EVOLUTION OF THE LAWS ON SEXUAL HARRASMENT OF WOMEN IN WORK PLACES
“With improved access to education and employment, millions of Indian women are entering the country’s workforce today. Many working women face sexual harassment at workplace on daily basis. It is crucial therefore that as a country, we strive to eliminate work-place sexual harassment since women have the right to work in safe and secure environment. Protection of women is necessary for gender equality and development of nation as a whole.”
Long bygone are the days when men used to be the sole bread-winners of the family. Globalization not only connected the world and brought influx of changes but also brought a radical shift in the status of women worldwide. However, with the large participation of women in the mainstream workforce of India, cases of sexual harassment at workplaces ranged from scores to centuries. Sexual harassment at workplaces is an extension of violence in the everyday life and is exploitative and discriminatory in nature. In India a woman is sexually harassed every 12 minutes. It is a universal phenomenon present both in first world and third world countries and by cutting across religion, culture, race, caste, sex and geographical boundaries it has spread like a virus in the society. Being offensive to human dignity, rights and gender equality, it has emerged as a complex crisis the world over.
As defined by the court in the landmark judgement of Vishaka v. State of Rajasthan, the term “Sexual Harassment’ includes any one or more of the following unwelcome sexual acts or behaviours (whether directly or by implication) namely Physical contact and advances, A demand or request for sexual for sexual favours, Sexually coloured remarks, Showing pornography, Any other physical, verbal or non-verbal conduct of sexual nature.” A workplace on the other hand is defined as “any place visited by the employee arising out of or during the course of employment, including transportation provided by the employer for undertaking such a journey.” The workplace as defined by the aforementioned definition includes both formal and the informal sector.
Across the globe today, sexual harassment of women at workplaces is increasing at an alarming rate and it is also considered as a violation of women’s right and a form of ferocity against them. Various conventions and resolutions are conducted on a global platform to address the issue and combat it, to name a few, United Nations General Assembly Resolution on the declaration on elimination of violence against women further substantiates violence against women and includes sexual harassment at work, in educational institutions etc. Moreover article 7 of the international covenant on Economic, social and cultural rights recognizes her right to fair condition and also states the women should not be subject to harassment. In addition to this, the UN Convention on the Elimination of all forms of Discrimination against Women (CEDAW) guides the state parties to take competent measures to put an end to discrimination against women in all fields, especially workplace, healthcare and in other public spheres. The ILO’s Indigenous and Tribal Peoples Convention also specifically prohibits sexual harassment in the workplace. Though there are a number of international laws and policies for addressing sexual harassment in the workplaces but the social structure of the patriarchal privileges are perpetually used to justify the violence against women in public and private domain.
Elimination of Gender based discrimination is on of the fundamental principles of the Indian constitution and in addition to that Article 14 of the constitution guarantees the equality of every person under law. Not to forget, “Equality of status and opportunity” for all of its citizens is an integral part of the constitution. Hence it is safe to say that a safe workplace is a women’s legal right. The constitutional precept of personal liberty and equality is mentioned in Article 14, 15 and 21 and these provisions ensure a person’s right to equal protection under the law, to live freely from discrimination on any ground and protection of life and personal liberty. To further substantiate, it is reinforced by the CEDAW, which was adopted by the general assembly in 1979 and is also ratified by India. It highlights that attacks on women’s dignity and discrimination violates the principle of equality of rights. Article 19(1)(g) of the constitution additionally guarantees and ensures to each individual the right "to practice any profession, or to carry on any occupation, trade or business" Every woman has a constitutional right to partake in public employment and this privilege is denied in the process of sexual harassment, which urges her to keep away from such employment. sexual harassment of women at workplaces exposes her to a big risk and peril which puts her at a biased position vis-à-vis other employee and this adversely influences her capacity to understand her constitutionally ensured right under Article 19(1) (g).
Sexual harassment of women at workplace is also a violation of the right to life and personal liberty as mentioned in Article 21 that no person shall be deprived of his life or personal liberty. Right to livelihood is an integral facet of the right to life. Sexual harassment is the violation of the right to livelihood. For the meaningful enjoyment of life under Article 21 of the Constitution of India, every woman is entitled to the elimination of obstacles and of discrimination based on gender. Since the ‘Right to Work’ depends on the availability of a safe working environment and the right to life with dignity, the hazards posed by sexual harassment need to be removed for these rights to have a meaning. The preamble of the Constitution of India contemplates that it will secure to all its citizens – “Equality of status and opportunity.” Sexual harassment vitiates this basic motive of the framers of the constitution. The concept of gender equality embodied in our Constitution would be an exercise in ineffectiveness if a woman’s right to privacy is not regarded as her right to protection of life and liberty guaranteed by Article 21 of the Constitution of India. In view of the fact that sexual harassment of women at the workplace violates their sense of dignity and the right to earn a living with dignity, it is absolutely against their fundamental rights and their basic human rights.
