Prevention of Sexual Harassment of Women at Workplace: Legal Framework in India

Paper Details 

Paper Code: RP-VBCL-16-2024

Category: Research Paper

Date of Publication: April 20, 2024

Citation:  Dr. Shrinivasa Prasad R., “Prevention of Sexual Harassment of Women at Workplace: Legal Framework in India", 1, AIJVBCL, 255, 255-265 (2024), <https://www.vbcllawreview.com/post/prevention-of-sexual-harassment-of-women-at-workplace-legal-framework-in-india>

Author Details: Dr. Shrinivasa Prasad R., Assistant Professor, Vaikunta Baliga College of Law, Udupi, Karnataka.

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ABSTRACT

The prosperity, advancement and achievements of a civilization can be gauged by the status given to women in society. One of the several factors that justify the greatness of India’s ancient culture is the honorable place granted to women; culturally, as well in the eyes of religion, women always held a place of prominence in ancient Indian society. Over a period of time due to various social and historical reasons and various customs and traditions women in society lost their importance. Some global changes and challenges have occurred more particularly in the last decade. On the one hand the violence against women has been rampant everywhere, at the same time there has been growing consciousness for the protection and promotion of human rights of women, on the other hand. The problem becomes more complex where the violence includes rape, sexual abuse, sexual harassment and intimidation and even goes beyond. The issue before us is how to protect women particularly in this era of sexual abuse/exploitation at work place in particular. The aim of the present article is to assess the historical background of the Sexual Harassment of Women at Work Place (Prevention, Prohibition and Redressal) Act, 2013 and critically evaluate the same.

Key words: Women, Workplace, Sexual Harassment, Protection, CEDAW

HISTORY OF THE CAMPAIGN TO TACKLE SEXUAL HARASSMENT AT THE WORKPLACE

The women’s movements have long struggled against violence in various spheres – the private, the public and at work – from rape and domestic violence to ‘sati’ and sex selective abortion.[1] Since the 1980s, women’s groups have drawn attention to the serious nature of sexual harassment. Dismissed as “light flirtation”[2] or “casual jokes” the very term “eve teasing” was a denial of the debilitating effect of sexual harassment. In addition to the deep impact on the individual psyche of the target of sexual harassment, an unhealthy environment prevails at a workplace where sexual harassment is rampant and condoned.[3]

            The impetus for a legal intervention to tackle sexual harassment came after the gang-rape of Bhanwari Devi.[4] As part of her work of preventing child marriage in her district, she had to visit families and raise awareness about the issue, particularly during the festival of Akha Teej, considered auspicious for weddings. She and her family faced intense harassment, ostracism and social boycott due to her work which angered the local elite. On May 22, 1992 while she and her husband were working on their farm, they were accosted by five upper caste men who beat up her husband and gang-raped her.[5]

CONSTITUTIONAL PROTECTION AND INTERNATIONAL CONVENTIONS

Our Constitution framers believed in fairness and justice for women. They provided, in the Constitution, the nation’s commitment to gender parity and gender equality as also a guarantee against sexual harassment of women. Sexual harassment results in the violation of the fundamental rights of women to equality under Articles 14 and 15 and her right to life and to live with dignity under Article 21 and Right to practice any profession or to carry on any occupation, trade or business[6] which includes a right to a safe environment free from sexual harassment.[7]

The protection against sexual harassment and the right to work with dignity are human rights universally recognized by International Conventions and instruments such as Convention on the Elimination of all Forms of Discrimination against Women, 1979[8] (hereinafter as CEDAW) which has been ratified on the 25th June, 1993 by the Government of India. Vishaka v. State of Rajasthan has been described as “one of the more notable successes of judicial action in redressing violence against women,” and was recognised by the CEDAW Committee as a “landmark judgment [in India’s] tradition of public interest litigation.” The Vishaka judgement filled a void in domestic litigation and upheld women’s constitutional rights by directly applying the provisions of CEDAW to enact guidelines against sexual harassment in the workplace.[9]

