Sexual harassment at workplace is an extension of violence in everyday life and is discriminatory and exploitative as it affects women’s right to life and livelihood. It is a violation of fundamental rights of a woman to equality as per Articles 14 and 15 & her right to live with dignity enshrined in Article 21 of the Constitution of India.
Due to globalization, liberalization the role women in various workforce has been extended. Sexual harassment of women is a global phenomenon prevalent both in developed as well as in developing countries. Cutting across religion, culture, race, caste, class and geographical boundaries it has spread like virus in the society. It, being offensive to human dignity, human rights and gender equality, has emerged as a fundamental crisis the world over. It is a complex issue involving women, their perceptions and behavior, and the social norms of the society which emerges from gender discriminatory attitudes and is a complex interplay of gender, power and sexuality.
Today, women in India are showing progress in almost all the fields such as education, economics, politics, media, art, space and culture, service sectors, science and technology, etc. As the role of women has shifted from household work to commercial world, offences against women are also increased day by day. Inspite of rising incidences of sexual harassment, their reporting is almost nil as women fear loss of personal & professional reputation and livelihood owing to the social stigma. As a result of growing importance of this issue S. 354A was added to the IPC through the way of Criminal Law (Amendment) Act, 2013 which enlists the acts which constitutes the offence of sexual harassment. They are:
∙ physical contact and advances involving unwelcome and explicit sexual overtures;
∙ a demand or request for sexual favours;
∙ showing pornography against the will of a woman
∙ making sexually coloured remarks Earlier, there were no related laws in the Indian Penal Code that could be evoked. There were three sections in Indian Penal Code viz. S. 94, 354 and 509 to deal with such crimes. However, these related laws are framed as an offence that either amount to obscenity in public or acts that are seen to violate the modesty of women. While Section 294 IPC is a law applicable to both men and women, the latter two are specifically oriented towards women.
INTERNATIONAL LEGISLATIVE FRAMEWORK
The following standards and frameworks include key contents on promoting equality and addressing sexual harassment:
Universal Declaration of Human Rights, 1948: Articles 1, 2 and 7 speak about equality in dignity, rights and freedoms and equal protection against any discrimination
ILO Discrimination (Employment and Occupation) Convention, 1958 (No. 111) aims to protect against discrimination in employment and occupation on the grounds of sex, race, colour, religion, political opinion, national or social origin. In its general observation of 2003, the ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR) has emphasized that sexual harassment is a form of sex discrimination and should be addressed within the requirements of Convention No. 111. In the view of the gravity and serious repercussions of sexual harassment, the CEACR has urged governments to take appropriate measures to prohibit sexual harassment in employment and occupation and has provided elements of a definition of sexual harassment
International Covenant on Economic, Social and Cultural Rights, 1966 enjoins all states to guarantee rights enunciated in it without discrimination of any kind. States must ensure equality between women and men for the enjoyment of all economic, social and cultural rights established in the Covenant. The right to fair conditions of work is enshrined in Article 7
United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), 1979: Article 11 prescribes States to eliminate discrimination against women in the field of employment and to ensure equality of men and women. While sexual harassment is not yet covered by a specific international instrument, the CEDAW Committee in its General Recommendation No. 19 in 1992 has qualified it as a form of discrimination on the basis of sex and as a form of violence against women.
UN Declaration on the Elimination of Violence against Women, 1993: Article 1 of this Declaration defined “Violence against women” as any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life. It also included sexual harassment and intimidation at work, in educational institutions and elsewhere as part of violence against women. The Declaration stated that such violence encompasses, but is not limited to, the following: “…physical, sexual and psychological violence in the community including rape, sexual harassment and intimidation at work, in education institutions and elsewhere”.
NATIONAL LEGISLTIVE FRAMEWORK
Workplace sexual harassment in India, was for the very first time recognized by the Supreme Court of India in its landmark judgment of Vishaka & Ors vs State Of Rajasthan & Ors . Vishaka and other women groups filed Public Interest Litigation against State of Rajasthan and Union of India to enforce the fundamental rights of working women under Articles 14, 19 and 21 of the Constitution of India. The petition was filed after Bhanwari Devi, a social worker in Rajasthan was brutally gang raped for stopping a child marriage. The Supreme Court of India created legally binding guidelines basing it on the right to equality and dignity accorded under the Indian Constitution as well as by the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).
