prohibition) Act (1987) if an individual harasses another with books, photographs, paintings, films, pamphlets, packages, etc. containing the “indecent representation of women”, they are liable for a minimum sentence of 2 years. Section 7 (Offenses by Companies) further holds companies where there has been an “indecent representation of women” (such as the display of pornography) on the premises, guilty of offenses under this act, with a minimum sentence of 2 years.

CONCLUSION

The central and state government are requested to consider adopting suitable measures including stricter legislation to ensure the safety of women. Moreover, now it is necessary to amend the penal provisions as well. There should be stricter punishments awarded to such offenses. Every woman must know of their legal as well as Fundamental Rights and in case of any violation, the concerned authorities must speedily look into the matter. It is also necessary for the companies to ensure the full safety and security of their workers. Every crime begins silently but always remains a dark mark on the victim, and especially in gender-related crimes.

If today the victim remains silent, the next day it may give the offender the confidence to commit a more heinous crime such as “Rape”.(2) It is the primary duty of the worker or employer in the workplace to prevent the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment by taking necessary actions. Instead of demanding knee-jerk solutions from the government, we should demand-

• Gender Sensitization
• Structured education and communication about rape and rape laws in the country.
• Sensitization of police so that victims feel comfortable to report the crime.
• Better investigation so the conviction rate increases.

Secondly, it is very important to improve the education system in India. The root of such crimes often is a result of poor education. Education schemes must be promoted all over India. Educated people will spread awareness but illiterate people will spread rumorous because the Sexual Harassment Of Women At Workplace,2013 alone is not enough to curb the evil i.e. sexual harassment. Further, laws should be amended from time-to-time to stay at pace with the fast-developing society. Such incidents give a fearful drawback to the life of not just the victim but many women. Working in a safe environment is the fundamental right of every woman.

[The author, Upasana Borah is a 4th Year law student at NEF LAW COLLEGE, ASSAM affiliated to Gauhati University]

1. Constitution of India,1950; Indian Penal Code, 1860
2. https://www.scribd.com/document/411847880/Comprehension-Assignment
3. http://legislative.gov.in/sites/default/files/A2013-14.pdf
4. https://www.iitg.ac.in/iitgicc/docs/Vishaka_Guidelines.pdf