India has not had specific legislation dealing with sexual harassment at work place; on account of this ‘vacuum’ in law, the Supreme Court of India, in 1997, delivered its landmark judgment in the case of Vishaka and Ors. v. State of Rajasthan[10]; it observed that, “Gender equality includes protection from sexual harassment and right to work with dignity, which is a universally recognised basic human right. The common minimum requirement of this right has received global acceptance. The international conventions and norms are, therefore, are of great significance in the formulation of the guidelines to achieve this purpose.” Further, the Supreme Court in this case laid down guidelines dealing exhaustively with the definition of ‘sexual harassment.’ The preventive measures required to be taken by an employer and the internal redressal mechanisms required to be put in place. The Supreme Court guidelines in Vishaka case were intended to be applicable to all employers until a statute was enacted for the same. But these guidelines are not implemented satisfactorily. It is stated that the attitude of neglect in establishing effective and comprehensive mechanism in letter and spirit of the Vishaka guidelines by the States as well as the employers in private and public sector has defeated the very objective and purpose of the guidelines.[11]

            The Complaints Committee as envisaged by the Supreme Court in its judgment in Vishaka Case will be deemed to be an inquiry authority for the purposes of Central Civil Services (Conduct) Rules, 1964, and the report of the Complaint Committee shall be deemed to be an inquiry report under the Central Civil Services Rules. Thereafter the disciplinary authority will act on the report in accordance with the rules. The Supreme Court gave directions to comply with Vishaka’s guidelines again in 2006.

            In Seema Lepcha,[12] the Apex Court gave directions to government to give comprehensive publicity to the notifications and orders issued by it in compliance of the guidelines framed in Vishaka Case. In Medha Kotwal Lele v. Union of India[13] case, the affidavit filed by the State Governments and Union Territories show that most of the States have not carried out amendments to Civil Services Conduct Rules and Standing orders. Some of the States have not formed the Complaints Committee as envisaged in the Vishaka guidelines. Some States have constituted only one Complaints Committee for the entire State. For better implementation of Vishaka guidelines  again in this case the Supreme Court, gave directions to State Governments and Union Territories to carry out adequate and appropriate amendments in their respective Civil Service Conduct Rules and Industrial Employment (Standing Orders) Rules, within two months from date of the order, and that every State and Union Territories must constitute adequate Complaints Committees so as to ensure proper implementation of the guidelines and State functionaries and private and public sector undertaking/organizations/ bodies/institutions, etc., should put in place sufficient mechanism to ensure full implementation of the Vishaka guidelines.[14]

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2013 (hereafter POSH Act) passed by the Lok Sabha on 3 September 2012 and in the Rajya Sabha on 26 February 2013. The Bill received the assent of the President on 23 April 2013 and came into force from 9 December 2013. Superseding the Vishaka guidelines issued by the Supreme Court of India in 1997, the Act aims to “provide protection against sexual harassment of women at workplace and for the prevention and redressal of complaints of sexual harassment”.

The POSH Act describes ‘sexual harassment’[15] as any behaviour that includes: (i) physical contact and advances; (ii) a demand or request for sexual favours; or (iii) making sexually coloured remarks; or (iv) showing pornography; or (v) any other unwelcome physical, verbal or non-verbal conduct of sexual nature. The POSH Act also include the following instances in its definition of sexual harassment: (i) implied or explicit promise of preferential treatment in her employment: or (ii) implied or explicit threat of detrimental treatment in her employment; or (iii) implied or explicit threat about her present or future employment status: or (iv) interference with her work or creating an intimidating or offensive or hostile work environment for her; or (v) humiliating treatment likely to affect her health or safety.[16]

POSH Act defines an ‘aggrieved woman’ who is protected under the Act: (a) “aggrieved woman” means- (i) in relation to a workplace, a woman, of any age whether employed or not, who alleges to have been subjected to any act of sexual harassment by the respondent; (ii) in relation to a dwelling place or house, a woman of any age who is employed in such a dwelling place or house.[17] Since each and every act of sexual harassment at the workplace is a form of sex discrimination which in effect denies a woman her fundamental rights guaranteed under the Constitution, it is proposed that any legislation dealing with the said issue should have the widest possible application so as to take within its scope every female member of the national workforce.[18]