SEXUAL HARRASSMENT OF WOMEN AT THE WORKPLACE (PREVENTION, PROHIBITION AND REDRESSAL) ACT, 2013
In 2012, India saw increased and strong calls for addressing violence against women, with the increasing number of reported cases of sexual harassment and violence against women. In this context, the Sexual Harassment of Women (Prevention, Prohibition and Redressal) Act 2013 was enacted to provide protection against sexual harassment of women at workplace and for preventing and addressing complaints of sexual harassment. The Act recognizes that sexual harassment results in the violation of a woman’s fundamental right to equality under Articles 14, 15 and 21 of the Constitution which provide for equality before law, prohibition of discrimination on grounds of religion, race, caste, sex or place of birth and protection of life and personal liberty. The Act includes key definitions and measures to be taken by different stakeholders for preventing and addressing sexual harassment at the workplace, which is further explained in Chapters III, IV, V, and VI of this guide. Section 28 of the Act mentions that its provisions shall be in addition to and not in derogation of the provisions of any other law for the time being in force. Therefore, this guidebook should be read along with the Vishaka Guidelines, as well as rules when they are notified by the Government. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 deems it the duty of the employer, as well as other responsible persons in work places or institutions to “provide protection against sexual harassment of women at workplace and for the prevention and redressal of complaints of sexual harassment and matters connected therewith or incidental thereto”.
This implies that these individuals are responsible to:
∙ prevent or deter the commission of acts of sexual harassment within the workplace
∙ provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment by taking all required steps.
The duties of an employer and/or the appropriate Government towards the prevention of sexual harassment in the workplace have been explicitly laid down in the Act as follows:
∙ Provide a safe working environment at the workplace which shall include safety from third party (outsiders) coming into the contact at the workplace
∙ Display penal consequences of sexual harassment
∙ Display information about the grievance handling mechanisms including about the Internal Committee
∙ Organize workshops and awareness programmes at regular intervals for sensitizing the employees with the provisions of the Act
∙ Organize orientation programmes for the members of the Internal Committee
∙ Treat sexual harassment as misconduct under the service rules and initiate action for such misconduct. In addition to the above, the Act mentions that Government offices will also be responsible for the following:
∙ Advance the understanding of the public of the provisions of the Act
∙ The Central and State Governments are mandated to develop relevant IEC and training materials and organise awareness programmes to advance the understanding of the public on the provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013.
∙ Formulate orientation and training programmes for the member of the Local Complaints Committee.
PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012
This Act defines a child14 as any person below the age of 18 years. It provides protection to all children under the age of 18 years from the offences of sexual assault, sexual harassment and pornography, all of which have been clearly defined in this law.
Section 11 of the Act deals with Sexual Harassment. In this section, a person is said to have committed sexual harassment at the workplace upon a child, when such a person with sexual intent i) utters any word; makes any sound, makes any gestures or exhibits any object or part of body with the intention that such word, sound, gesture or part of body will be seen or heard by the child, ii) makes a child exhibit his body or any part of his body, iii) shows an object or any type of print, visual or other material to the child for pornographic purposes, iv) repeatedly or constantly follows, watches, stalks or contacts a child either directly or through electronic, digital or any other means, v) threatens to use a real or fabricated depiction of any part of the child’s body or involvement of the child in a sexual act, through any form of electronic, film, or digital media or any other mode, vi) entices a child for pornographic purposes or gives gratification for the same. Whoever commits sexual harassment upon a child shall be punished with imprisonment for a term which may extend to three years and shall also be liable to be fined. The Act casts a duty on the Central and State Governments to spread awareness through media including the television, radio and the print media at regular intervals to make the general public, children as well as their parents and guardians aware of the provisions of this Act.
India is rapidly advancing in its developmental goals and more and more women are joining the work force. The recognition of the right to protection against sexual harassment is an intrinsic component of the protection of the women’s human rights. It is all a step towards providing women independence, equality of opportunity and the right at work with dignity. Sexual harassment at the workplace is a social challenge that needs to be addressed. It is important to enhance the awareness of employers and employees on the existence of forms of sexual harassment at the workplace, preventive measures, and legal framework on preventing and addressing sexual harassment. Dissemination and awareness raising activities should be regularly conducted and evaluated in order to improve best practice on how to address sexual harassment in the workplace, and also to forewarn and inform of forms of sexual harassment to enable potential victims to avoid them. Enhancing training courses on sexual harassment and providing documentation or a handbook on the prevention of sexual harassment at the workplace can help in combating it.