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ABSTRACT
With time, opportunities for women in both educational and employment sector have increased. Now, thousands of women strive to work and earn for themselves without being dependent on their family or husbands. However, do these women also get a safe and secure environment to work? It is still a question at many places. One of the main reason due to which females choose not to work is sexual harassment that takes place on daily basis with them at the corporations by other employees or the employer himself. It is very important that as a nation, we work towards providing a secured workplace to the females so that they do not have to compromise over their skills and their future because of such reasons. Protection of women would also help in boosting the gender equality in the country and would also help in development of the nation.
Sexual harassment at workplace is addition to the violence meted out on women in day-to-day life. It is discriminatory and violative actions that abrogates the rights of women, given to them by the Constitution. Women are given right to equality that is enshrined under Article 14 and 15 of the Constitution. Also, they have been provided with right to live with dignity under article 21 of the Indian Constitution. India signed CEDAW (Convention on the Elimination of Discrimination Against Women) on July 9, 1993 to help in prevention of violence against the women. After the brutal gangrape of Bhanwari Devi, a social worker from Rajasthan in 1997, a petition was filed in the apex court of India for the first time, to enforce the fundamental rights of the working women. After the landmark case, Vishaka and Ors. Vs. State of Rajasthan, Vishaka Guidelines was enacted. Apart from this there were other acts such as- Sexual Harassment of Women at workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter referred to as POSH Act) which were enacted by the Indian law. This paper critically analysis the sexual harassment that takes place with women at the workplace and the vishaka guidelines that were setup to prevent the same.
KEYWORDS
Sexual harassment, vishaka guidelines, women rights, workplace
INTRODUCTION
Almost around fifty percent of the population of the India comprises of the women which are now visible in various sectors. The professions which were earlier considered to be only for men also witnesses the rising number of women in the same profession. This positive change in the country also faced certain horrifying and unwanted cases too relation to assault and sexual harassment usually carried by men against women. Women were considered to be an object over which mental and physical torture was done not only at home but at their workplace too. It is a problem happening worldwide, be it a developed or a developing state. The issue causes a negative impact on both men and women however, it is more prevalent in females.
Many law reforms, prohibition and prevention acts have come across the globe and various enactments have been done even by the United Nations, still the problem exists to prevail. Women, since ages, are considered to be most vulnerable group and that is why they go through various types of crimes including human trafficking, female foeticide, sexual harassment, stalking and also one of the most heinous crimes known as rape.
Sexual harassment is an unwelcome behaviour. It is not an involuntary act and sometimes occur when a consent is given to certain offensive and objectionable behaviours. It depends upon the victim subjected to the behaviour of the other person and how she perceives the same. For example- sex-oriented comment or some kind of derogatory joke. [2]
WHAT CONSTITUTES SEXUAL HARASSMENT?
There are two broad categories under which sexual harassment at workplace falls in. These categories are as follow-
Hostile work environment- it defines a workplace where the actions and behaviour of other employee disrupts the work of the victim or due to which the victim is not comfortable enough to carry out the work. The subjected person does not feel like coming to work and sometimes they eventually leave the place due to the actions of the other person.
Quid pro quo- the literal meaning of the term quid pro quo is “a favour or advantage in return something”. If a supervisor or an employer asks for a sexual favour in return of a job offer or refuses to increase the salary or denies to give it on refusal of the sexual favour, these circumstances are said to be quid pro quo.
Inappropriate physical or verbal conduct- unwanted physical touches such as, unwanted massages, squeezes etc, that makes the other person uncomfortable or verbally passing any intrusive comment about one or making sensual noises upon one’s clothes falls under inappropriate conduct which could also account to be sexual harassment.
Inappropriate digital conduct- sending explicit videos or link to such content over the social media or any other digital platform, explicit photographs of oneself to an unwilling recipient also constitutes to be a sexual harassment which takes place through the networks of the internet and is one of the major issues prevailing in today’s time. [3]
HISTORICAL BACKGROUND OF VISHAKA GUIDELINES
THE BHANWARI DEVI CASE
FACTS OF THE CASE
Bhanwari Devi, a Dalit government employee, used to spread awareness regarding hygiene and education and she also used to run campaigns relating to dowry and child marriage. During the course of her employment, she was trying to stop a child marriage taking place and was trying to save the young girl who was being forced to get married by her parents. The marriage involved certain politicians and influential people due to which Bhanwari Devi failed to stop the occurrence of the marriage. She tried to resist and also carried out a rally regarding the child marriage that was taking place.
A group of people gangraped Bhanwari Devi while she was with her husband. They attacked her out of revenge of the campaigns and rallies she organized to stop the child marriage. She tried to file criminal suit against the attackers but her complaint firstly was lodged by the police after fifty-two hours and was not taken seriously as it was against influential people.
