By Piyali Sengupta
Sexual harassment is a serious problem and the Sexual Harassment at Workplace (Prevention, Prohibition and redressal) Act, 2018 marks an important step in recognizing a concern that affects most women. SSexual harassment at the work place is rampant but no one talks about it. In India, @ woman is sexually harassed every 12 minutes.
According to a survey, officially, just 17% of working women in major cities have admitted to sSexual harassment at the workplace. But on the condition of anonymity, 88% of women in IT companies reveal they have faced some form of sSexual harassment.
Usually the complaints are unofficial in nature over and received as anonymous emails, letters and complaints without full details of the cases.
In its zeal to provide an enabling environment for women in the workplace, the legislature has cast the net very wide — sexual gestures, offensive remarks, lurid stares, embarrassing jokes or unsavoury remarks might be among the litany of conduct and expression that could be caught by the new law.
as it has also not been defined in the Act. The situation described above explains as to what constitutes sSexual harassment. In order to determine whether the Act has actually been helpful in combating this dehumanizing Act, the analysis of the position before the Act and post the Act needs to be analysed.
VISHAKHA GUIDELINES: Sexual Harassment
Facts- The Supreme Court Guidelines evoked in the case of Vishaka and others V. State of Rajasthan and others owing to the gang rape of Bhanwari Devi by a group of Thakurs as she attempted to stop a child marriage in their family. Bhanwari Devi was a social worker (saathin) at rural level in a development programme initiated by State Government of Rajasthan, aiming to curb the evil of child marriages in villages. As part of her work, Bhanwari Devi, tried to stop Ramkaran Guijjar’s infant daughter’s marriage. Nevertheless, marriage took place but Bhanwari Devi was not forgiven for her efforts to stop marriage. She was subjected to social boycott, and in September 1992 was gang raped by five men including Ramkaran Gujjar in front of her husband. The only male doctor in the Primary Health Centre refused to examine Bhanwari. At the police station too, the women constables taunted her throughout the night. The policemen then asked Bhanwari to leave her lehenga behind as evidence and return to her village. She was left with only her husband’s bloodstained dhoti to wear.
The trial court acquitted the accused, but Bhanwari was determined to fight further and get justice. She said that she had nothing to be ashamed of and that the men should be ashamed due to what they had done and hence she filed an appeal in the High Court. On December 1993, the High Court said, ‘it is a case of gang-rape which was committed out of vengeance”.This provoked women’s groups and NGOs to file a petition
in the Supreme Court of India. As part of this campaign, the groups had filed a petition in the Supreme Court of India, under the name ‘Vishaka’, asking the court to
give certain directions regarding the sSexual harassment that women face at the workplace.
The result is the Supreme Court judgement, which came on 13th August 1997, and gave the Vishaka guidelines. For this purpose, sSexual harassment includes such unwelcome sexually determined behaviour (whether directly or by 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.
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Implications Of The Judgement
The determination of Sexual harassment at workplace
now was not a difficult task from the victim’s perspective, who was usually a woman. But whether the accused actually meant it in a bad way or did so with a bad faith
was questionable. Some of the methods in which it could be determined were by ascertaining whether the behavior was sexual in nature or whether it was unwelcome or whether the behavior create a hostile or offensive environment. The nature of the act was determined from the point of view of a reasonable person ; as to how would she react to similar situation.
Another major problem with sSexual harassment was that the victims preferred to remain silent because of family pressure (the recent example being of the Tehelka case), societal pressure or the fear of losing one’s job and having a bad name as a result of that and for the obvious fact that investigations are usually very time-consuming and the questions put before the victim in the inquiry are outrageous sometimes.
The Delhi High Court order in its judgement involving S.K. Mallick, Director of National Academy of Audit and Account (NAAA) convicted him although he had contended that he could not be accused of sSexual harassment at workplace as the alleged misconduct woman is Sexually harassed every 12 minutes took place not at the workplace but at an official mess where the woman officer was residing.
The Delhi High Court while dismissing the petition made the following observations in respect of certain key definitions: “Workplace” – The High Court noted that in the case of the private sector, it is common for senior officials to run their businesses from their residences with the advancements in information technology. Therefore, if an officer indulges in an act of sSexual harassment with the employee, it would not be open for him to claim that the act had not been committed at the workplace but at his residence and get away with that argument. (Il) “Any woman” – This expression is broad enough to include women of all ages, including women who may be senior in years and status. The High Court said this in response to a plea by the accused that that he could not be accused of sexually harassing a senior officer towards whom he was not in position to extend any sort of favour.
The Court through the Vishakha judgement empowered and brought out a lot more confidence amongst women to report sSexual harassment cases but still there was lot to be done.
Without prejudice to the generality of the obligation, the Court asked all employers or persons in charge of work place whether in public or private sector should take appropriate and stringent steps to prevent sSexual harassment. It was also obligatory to set up an Internal Complaints Committee. In case of any offence under the Indian Penal Code or under any other law committed by the employee, the employer had to initiate appropriate action in accordance with law by making a complaint with the appropriate authority. But the problem which still remained was the lack of sanction i.e. the employer was not held accountable for not setting of the Inquiry Complaints Committee or incase any action was not taken by the Committee. The Protection of Women against Sexual Harassment Act hence forth was required which makes the employer accountable and these judgements could help provide some much required clarity.
Post Act
The Sexual Harassment of women at workplace ( Prevention, Prohibition and Redressal)Act, 2013.
