This article was written by Astha Sehgal, a student of Amity Law School, Noida.
“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
It is not just the 21st century or the 90’s but it is since the 80’s, sexual harassment has been a subject of central concern. Women are the most vulnerable section of the society who are always considered weak, portrayed as a sexual object and are forced to feel suppressed as a result of which they easily fall prey or become a victim of harassment by the society both verbally and physically.
WHAT IS SEXUAL HARASSMENT AT WORKPLACE?
In general sense the term sexual harassment means any unwelcome sexual support and other verbal or physical contact of a sexual nature that has a tendency to make the environment of the workplace hostile OR offensive”
As defined in the Supreme Court guidelines (Vishakha vs State of Rajasthan, August 1997), sexual harassment includes such unwelcome sexually determined behavior as
- PHYSICAL CONTACT AND ADVANCES
- DEMAND OR REQUEST FOR SEXUAL BEHAVIORS
- SEXUALLY COLORED REMARKS
- SHOWING PORNOGRAPHY
- ANY PHYSICAL, VERBAL AND NON VERBAL CONDUCT OF SEXUAL NATURE
SEXUAL HARASSMENT DEFINED UNDER DIFFERENT LAW :
1) Indian Penal Code of 1860 and Criminal Law (Amendment) Act, 2013
Section 354 of IPC states that in case of assault or criminal force committed with the deliberate intention to outrage the modesty of women, the accused shall be penalized for a term not less than 1 year extending up to 5 years along with fine.
Section 509 punishes any word, act, or gesture intended to insult the modesty of women providing for simple imprisonment for a term extending up to 3 years along with fine.
The Introduction of new sections such as 354A, 354B, 354C and 354D by Criminal Law (Amendment) Act, 2013 specifically deals with sexual harassment, disrobe, voyeurism and stalking in relation to Sexual harassment at workplace.
Sections 375, S.376, 376A, S.376D, 326A & 362B deals with an act of physical and sexual assault with a punishment of one year along with fine extending to death sentence under the Act.
2) Equal Remuneration Act, 1976-
The Act advocates non-discrimination on the basis of gender in matters related to fixing wages and determining transfers, training and promotion, guaranteeing equal remuneration for men and women for a work of similar nature.
3) The Industrial Disputes Act, 1947:
A worker can approach the labor tribunal if the wrongful dismissal is a consequence of non-compliance with sexual demands of the employer. The statute also defines the term ‘unfair labor practices’, which can be interpreted to bring in sexual harassment.
5) The Industrial Employment (Standing Orders) Act, 1946:
The Act creates a mandatory obligation on the employers to define and intimate the working conditions of employees. Substantive law of the Standing Orders classify acts of sexual harassment amounting to misconduct which might result in suspension or dismissal.
6) The Indecent Representation of Women (Prohibition) Act, 1986:
Harassment by an individual through books, photographs, paintings, films, pamphlets, or packages, etc. that contain any indecent representation of women is punishable by a minimum sentence of two years. Under Section 7 of the Act, companies come within the realm of this law and therefore, a sentence of two years can be imposed on accused.
7) The Factories Act, 1948:
Section 19 of the Act provides for separate toilet and washing room for men and women. Also, every employer employing more than thirty female workers is under an obligation under Section 48(1) to provide a crèche for the use of their children below six year of age.
Section 66 restricts women to work in any factory except between 6 A.M. and 7 P.M. and under no circumstances would she be authorized to work between 10 P.M. and 5 A.M. while under Section 56, no woman shall be required to work in a factory for more than 9 hours a day.
8) Maternity Benefit Act, 1961 :
This act facilitates women to meet the challenges of motherhood by safeguarding her from unemployment and preventing her from doing any work which adversely affects her and the unborn child’s health in order to ensure security, safety and favorable environment in workplace for women.
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“Sexual Harassment Act”)
HISTORY: Since the early 80’s sexual harassment at workplace has remained a main issue in India. Since then many laws were enacted and various rules and regulations were made for the protection of women from being sexually harassed at workplace.
The most controversial and brutal gang rape at the workplace involved a Rajasthan state government employee who tried to prevent child marriage as part of her duties as a worker of the Women Development Program. The feudal patriarchs who were enraged by her work and guts and decided to teach her a lesson and raped her repeatedly (Samhita, 2001). After an extremely humiliating legal battle in the Rajasthan High Court the rape survivor did not get justice and the rapists — “educated and upper caste affluent men” — were allowed to go free. This enraged a women’s rights group called Vishakha that filed a public interest litigation in the Supreme Court of India
The Supreme Court of India, in 1997, in the Vishaka Judgment, recognized inappropriate behavior at the working environment as a human rights infringement.
The Vishakha guidelines categorically state that: It is the duty of the employer or other responsible persons in the workplace or institution to:
Prevent sexual harassment
- Provide mechanisms for the resolution of complaints
- All workplaces should have an appropriate complaints mechanism with a complaints committee, special counsellor or other support services.