JUDGEMENT AND AFTERMATH
As the case proceeded to Rajasthan High Court, the court acquitted all the attackers on the various grounds one of which was that a women cannot be raped in front of her husband and that a head of the panchayat cannot be indulged in such actions. Later on, the Rajasthan High Court convicted the attackers for assault and awarded them the punishment way lesser in comparison to the punishment give to a rapist.
This judgement gave a start to various rallies and protest by the general people and women safety organisations. These protestors were beaten by the police and many attempts were made to stop the people from protesting. On the other hand, people were not ready to stop and were determined to pressurize the government and other authorities to give justice to Bhanwari Devi.[4]
Vishaka and Ors. v. State of Rajasthan[5]
FACTS OF THE CASE
A collection of non-profit organisations dedicated to women’s protection filed a plea before India’s Supreme Court, asking for justice for Bhanwari Devi and, as a result, the proper penalty for the men involved in gang rape. They filed a public interest lawsuit called Vishaka, alleging that Bhanwari Devi’s fundamental rights had been infringed. They also wanted a new set of guidelines for women’s safety.
The NGOs also brought up the issue of women’s safety at work in their PIL, citing the fact that Bhanwari Devi’s employer refused to accept responsibility, despite the fact that the reason she was raped was related to the work she was obliged to do as part of her job. As a result, the PIL set out to create a new set of recommendations for women’s workplace safety.
JUDGEMENT
Sexual harassment violates the fundamental rights guaranteed by Article 14, Article 15, Article 19(1)(g), and Article 21 of the Indian Constitution, according to a three-judge bench.
The Vishaka guidelines were established by the court to protect women at work and to provide a safer working environment for women.
THE VISHAKA GUIDELINES[6]
- Duty of the Employer or other responsible persons in workplaces and other institutions
It essentially defines the responsibility of the employer or other responsible persons in the workplace or other institutions to prevent or deter the commission of acts of sexual harassment and to provide procedures for the resolution, settlement, or prosecution of such acts by taking all the necessary steps.
- Definitions
Sexual harassment is defined as any unwelcome sexually determined behaviour (whether directly or indirectly) that includes:
a) physical contact and advances
b) a demand or request for sexual favours
c) sexually coloured remarks
d) showing pornography
e) any other unwelcome physical verbal or non-verbal conduct of sexual nature
- Preventive Steps
Sexual harassment should be avoided by all employers or those in charge of work places, whether in the public or private sector. They should take the following steps, without regard to the generality of this obligation:
- A clear prohibition of sexual harassment at work, as stated above, should be announced, publicised, and widely distributed.
- Government and public sector organisations should incorporate laws preventing sexual harassment in their conduct and discipline policies, as well as suitable consequences for the perpetrator.
- In the case of private employers, steps should be taken to include the aforementioned prohibitions in the industrial employment (standing orders) act of 1946’s standing orders.
- Appropriate work circumstances in terms of work, leisure, health, and cleanliness shall be given to ensure that there is no hostile environment toward women at work and that no employee woman has reasonable grounds to believe she is disadvantaged in her job.
- Criminal Proceedings
If the behaviour amounts to a specified offence under the IPC or any other law, the employer must take proper legal action by filing a complaint with the appropriate authority. It should, in particular, ensure that victims or witnesses are not traumatised or discriminated against when dealing with sexual harassment accusations.
- Disciplinary Actions
Workplaces where such behaviours, as defined above, are considered to be a misconduct and does not receive support from other people at the same place, the employer should take appropriate disciplinary action in line with those rules.[7]
- Complaint Mechanism
Whether or not such conduct is illegal or in violation of the employer’s service rules, an appropriate complaint procedure should be established in the employer’s organisation to address the victim’s complaint.[8]
- Complaint Committee
Whether these conducts are considered to be illegal under the law or rules of the company, some type of complaint mechanism should be established in every organisation to provide both men and women a safe working environment. These committee should be headed by a woman or some NGO or any other authority which is familiar with this issue.
- Worker’s Initiative
Workers should be given the freedom to raise their voice and bring up the matter of sexual harassment in work meetings and in employer-employee meetings. Following this, some serious actions should be taken by the organisation to prevent the same and help the victim too.
- Awareness
Working women should be made aware of their rights and also about these guidelines made by the government for their protection.[9]
POST-VISHAKA SCENARIO IN INDIA
The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act 2013 was the most significant step following the Vishaka decision. This legislation was passed in April 2013 as India’s first law addressing the protection of women at work from sexual harassment. The following are some of the act’s key features:
- This Act aims to provide a safe and secure working environment for all women, regardless of their age or job status.
- In India, this Act applied to both the organised and unorganised industries. All government bodies, private and public sector organisations, non-governmental organisations, commercial, vocational, educational, entertainment, industrial, financial, and other organisations, as well as hospitals, were covered by the Act.
- The term “sexual harassment” was defined in this Act in accordance with the Supreme Court’s definition in the Vishaka case.