The increasing work participation rate of women has made it imperative that comprehensive legislation focusing on prevention of sSexual harassment as well as providing a redressal mechanism be enacted.” Women’s groups welcomed tThe law but said there was a need to ensure it was implemented and enforced.
The Act has been enacted with the objective of providing women protection against sSexual harassment at the workplace and for the prevention and redressal of complaints of sSexual harassment. SSexual harassment is considered as a violation of the fundamental right of a woman to equality as guaranteed under Articles 14 and 15 of the Constitution of India and her right to life and to live with dignity as per Article 21 of the Constitution. It has also been considered as a violation of a right to carry out any trade or business under Article 19(1)(g) of the Constitution, which includes a right to a safe environment free from harassment.
Sexual Harassment and Workplace: Definition
Since the ILO emphasized that the definition of workplace should not be restricted to “the physical environment of the workplace” and that it may take place “outside the premises of the employer, at conferences, on business trips or via the telephone or electronic mail” the same has been followed in the Act also. The problem of no-accountability mechanism for the employer has been done away through this legislation.
Salient Features Of The Act
Scope The Sexual Harassment Act is applicable to the both organized and unorganized sector. The definition of “aggrieved woman”, who will get protection under the Act is extremely wide to cover all women, irrespective of her age or employment status, whether in the organised or unorganised sectors, public or private and covers clients, customers and domestic workers as well.
Internal Complaints Committee and Local Complaints Committee The Sexual Harassment Act requires an employer to set up an ‘Internal Complaints Committee’ (“ICC”) or ‘Local Complaints Committees’ (“LCC”) where the ICC has not been constituted, at each office, branch or administrative units, of an organization employing at least 10 employees. The Committee shall consist of a Presiding Officer who shall necessarily be a woman, may be from the same office or any other department. The Committee must consist of minimum half of its members as women. It envisages a conciliation process initially so as to avoid the litigation burdens. Incase, the answer is in negative, the ICC or LCC shall forward a complaint to the Police and get the case registered.
Interim Reliefs Interim measures such as (i) transfer of the aggrieved woman or the respondent to any other workplace; or (ii) granting leave to the aggrieved woman up to a period of 3 months in addition to her regular statutory/ contractual leave entitlement are also available under this.
Advocates included Women lawyers could not avail the protection accorded under the Vishakha judgment because of a mere technicality. Though the court was their workplace, they were not employees of the court, a distinction which put them outside the purview of the anti-sSexual harassment panels set up for the court employees. But the Act, the advocates includes them.
Penalties Section 26(1) of the Act makes the employers accountable to pay a fine upto Rs.50,000 on their failure to constitute an Internal Complaints Committee or contravenes or attempts to contravene any provision of this Act. Repeated violations may lead to higher penalties and cancellation of license or registration to conduct business.
Section 14 prescribes punishment in case of false allegations being made by the woman employee as per the provisions prescribed in the service rules applicable to him or in such manner as has been prescribed. Critical Analysis
The Act makes the employer accountable to pay a fine in the contravention of certain conditions. But the Act does not make it crystal clear as to which authority is the person accountable whether Central Government or any other.
The amount to be paid as fine is quite in adequate and not sufficient to deter the employers from committing such act again.
Journalists’ Network, wrote to the publication in 2003 supporting Mukherjee and highlighted her issue widely. How Just is the Justice.
The Act is completely women-centric and does not take into account the incidents of sSexual harassment that can take place for men. It is indeed a fact that the crimes against women are escalading to impalpable, appalling numbers, however locking up men indiscrimin ately is surely not the answer to all our grievances. We’re assuming all men rape, or harass women. And that every man accused of such harassment is guilty thereof which is in direct contravention to the rights guaranteed by Article 21. Shouldn’t men be protected from sSexual harassment at their workplaces as well? It is definitely about time we come out of our swaddling cloth and break loose from the primitive notion that men don’t get sexually harassed or abused. The Crimin al Amendment Act 2013 has already accepted this to a certain extent and is a step in the right direction.
It has also provided for circumstances like penalty in case of contravention of the provisions and removal from the Committee in certain circumstances, which actually deter the employer from taking steps not in consonance with the provisions of the Act. It protects the male employees from false and baseless allegations by slapping a fine on every such falsely alleging women which is a quite a good inclin ation towards equality. By the new rules released by the Ministry in August, 2013 the guilty man also risks losing a minimum of 10% of his salary every month for a period of institutions a year or in a lump sum which is more than the 5% imposed on the women.
It caters to the needs of the present society by recognizing women’s rights and gives a proper mechanism for protection. It has ended the few decades’ old fight for identifying individual rights in the guise of protecting women as a class. Conclusion
In India, the stark difference of ideologies of treating women as goddesses on one hand and as sex objects on the another is evidently visible to each and every person out there forming the Indian population. Women are also worshipped as goddesses in India. But on the other hand, they are objects of torture and harassment. SSexual harassment is sort of a life pattern that a woman undergoes almost every day till her last breath and when it comes to workplace till her retirement day. Earlier the notion of women being held responsible for luring men to do such activities has atleast now undergone a drastic change which the Sexual Harassment Act is reflective of.
But making SSexual harassment from ‘what things are’ to ‘what things should be’ lies in the hands of the educated people. Becoming immune to such activities is all the more going to have a pervasive harm on the society. Ultimately the job lies on us who understand the professional and real worth of speaking up to fight against such ridiculous incidences whether be it in a workplace or any local transport because silence has never been a solution to deal with problem.