Sexual harassment of women at workplace, was for the first time recognized by the supreme court in its landmark judgement of Vishaka v. State of Rajasthan, in which the court framed certain guidelines and issued directions to the UOI to enact an apt law for dealing with workplace sexual harassment. It is no less than an irony that the POSH act was enacted and adopted 16 years after the Vishaka judgement. Until the enactment of the POSH act, Vishaka guidelines were followed by the employers, which laid down a mechanism of redressal of grievances pertaining to the incidents of workplace sexual harassment.
In 1992, Bhanwari Devi, a Dalit lady employed with the rural advancement program of the Government of Rajasthan, was mercilessly assaulted by virtue of her endeavours to control the then pervasive act of youngster marriage. This occurrence uncovered the perils that working ladies were presented to on an everyday basis and featured the earnestness for safeguards to be implemented in such regard. Supporting the reason for working ladies in the nation, women's rights activists and attorneys documented a public interest litigation in the Supreme Court under the flag of Vishaka. According to the Vishaka Judgment, the Vishaka Guidelines provided under Article 32 of the Constitution, until such time an administrative system regarding the matter has been drawn-up and ordered, would have the effect of law and would need to be compulsorily trailed by associations, both in the private and government area.
The Vishaka judgment started a cross country talk on workplace sexual harassment and tossed out all the way open an issue that was hidden where no one will think to look for a very long time. The primary case under the steady gaze of the Supreme Court after Vishaka in this regard was the situation of Apparel Export Promotion Council v. A.K Chopra. For this situation, the Supreme Court emphasized the law set down in the Vishaka Judgment and maintained the excusal of an unrivalled official of the Delhi based Apparel Export Promotion Council who was seen as liable of explicitly irritating a subordinate female representative at the work environment. In this judgment, the Supreme Court augmented the definition of sexual harassment by deciding that physical contact was not fundamental for it to add up to a demonstration of inappropriate behaviour. The Supreme Court clarified that " sexual harassment is a type of sex segregation extended through unwanted lewd gestures, demand for sexual kindnesses and other verbal or physical lead with sexual hints, regardless of whether straightforwardly or by suggestion, especially when accommodation to or dismissal of such direct by the female representative was fit for being utilized for influencing the work of the female worker and absurdly meddling with her work execution and had the impact of establishing a scary or unfriendly workplace for her."
A letter composed by Dr. Medha Kotwal of Aalochana (an NGO) featured various individual instances of sexual harassment expressing that the Vishaka Guidelines were not being viably actualized. Changing over the letter into a writ appeal, the Supreme Court took cognizance and undertook monitoring of usage of the Vishaka Guidelines the nation over by guiding state governments to file affidavits stressing on the means taken by them to actualize the Vishaka Guidelines. In its judgment, the Supreme Court observed that "the implementation of the Vishaka Guidelines has to be not only in form but also in substance and spirit so as to make available safe and secure environment for women at workplace in every aspect and thereby enabling working women to work with dignity, decency and due respect." At long last, the Supreme Court affirmed that if there should arise an occurrence of a resistance or non-adherence of the Vishaka Guidelines, it is available to the distressed people to move toward the individual High Courts.
As you would note from over, the meaning of 'sexual harassment' under the POSH Act is sufficiently wide to cover both direct or inferred sexual conduct which may include physical, verbal or even written conduct. The key distinctive element is that the direct is undesirable and unwanted by the beneficiary. It incorporates quid pro quo sexual harassment, a type of sexual blackmail (which whenever deciphered in English, would signify 'this for that'). In a regular circumstance of quid pro quo harassment, the respondent being an individual in power, pressurizes the lady employee (typically a subordinate) for sexual favours in return for headway in the work environment or threat of adverse employment action. The definition likewise incorporates reference to creating an 'intimidate, offensive or hostile working environment'. An example would be a work environment where an individual is subject to unwelcome comments about her body type resulting in the woman employee feeling embarrassed and unable to work properly. While a few types of sexual harassments, for example, sexual assault are inherently offensive and egregious, and may need to happen just a single time for it to be treated as 'inappropriate behaviour', some different structures may not be effectively recognizable. Since there is no scarce difference test in figuring out what might add up to a 'unfriendly workplace', the burden will lie on the internal council to choose whether the provocation endured by a casualty is adequately serious to have established an antagonistic work space or not. Further, figuring out what establishes 'sexual harassment' relies on the particular realities and the setting where the lead has occurred. In 2010, the High Court of Delhi embraced the view that sexual harassment is a subjective experience and consequently held “A complete understanding of the complainant’s view requires... an analysis of the different perspectives of men and women. Conduct that many men consider unobjectionable may offend many women... Men tend to view some forms of sexual harassment as “harmless social interactions to which only overly-sensitive women would object. The characteristically male view depicts sexual harassment as comparatively harmless amusement.... Men, who are rarely victims of sexual assault, may view sexual conduct in a vacuum without a full appreciation of the social setting or the underlying threat of violence that a woman may perceive.