- This act also included, “Presence or occurrence of circumstances of implied or explicit promise of preferential treatment in employment, threat of detrimental treatment in employment, threat about current or future employment, interference with work or creating an intimidating, offensive, or hostile work environment, or humiliating treatment likely to affect the lady employee’s health or safety could also amount to sexual harassment”, in the definition of sexual harassment.
- Since sexual harassment might not often occur in the primary place of employment, the Act also established the concept of a “extended workplace.” As a result, the Act defined “workplace” as any location visited by an employee as a result of or in the course of employment, including transportation supplied by the employer for the purpose of commuting to and from the workplace.
- The Act mandated the formation of an Internal Complaints Committee (ICC) at each and every office or branch of a company with ten or more employees in order to offer a place for filing allegations and expedite the resolution of sexual harassment complaints.
- It also called for the government to set up a local complaints committee (LCC) at the district level to examine and remedy sexual harassment accusations from the unorganised sector or from establishments where the ICC has not been formed because they have fewer than ten employees.
Apart from the above act, the Criminal Law Amendment Act, 2013 amended several provisions of the Indian Penal Code, 1860 to include several offences such as outraging a woman’s modesty, assault or use of criminal force with intent to disrobe, stalking, and voyeurism, thus creating an exclusive disclaimer to deal with the issue of sexual harassment.[10]
CONCLUSION
“A murder usually destroys the physical aspect of a human being, while harassing a woman degrades her deteriorates her reputation in a society like India.” India has developed since ages and have accommodated its female population at various sectors of the society. Be it education or workplaces, the ratio of women as to men have increased and women have started to participate actively in various fields of occupation. With this development, one more issue that needs to be attended by the lawmakers is of sexual harassment that takes place at various workplaces which not only decreases the number of working women but also affects the reputation of company and the women too. Providing a safe and secured working environment to women helps in upgrading their basic human rights of equality and living a dignified life. For this, various workshops, seminars and other awareness activities should take place in workplaces as well as in general too so that women are made aware of their rights and the remedies available to them. Also, employers as well as employees should also be made aware of the guidelines established in organizations to prevent any kind of misconduct and the punishment it could attract. The committees already working at several companies should be evaluated and regulated regularly to upgrade the working and preventing any mishap. Hence, the companies and the government should work hand in hand to combat this issue and eradicating it from the society.
[1] Calculation of Remuneration, available at https://accountlearning.blogspot.com/2011/10/calculation-of-liquidators-remuneration.html ( Visited on March 20, 2022 03.04pm)
[2] Sexual Harassment of Women at Workplace available at
http://www.legalservicesindia.com/article/2114/Sexual-Harassment-of-Women-at-Workplace.html ( visited on March 20, 2022)
[3] What Constitutes Workplace Sexual Harassment? Available at
https://leadgrowdevelop.com/what-constitutes-workplace-sexual-harassment/#:~:text=%20The%20EEOC%20outlines%20two%20main%20categories%20of,job%20advances%20or%20opportunities%3F%20Do%20they…%20More%20 ( visited on March 20, 2022)
[4] The Vishaka Guidelines: A step against Sexual Harrasment available at https://blog.ipleaders.in/vishaka-guidelines/ ( visited on March 19, 2022)
[5] Vishaka v. State of Rajsthan, available at https://indianlawportal.co.in/case-analysis-vishaka-v-state-of-rajsthan ( visited on March 20, 2022)
[6] Sexual harassment and Vishakha guidelines: All you need to know available at https://www.firstpost.com/india/sexual-harassment-and-vishakha-guidelines-all-you-need-to-know-1241649.html ( visited on March 20, 2022)
[7] Vishaka v. State of Rajsthan available at https://indianlawportal.co.in/case-analysis-vishaka-v-state-of-rajsthan/#:~:text=“Vishakha%20guidelines”%201%20Duty%20of%20the%20Employer%20or,2%20Definition%3A%203%20Preventive%20Steps%3A%20More%20items…%20 ( visited on March 20, 2022)
[8] Sexual Harassment of Women at Workplace available at http://www.legalservicesindia.com/article/2114/Sexual-Harassment-of-Women-at-Workplace.html ( visited on March 20, 2022)
[9] Vishaka v. State of Rajsthan available at
https://indianlawportal.co.in/case-analysis-vishaka-v-state-of-rajsthan/#:~:text=%E2%80%9CVishakha%20guidelines%E2%80%9D%201%20Duty%20of%20the%20Emplo yer%20or,2%20Definition%3A%203%20Preventive%20Steps%3A%20More%20items…%20 ( visited on March 20, 2022)
[10] Sexual harassment at workplace: Developments post Vishaka Judgement available at
https://www.gktoday.in/topic/sexual-harassment-at-workplace-developments-post-vishaka-judgement/ ( visited on March 20, 2022)
Author:KASHISH BANSAL, SYMBIOSIS LAW SCHOOL, NOIDA
Editor: Kanishka Vaish, Senior Editor, LexLife India
Lexlife India 