Sexual Harassment at Workplace in India: Background and Legislative Actions

Half of the total number of crimes against women is related to the molestation and harassment at the workplace. The parliament has enacted the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 to curb the menace of this evil.

Background

In 1992, Bhanwari Devi, a Saathin of village Bhateri near Jaipur was gang-raped. The subsequent court cases attracted attention of the national and international media. Though, those who raped Bhanwari could not be convicted, yet the efforts of an NGO called Vishaka led the Supreme Court to pass a historic judgement on sexual harassment at workplace. The judgement is popularly known as “Vishaka Judgement”. Vishaka had filed a petition, which sought an enforcement of fundamental rights of working women under Article 21 of the Constitution. At that time, there was no specific law against sexual harassment at workplace so the Court laid down some guidelines. It was after this case that sexual harassment came to be categorised as human rights violation.

• The Supreme Court made a novel use of Article 21 to ensure that the female workers are not sexually harassed by their male co-workers at their places of work.
• The court declared sexual harassment of a working woman at her place of work as amounting to violation of rights of gender equality and right to life and liberty which is clear violation of Articles 14, 15 and 21 of the Constitution.
• The Court has observed in this connection: “The meaning and content of the Fundamental Rights guaranteed in the Constitution of India are of sufficient amplitude to encompass all the facts of gender equality including prevention of sexual harassment or abuse.”

Definition of Sexual Harassment in the workplace

The court defined sexual harassment in the workplace as an unwelcome sexual gesture or behaviour, whether directly or indirectly. This includes:

• Sexually coloured remarks
• Physical contact and advances
• Showing pornography
• A demand or request for sexual favours
• Any other unwelcome physical, verbal/non-verbal conduct that is sexual in nature.

The Vishaka Guidelines

• All employers whether in the public or the private sector, should take appropriate steps to prevent sexual harassment.
• Appropriate work conditions should be provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women and no woman should have reasonable grounds to believe that she is disadvantaged in connection with her employment.
• Where such conduct amounts to specific offences under the Indian Penal Code or any other law, the employer shall initiate appropriate action in accordance with the law, by making a complaint with the appropriate authority.
• Victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer.

These guidelines are applicable to:

• The employer or other responsible persons or other institutions to prevent sexual harassment and to provide procedures for the resolution of complaints;
• Women who either draw a regular salary, receive an honorarium, or work in a voluntary capacity—in the government, private or organised sector come under the purview of these guidelines.

The Preventive Steps as suggested by SC in Vishaka Case

• Guidelines should be prominently notified to create awareness about the rights of women employees.
• Sexual harassment should be discussed at workers’ meetings, employer-employee meetings and at other appropriate forums.
• Employers should assist the persons affected in cases of sexual harassment by outsiders or third parties.
• Both Central and State governments are required to adopt measures including legislations to ensure that private employers also observe these guidelines.
• Employers must form a Complaints Committee which is to be headed by a woman. Half the members of the committee should be women.

Salient Features of Prohibition of Sexual Harassment at the Workplace Act

This law defines sexual harassment as laid down by the Supreme Court in Vishaka vs. state of Rajasthan (1997) case. Sexual harassment includes any one or more unwelcome acts or behaviour like physical contact and advances, a demand or request for sexual favours or making sexually coloured remarks or showing pornography. The acts whether directly, or by implication, include any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

The act makes it mandatory that all offices, hospitals, institutions and other workplaces should have an internal redressal mechanism for complaints related to sexual harassment. Every employer is required to constitute an Internal Complaints Committee. For establishments which employ less than 10 workers, the act provides for setting up a five-member local complaints committee (LCC).  The Complaints Committees have the powers of civil courts for gathering evidence. The Complaints Committees are required to provide for conciliation before initiating an inquiry, if requested by the complainant. The Act defines domestic worker as a woman employed to do household work in any household for remuneration whether in cash or kind, either directly or through any agency on temporary, permanent, part time or full time basis, but does not include any member of the family of the employer. Those who do not comply with the Act’s provisions will be fined up to Rs 50,000. Repeated violation would be punished with higher penalties and cancellation of licence or registration to conduct business. The act does not cover members of the armed forces including Women in the armed forces.