Sexual harassment at workplace: Developments post Vishaka Judgement

Sexual harassment at the workplace has always been one of the central issues of the women’s movement in India since a long time. In the earlier times, women experiencing sexual harassment at workplace had to file a complaint under Section 354 of the Indian Penal Code that dealt with the charges of criminal assault of women for outraging her modesty, and Section 509 which punished for using a word, gesture or act intended to insult the modesty of a woman. However, these sections left the interpretation of the expression ‘outraging women’s modesty’ disputed. Since the very concept of outraging modesty involved range of behaviors, it became difficult even for the victims to explain what they experienced.

The entire scenario changed in the year 1997 with the introduction of SC guidelines, as a part of the landmark judgement in the case of Vishaka and others v. State of Rajasthan and others owing to the gang rape of a woman, who was a social worker in a development programme, initiated by State Government of Rajasthan, aiming to curb the evil of child marriages. She was raped by a group of men as she attempted to stop a child marriage in their family. The Supreme Court judgement, which came on 13th August 1997, gave the Vishaka guidelines to prevent sexual harassment of working women and this is how this case marked the first step in the evolution of laws for the protection of women from harassment at the workplace. The court instructed that these guidelines should be implemented until new legislation is passed to deal with the issue.

Vishaka case guideline- Key features

• It mentioned that it is the duty of the employer or other responsible persons in work places or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedure for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps required.
• It also provided with the range to behaviour that would be termed as sexual harassment, which includes such unwelcome sexually determined behaviour (whether directly or implication) as :-
  • physical contact and advances;
  • a demand or request for sexual favours;
  • sexually coloured remarks;
  • showing pornography;
  • any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
• It also provided with Complaints mechanism by stating that-

1. All workplaces should have an appropriate complaints mechanism with a complaints committee, special counsellor or other support services.
2. A woman must head the complaints committee and no less than half its members should be women.
3. The committee should include an NGO/individual familiar with the issue of sexual harassment.
4. The complaints procedure must be time-bound.
5. Confidentiality must be maintained.
6. Complainants/witnesses should not experience victimization/discrimination during the process.

Legislative and administrative changes – Post -Vishaka case

The most important development after the Vishaka judgement was the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013. This act was enacted in April 2013 as India’s first law dealing with the protection of women against sexual harassment at workplace. Some important feature of this act are as follows:

• This Act aimed to provide every woman, irrespective of her age or employment status, a safe and secure working environment free from all forms of harassment.
• This Act covered both the organized and unorganized sectors in India. The statute applied to all government bodies, private and public sector organizations, non-governmental organizations, organizations carrying out commercial, vocational, educational, entertainment, industrial, financial activities, hospitals etc.
• This Act defined ‘sexual harassment’ in line with the Supreme Court’s definition in the Vishaka Judgment.
• The Act extended the meaning of the word sexual harassment to include “presence or occurrence of circumstances of implied or explicit promise of preferential treatment in employment, threat of detrimental treatment in employment, threat about present or future employment, interference with work or creating an intimidating or offensive or hostile work environment, or humiliating treatment likely to affect the lady employee’s health or safety could also amount to sexual harassment”.
• The Act also introduced the concept of ‘extended workplace’ since sexual harassment is not always confined to the primary place of employment. Therefore, the Act defined ‘workplace’ to include any place visited by the employee arising out of or during the course of employment, including transportation provided by the employer for the purpose of commuting to and from the place of employment.
• The Act provided for the establishment of Internal Complaints Committee (ICC) at each and every office or branches of the organization employing 10 or more employees, in order to provide a forum for filing complaints to facilitate fast redressal of the grievances pertaining to sexual harassment.
• It also provided for the establishment of local complaints committee (LCC) at the district level by the Government to investigate and redress complaints of sexual harassment of the unorganized sector or from those establishments where the ICC has not been constituted for the reason being, it having less than 10 employees.

Apart from the above act, several provisions of the Indian Penal Code, 1860 were modified via the Criminal Law Amendment Act, 2013 to bring several offenses under its purview including outraging modesty of woman, assault or use of criminal force with intent to disrobe, stalking and voyeurism thus making an exclusive proviso to deal with the issue of sexual harassment.

Issues and Analysis

The Sexual Harassment Act was a much awaited piece of legislation because prior to this act, there was no law to govern this matter and thus it appeared to be a significant step towards ensuring women a safe and healthy work environment. However, the Act still suffers from some flaws. Firstly, it fails to cover those women working in the agricultural workers and armed forces, which are largely men – dominated sectors. Secondly, the act appears to be gender biased since it only protects women. Thirdly, the act has wide scope for false allegations. There are high chances of these laws getting misused at the hands of women for their personal benefits. Fourthly, the provision regarding the fixing of the monetary compensation according to the economic potential of the person, makes it discriminatory since the person with high rank and status will be made to pay more than the person with low status, which from nowhere seems to serve any purpose other than being discriminatory in nature.

It is not to be denied that the Act marks an important step in recognizing a concern that affects most women however a lot is still needed to be done since for a better safety and protection of women, something more than the regulation of sexual conduct is needed because making regulation to guide the conduct of other person or moral surveillance of women’s lives only strengthen the sexual stereotypes and sexual orthodoxy. Therefore, a more stringent law is needed to address the issue of sexual harassment with the support of and not at the cost of women’s fundamental rights.