Sexual harassment is a kind of experience, forgetting it is difficult, and remembering it is even worse. It is a gross violation of women’s right to equality and dignity. Sexual harassment is faced in various areas including workplace, schools, and institutions whereas workplace is the sector where most of the women’s face harassment. According to the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013, sexual harassment includes any one or more of the following unwelcome acts or behavior (whether directly or by implication) namely, physical contact and advances, demand or request for several favors, making sexually colored remarks, showing pornography, and any other unwelcome physical, verbal, non-verbal conduct of sexual nature. Even in this modern era, independent women face harassment, injustice, or inequity at workplace. As per Section 19(1)(g) of the Constitution of India, every woman has the right to participate in public employment. In spite of the fact that the majority of the global population constitutes women, they face disadvantage in variety of positions because of gender biasness. They had suffered exploitation and violence from male-dominated societies. Sexual harassment at workplace is a form of gender-based violence against women which not only violates their dignity, self-respect, self-esteem but also violates their human and Constitutional rights.
For thirty years, a woman in Rajasthan, Bhanwari Devi, brings her memories of that dreaded day afresh every time she leaves for the High Court. Bhanwari Devi has now retired from her job of ‘Saathin’ three and a half years ago, and doing this very job brought catastrophe to her, she was raped for reporting child marriage happening in her village. As they say “Strong women stand up for themselves and stronger ones stand up for others”. Bhanwari Devi took a course on the Justice system and is still fighting the legal battle inspiring many others such as Vishakha Women’s Rehabilitation Group. They contested in the Supreme Court the inadequacy of laws that ensure the security of women at the workplace and then ‘The Vishaka Guidelines’ came into existence.
The Vishaka Guidelines
As a result of the petition filed by Vishaka and four other women organizations from Rajasthan and Delhi, these guidelines were issued. The Supreme Court of India issued a judgment in the Vishaka & Ors. vs. State of Rajasthan & Ors. (1997) case where the vishaka guidelines were created. While hearing this matter, the top Court noted that “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 in the absence of legislative measures.” The guidelines issued are:
Strict laws should be made by the government to prohibit sexual harassment against women in both public and private sectors.
It is the duty of the employer or any other responsible person in the workplace to provide security to every working women.
It is the responsibility of an employer to file a complaint if any conduct towards an employee is punishable under the Indian Penal Code.
The employer should ensure that every working employee in the organization is exposed to a safe working environment.
Disciplinary action should be taken by the employer in case any ill-treatment or sexual harassment of a woman employee is found.
A complaint redressal committee should be set up by the organizations which should include at least 50% of women to initiate comfortable communication.
An employer should guide another employee who suffered from sexual harassment as well as he should spread awareness related to the sexual harassment.
These guidelines were further replaced by the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013.
Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 (POSH Act)
In 2013, the government enacted this Act “to provide protection against sexual harassment of women at workplace and for the prevention and redressal of complaints of sexual harassment and for matters connected therewith or incidental thereto.” This Act ensures that the workplaces are free from sexual harassment and provides safe as well as secure environment for women. As per Section 3 (1) of the POSH Act, “No woman shall be subjected to sxual harassment at any workplace.” Moreover, Section 19 (a) illustrates that Every employer should “provide a safe working environment at the workplace which shall include safety from the persons coming into contact at the workplace.” Some of the important provisions of the POSH Act are illustrated as follows:
Internal Complaints Committee: As per Section 4 of the Act, every employer should constitute a Committee for attending complaints from the employers. The members involved in this committee include, Presiding Officer (women), two members among the employees (having social work experience or legal knowledge), and an external member (from NGOs or associations having experience in sexual harassment issues). At least three members of the Internal Complaints Committee should be female. They have maximum term of three years.
Local Committee: This Act ensures that every District Officer should establish a Local Complaints Committee to deal with sexual harassment cases. This Committee constitute of a woman chairperson (women’s rights activist and an eminent social worker), two NGO members (one with knowledge about sexual harassment issues and another one of the Scheduled Caste), and a local woman (working in talukas, wards, municipalities, blocks, and tehsils within the district).
Procedure of complaint:Section 9 of the POSH Act provides detailed information about how to file a complaint either with Internal Committee or Local Committee against sexual harassment. Aggrieved woman may file a complaint within three months of the incident date.
Conciliation: A complaint between the parties can be resolved by the Local committe or Internal Committee at the aggrieved woman’s request under Section 10 of this Act.