The present definition of “workplace”[19] contained in Section 2(o) is of wide amplitude and in that sense is acceptable. In order for a woman to claim protection under the SH Act, the incident of sexual harassment should have taken place at the ‘workplace.’ However, it bears mentioning that a clarification may be inserted in the said definition that the “unorganized sector” is not exempt from the ambit of the legislation. To this end, the legislation must cover agricultural workers and women in the armed forces. The agricultural workers, it was a gross injustice to who are the single largest female component of work force (68%) in the country if excluded; it amounts to injustice. Women in the armed forces must also be covered as there is a high rate of sexual harassment in the armed forces, judging from complaints that have come to Court in the last decade. It must also be remembered that the armed forces are, in any event, heavily male dominated and the chain of command is strong and entrenched. Enquiries are held behind closed doors putting women in the armed forces at a disadvantage to begin with. There is no need to exclude such women from the purview of the Act as no strategic or other interests are affected by protecting them against sexual harassment at the work place. It is necessary to cover every single female member of the national workforce under this section.[20] 

Redressal Mechanism

Section 4 of the Act provides for Internal Complaints Committee (ICCs) that will include one presiding officer - a senior level woman employee, two or more members from amongst the employees (who are committed to cause of women or with experience in social work or have legal knowledge), and one external NGO member committed to the cause of women. 50 per cent of the members of ICC have to be women. According to the Act a workplace requires 10 or more employees in order to create an ICC. For workplaces that have less than 10 employees or the unorganised sector where there are no proper administrative structures in place, Section 6 of the Act provides for Local Complaints Committees (LCC) to look into complaints of sexual harassment. LCCs must have a Chairperson who should be an eminent woman with social work background, one of the member must be a local women nominated from amongst the women working in block, taluka, tehsil or ward or municipality in the district and two members from NGOs committed to the cause of women, one of whom should be a woman.  But there was very little knowledge or awareness about the existence of the LCC at all, leave aside its proper functioning. The LCC was not viewed as a body to which complaints could be taken.[21]

Complaints Procedure

According to the Act, an aggrieved woman who intends to file a complaint is required to submit six copies of the written complaint, along with supporting documents and names and addresses of the witnesses to the IC or LCC, within three months from the date of the incident and in case of a series of incidents, within a period of 3 months from the date of the last incident. In instances where sufficient cause is demonstrated by the complainant for the delay in filing the complaint, the ICC/LCC may extend the timeline for filing the complaint, for reasons to be recorded in-writing. The law also makes provisions for friends, relatives, co-workers, psychologist and psychiatrist, etc. to file the complaint in situations where the aggrieved woman is unable to make the complaint on account of physical incapacity, mental incapacity or death. But the LCCs under the Act have not been properly set up by the local governments, and even if they are, they are practically dysfunctional.

Further, the limitation period under Section 9 of the POSH Act is unreasonable due to the mental trauma and pressure a victim faces involving cases of sexual harassment especially by employers or those with higher social capital. Creating such a bar on complaint mechanism further defeats the object and purpose of the Act. This provision must be removed so that when the victim does wish to speak about any such incident of harassment, it is not rendered impossible by the law.[22]

The emphasis on dealing with complaints and lack of focus on prevention and awareness is another concern. There are no consequences in situations where an employer fails to ‘organise workshops and awareness programmes at regular intervals’ to create awareness and sensitise the employees about the remedies in cases of sexual harassment. Furthermore, ‘regular intervals’ is not qualified further, allowing this provision to be misused.[23]

Conciliation, Interim Relief and Penalties.

The POSH Act also provides conciliation between parties through the efforts of the ICC or LCC on the request of the aggrieved woman. The Act provides for interim relief for the complainant such as transfer and grant of leave up to a period of 3 months. Punishment under the Act includes prescribed punishment under the service rules of the organisation; disciplinary action including written apology, warning, reprimand, censure, withholding of promotion, withholding of pay rise or increments, terminating the respondent from service, undergoing a counselling session, or carrying out community service in case of organisations without service rule, deduction of compensation payable to the aggrieved woman from the wages of the respondent and compensation (based on the i. mental trauma, pain, suffering and emotional distress caused to the aggrieved employee; ii. the loss in career opportunity due to the incident of sexual harassment; iii. medical expenses incurred by the victim for physical/ psychiatric treatment; iv. the income and status of the alleged perpetrator; and v. feasibility of such payment in lump sum or in installments) the failure to pay IC may forward the order for recovery of the sum as an arrear of land revenue to the concerned District Officer. But the provision for conciliation might contribute to a situation where sexual harassment is not brought before a competent forum. When women are not aware of the remedies available to them to redress complaints of sexual harassment, under Section 10 the matter can further be kept under wraps and “settled”. Further, there is no time period in which the settlement is reached neither there lies an appeal against such conciliation under Section 10, for cases in which a woman is forced to compromise and decides later to take action.[24]