- A woman must head the complaints committee and no less than half its members should be women.
- The committee should include an NGO/individual familiar with the issue of sexual harassment.
- The complaints procedure must be time-bound.
- Confidentiality must be maintained.
- Complainants/witnesses should not experience victimization/discrimination during the process.
Preventive steps: Sexual harassment should be affirmatively discussed at workers’ meetings, employer-employee meetings
- Guidelines should be prominently displayed to create awareness about the rights of female employees.
- The employer should assist persons affected in cases of sexual harassment by outsiders. • Central and state governments must adopt measures, including legislation, to ensure that private employers also observe the guidelines.
Employers’ responsibilities: Recognize sexual harassment as a serious offence.
- Recognize the responsibility of the company/ factory/workplace to prevent and deal with sexual harassment at the workplace.
- Recognize the liability of the company, etc, for sexual harassment by the employees or management.
- Formulate an anti-sexual harassment policy.
POST VISHAKHA SCENARIO :
The Bill for the protection of women from Sexual Harassment was moved in the Parliament in the year 2005. After a 10 long years gap in 2010, the Bill was in the Lok Sabha and following changes were introduced in the old Bill :
The new bill defines the term“sexual harassment” and also provides for a redressal mechanism through an “internal Complaints Committee” in the workplace or “Local Complaints Committee” at the district level.
Apart from that another obstacle was regarding the action to be taken against false and malicious charges or complaints and in reference to that issue the newer version of the Bill retained the action against false and malicious charges by ICC or Local Committee against the Complaint under section 14.
According to section 13 of the Bill there are two stages of enquiry:
- A) Once the charges are found and proved .B ) The report of the same is sent to the Disciplinary Committee and it will take action as per the service rules. This is a time consuming process, where the victim has to produce the evidences again and go through cross examination, which is a kind of mental torture to the victim.
However by the time new Act of 2013 came into effect the problem of sexual harassment was governed by the guidelines laid down by the Vishakha case in the year 1997. The main objective of the Act was to implement the guidelines and to ensure an access to safe workplace or safe working environment for both men (as same sex harassment also exists) and women.
SIGNS TO WATCH OUT FOR THAT YOU MIGHT BE A TARGET OF HARASSMENT AT WORKPLACE :
- Sexist Behavior: Calling somebody provocative at working environment isn’t fitting. Partners making sexist jokes towards you, odds are that you will be irritated. In numerous work environments, the abusers indulge in lewd behavior activities and utilize sexist conduct. This strategy is used to suppress the women employee and to make them feel small and weak prior starting the real harassment act. Though this act may not be named as a direct inappropriate behavior activity however such a demonstration should be taken as sign of caution as by the casualty that their hush may welcome something more terrible.
- Getting a compliment at workplace is not considered a bad thing, however if a compliment makes you feel sexually objectified, it can be a sign of sexual harassment.
- Any colleague sends you any personal message on your phone or social media accounts which makes you feel uncomfortable, then it’s unacceptable. Sending any kind of sexualised messages on whatsapp or compliments at work which makes you feel uncomfortable or frequently requesting for out of office meetings all account to harassment.
- In the event that your partners don’t regard your own space and continually touch you or pat you, notwithstanding you instructing them to stop, then you’re being harassed.
MYTHS AND FACTS ABOUT SEXUAL HARASSMENT
- Myth: Women enjoy eve-teasing/sexual harassment.
Fact: Eve-teasing/sexual harassment is humiliating, intimidating, painful and frightening.
- Myth: Only women are harassed and only men are sexual harassers.
Fact: Anyone, irrespective of gender can be the victim of harassment or a harasser.
- Myth Women who say ‘no’ actually mean ‘yes’.
Fact: This is a common myth used by men to justify sexual aggression and one-sided sexual advances.
- Myth: People invite sexual harassment by their behavior or dress.
Fact: Sexual harassment is not motivated act, but an expression of hostility and/or power focused on differences in gender or sexual orientation. People do not invite sexual harassment.
According to article 21 of The Indian Constitution, Every citizen has the right to live a life with dignity and free from mental and physical torture. But on the contrary, if we trace down the atrocities against women and till date, there isn’t much improvement and women continue to be a victim of harassment , eve teasing, stalking , rape etc where even the constitution indirectly itself has failed in providing a dignified life or life free from mental agony and physical torture to its women. India is a developing nation and more and more women are a part of its rampant development. Women have become independent and joining the workforce. Therefore it is the duty of the nation to introduce more stringent laws, rules and regulations, impose hefty penalties and strict punishments so that women gets a safer and a respectful working environment. The recognition of the right to protection against sexual harassment is an intrinsic component of the protection of women’s human rights. It is likewise a stage towards giving ladies freedom, fairness of chance and the privilege to work with pride and it is to an extent has been achieved and for its success the entire nation has to strive for it collectively.