Compensation: Compensation is paid to the aggrieved woman and Section 15 of this Act determined different factors on the basis of which compensation is given. The factors include, (i) Aggrieved working women suffered from pain, emotional distress, mental trauma, and suffering due to sexual harassment, (ii) medical expenses for physical or psychiatric treatment, (iii) loss in the career opportunity, (iv) financial status of the alleged perpetrator and (v) whether lump sum or instalment payments are feasible.
False or malicious complaints: Section 14 of the POSH Act determines that actions will be taken against the complainants who makes false or malicious complaints. Disciplinary actions are provided in the statute include warnings, attending counseling, written apologies, terminating employment, withholding of promotion and censure.
Duties of the employer: POSH Act also highlights the duties of the employer in case any woman employee from the organziation faces sexual harassment. Section 19 of the POSH Act illustrates various duties including, to provide a secure and safe environment, to aware women employees regarding the measures or steps to take for filing a complaint, to treat sexual harassment as a misconduct according to the service rules, to provide necessary requirements of Internal Committee or Local Committee, and various others.
In addition to this, Indian Penal Code, 1860, also highlights certain provisions against the offence of sexual harassment at workplace
Indian Penal Code, 1860 and sexual harassment at workplace
According to the Indian Penal Code, any conduct of sexual harassment is an offence and can be penalized. It was brought within the ambit of Section 354 which illustrates that any act outraging the woman’s modesty is a crime. After the Criminal Amendment Act, 2013, a dedicated section was inserted in the IPC for making sexual harassment an offence. Sections addressing sexual harassment as an offence are listed as follows:
Section 294: Any act of obscenity in a public place or singing, uttering, or reciting obscene songs in or near any public place resulting in annoyance to the public is punishable either with imprisonment for a term which may extend to three months or a fine or both.
Section 354: This Section of IPC ensures punishment to anyone who assaults or uses any criminal force against a woman with the intent to outrage her modesty.
As per Section 354A, Any man who commits an offence such as a demand or request for sexual favors, making sexually colored remarks, unwelcome sexual overtures, and showing pornography against the will of a woman is punished with rigorous imprisonment that may extend to three years or one year in case of making sexually colored remarks, or a fine or both. IPC punishes sexual harassment done anywhere including the workplace.
According to Section 354B, any man who assaults or uses any criminal force on a woman with an intent to disrobe is punished with imprisonment that may extend to seven years, or a fine or both.
Section 354C of the IPC ensures to punish any man involved in voyeurism with imprisonment for not less than one year which may extend to three years and a fine. Also, if a man is found guilty of the crime for more than one time then he will be punished with imprisonment for not less than three years which may extend to seven years and a fine. It states that “Any man who watches, or captures the image of a woman engaging in a private act in circumstances where she would usually have the expectation of not being observed either by the perpetrator or by any other person at the behest of the perpetrator or disseminates such image shall be punished…”
Under Section 354D, stalking is a punishable offence and the one who commits this offence is punished with imprisonment that may extend to three years and a fine. In case, a man commits the same offence more than one time then the convict will be punished with imprisonment that may extend to five years and a fine. Stalking is defined under this Section of the IPC as “A man who (i) follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman; or (ii) monitors the use by a woman of the interest, email or any other form of electronic communication, commits the offence of stalking.” This Section has an exception if a person is stalking or monitoring the activities of a woman as part of a legal duty.
Section 509: Making any gesture, uttering any word, or exhibiting any object that intends to insult the modesty of a woman is punishable under this Section of the IPC. Punishment for violation of this Section is either imprisonment which may extend to one year or a fine or both. It states that “Whoever, intending to insult the modesty of any 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 or object shall be 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.”
Women share common space with men in the workplace, despite this, women face gender-based violence. Nowadays, in most of the organziations, the women are outnumbered by men but they are judged on the grounds of all other factors rather than the quality and quantity of work they deliver. Sexual harassment is one such violence which is faced by working women. Although, the government introduced the POSH Act but there is lack of expert committees to handle such cases. In a recent judgment, Aureliano Fernandes vs. State of Goa and others, the Supreme Court directed the Centre and State government to verify whether panels have been constituted in all the departments and ministries to probe sexual harassment allegations at workplace. The committes can only work if a women come forward against the wrongdoers and files a complaint. If they do not file a complaint then even an expert committee cannot do anything.
1. Can both men and women be victims of workplace sexual harassment?
2. Is conciliation between the parties involved in a claim of sexual harassment possible?