CONCLUSION

Women’s experiences of sexual harassment at the workplace are part of a spectrum of harassment and insecurity while earning their livelihoods. In order to work towards workplaces free of sexual harassment, precarious and insecure conditions of work must be addressed, as they create an environment for sexual harassment to thrive and go unaddressed. In terms of effective implementation of the POSH Act, it must first be strengthened to include diverse workplaces and patterns of work. It is crucial to bring private homes and public places under the same set of laws and regulations that are expected from a formal work environment. In the context of sexual harassment at workplace a redressal mechanism will only be effective if it works on the following levels:

·         Advocate for the rights of women to public spaces and safety and security on streets, market-places, and affordable public transport.

·         Strengthen urban infrastructure to ensure safety, health and hygiene for women workers in the informal sector like street-lights, toilets, drinking water outlets and covered sheds.

·         Work with local urban bodies such as Ward Committees and Councils as well as Resident Welfare Associations to raise awareness and intervene in cases of sexual harassment at the workplace and encourage community engagement in prevention and awareness.

·         Create state capacity to respond to instances of sexual harassment effectively, by providing adequate training and filling existing knowledge and attitude gaps of key departments like the police, labour departments and other authorities.

·         Build trust and credibility in the redressal mechanism by making it accessible for women workers.

[1] Every Day Resistance, published by The Alternative Law Forum, in 2020, available at https://altlawforum.org/wp-content/uploads/2021/09/Everyday-Resistance_Web.pdf, visited on 10-03-2024.

[2] flirting would be considered Sexual Harassment if it makes the woman uncomfortable, i.e., if the woman perceives it as an unwelcome behaviour.

[3] Saheli newsletter September, 1997. Available at https://sites.google.com/site/ saheliorgsite/violence/sexual-harrassment/sexual-harassment-at-the-workplace, visited on 30-09-2019.

[4] A village level worker (sathin) in a government women’s development project in Bhateri village of Rajasthan in 1992.

[5] Bhanwari, like most women in rural areas, faced many impediments while trying to report the rape and have a medical examination conducted, thus leading to poor quality of physical and forensic evidence to establish rape. The rape case still drags on in appeal after the main accused were acquitted by the district court in 1995, which observed that the rapists were middle-aged and respectable persons of a higher caste who could not have raped a lower caste woman.

[6] Article 19(1)(g) of the Constitution of India.

[7] Vishaka and Ors. v. State of Rajasthan,  AIR 1997 SC 3011

[8] On 18 December 1979, the Convention on the Elimination of All Forms of Discrimination against Women was adopted by the United Nations General Assembly. It entered into force as an international treaty on 3 September 1981 after the twentieth country had ratified it. By the tenth anniversary of the Convention in 1989, almost one hundred nations have agreed to be bound by its provisions. For more information visit https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-elimination-all-forms-discrimination-against-women

[9] Supra note 1.

[10] Ibid.

[11] Supra note 1.

[12] Seema Lepcha v. State of Sikkim & Ors.SLA (Civil) No.34153/2010 decided on 3-2-2012

[13] AIR 2013 SC 93.

[14] Ibid.

[15] Section 2(n)

[16] Supra note 1.

[17] Section 2(a)

[18] Supra note 1.

[19] ''workplace'' includes—(i) any department, organisation, 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 organisation or a private venture, undertaking, enterprise, institution, establishment, society, trust, non-governmental organisation, unit or service provider carrying on commercial, professional, vocational, educational, entertainmental, 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 provided by the employer for undertaking such journey; (vi) a dwelling place or a house.

[20] Ayesha Kidwai, Mourya Anubhuti, ‘Sexual Harassment at work Place: Extending the Debate’. Available at www.indiareal.com, visited on 23-02-2019.

[21] Supra note 1.

[22] Ibid.

[23] Ibid.

[24] Ibid.