Compelling from April 23, 2013; the Act is applicable to the 'whole of India'. According to the POSH Act, an ‘aggrieved woman’ in relation to a workplace, is a woman of any age, whether employed or not, who alleges to have been subjected to any act of sexual harassment. The POSH Act applies to both the public and private sectors in India. It inter alia, applies to government bodies, private and public area associations, non-administrative associations, associations doing business, professional, instructive, amusement, mechanical, budgetary exercises, clinics and nursing homes, instructive foundations, sports organizations and arenas utilized for preparing people and furthermore applies to a residence or a house. The definition of an 'employee' under the POSH Act is fairly wide to cover customary, transitory, impromptu representatives, people drew in on a daily wage basis, either legitimately or through an operator, contractors, collaborators, probationers, students, and understudies, with or without the information on the chief business, if for compensation, chipping away at an intentional premise or something else, regardless of whether the terms of work are express or inferred. While the Vishaka Guidelines were bound to the customary office arrangement, perceiving the way that inappropriate behaviour may not really be restricted to the essential work environment, the POSH Act has presented the idea of an ‘extended workplace'. According to the POSH Act, 'workplace' incorporates any spot visited by the worker arising out of or over the span of business, including transportation provided by the employer for the purpose of commuting to and from the place of environment.
The POSH Act has been enacted with the objective of preventing and protecting women against workplace sexual harassment and to ensure effective redressal of complaints of sexual harassment. While the statute aims at providing every woman a safe, secure and dignified working environment, free from all forms of harassment, proper implementation of the provisions of the statute remains a challenge. In spite of the fact that the law forestalling inappropriate behaviour at work environment has been in power since 2013, there remains absence of lucidity on different perspectives pertaining to the statute, including what constitutes sexual harassment, obligations of an employer, remedies/safeguards available to the victim, procedure of investigation, etc. Many are also not fully aware of the criminal consequences of sexual harassment. Lewd jokes, inappropriate comments and so forth are excused as would be expected, with women being hesitant to initiate actions due to apprehension of being disbelieved or ridiculed; which underpins the need for greater awareness and greater enforcement.
Despite the fact that Sexual Harassment at the workplaces has assumed serious proportions, women don't report the matter to the concerned authorities most of the time because of fear of reprisal from the harasser, losing one's business, being criticized, or losing proficient standing and individual standing. In a society where viciousness against women, both inconspicuous and direct, is a result of the patriarchal values, women are compelled to adjust to traditional gender roles. These male centric qualities and perspectives of both women and men represent the greatest challenge in resolution and counteraction of sexual harassment. Workplace sexual harassment, like other forms of violence, is not harmless.
It involves serious health, human, economic and social costs, which manifests themselves in the overall development indices of a nation. While the official figures for women's work participation are low, a great part of the work that women's do isn't recorded in official accounts. It is argued1 that where this is to be caught, ladies' general work cooperation would be 86.2 percent. While the official data 2 shows that women's work participation rate is around 25.3 percent in rural regions and 14.7 percent in the metropolitan zones, gauges demonstrate that there is a huge workforce of women, accordingly there is a need to make sure about their work environment and qualifications. Given, that 93 percent of women workers are employed in the informal sector, they stay unprotected by laws.
Without any laws or systems to ensure them, proactive measures are needed to make their working environments safe. It is settled that guaranteeing safe working conditions for women prompts a positive effect on their participation in the labor force and builds their efficiency, which thus benefits the country all in all. Financially, enabled ladies are key to the country's overall development and this must be accomplished on the off chance that it is guaranteed that ladies' workspaces across all sectors and all over the country have a safe and secure climate for work. It is significant too to guarantee that the accentuation is on prevention instead of reformatory activity. This calls for widespread awareness on the Act among bosses, administrators and the workers themselves. Frequently, women workforce may confront sexual harassment yet may not be aware that it is a breach of their privileges and that there is something they can do about it. They have to realize that they can do something about it. Then there are others, who may accept that it is a personal issue that should be settled by individuals involved. So as to change this order of things, it is earnest that measures are taken to change mentalities and perspectives by creating awareness about what comprises sexual harassment and the steps that can be taken to address it.
By Sanya Thareja
(Army Institute of Law, Mohali. 2nd Year)