Unsolicited and unwanted acts of a sexual nature, also known as “eve-teasing”, are not a new phenomenon in India. Sexual harassment is rooted in cultural practices and is exacerbated by power relations at the workplace. Sexual harassment at the workplace does not only cause disastrous psycho- social and physical hardships to the victim, but also affects adversely the performance and reputation of an organisation. Sexual harassment of women is prevalent both in developed and developing countries. Harassment of a sexual nature is an infringement on life and liberty and is a form of violation of fundamental rights to equality under Articles 14 and 15 of the Constitution of India, the right to life and to live with dignity under Article 21 of the Constitution, and the right to practise any profession or to carry on any occupation, which includes a right to a safe environment.
As more women take up professional work, offences against them at the workplace are also increasing. Cutting across religion, culture, caste, class and geographical boundaries, such sexual harassment has spread like a virus in every society.
In India, a woman is sexually harassed every 12 minutes, but the legal system is still sleeping over it. While the majority of cases of sexual harassment in the workplace are perpetuated by men against women, no woman or man should have to tolerate such conduct as it violates the respect and dignity of a person. The issues of sexual harassment at the workplace received public attention mainly after the Supreme Court’s landmark judgment in Vishakha v/s State of Rajasthan case in 1997. The judgment laid the foundation of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. The Hon’ble Supreme Court in its verdict held employers responsible for protection of women employees from sexual harassment at the workplace, and issued comprehensive guidelines (widely known as Vishakha guidelines) enjoining them to take appropriate measures to curb this pernicious practice.
As sexual harassment at the workplace is considered as violation of a woman’s right to equality, life and liberty, it discourages women’s participation in professional work, thereby adversely affecting their social and economic empowerment and the goal of inclusive growth. Therefore, to suppress such conduct in India, the legislature has taken substantial measures by formulating fundamentals for every organisation which are to be followed, namely:
Education about Workplace Harassment
Prohibition from Workplace Harassment
Prevention from Workplace Harassment
What is Sexual Harassment at the Workplace?
After 16 years of the landmark judgement in the Vishakha case, the legislature enacted the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013. As per the Act, sexual harassment is deﬁned as any unwelcome sexually determined behaviour, such as:
Physical contact and advances
A demand or request for sexual favours
Sexually coloured remarks
Any other physical, verbal or non-verbal conduct of a sexual nature
The Sexual Harassment of Women (Prevention, Prohibition and Redressal) Act 2013 states that if the following circumstances occur or are present in relation to, or connected with any act or behaviour of sexual harassment, it may amount to sexual harassment at the workplace:
Implied or explicit promise of preferential treatment in her employment
Implied or explicit threat of detrimental treatment in her employment
Implied or explicit threat about her present or future employment status
Interference with her work or creating an intimidating or offensive or hostile work environment for her
Humiliating treatment likely to affect her health or safety
In other words, the law has provided that any insult or inappropriate remark, joke, insinuation and comment on a person’s dress, physique, age, family situation, etc; or a condescending or paternalistic attitude with sexual implications undermining dignity; or any unwelcome invitation or request, implicit or explicit, whether or not accompanied by threats; or any lascivious look or other gesture associated with sexuality and any unnecessary physical contact such as touching, caresses, pinching or assault, will amount to sexual harassment.
For a long time there has been victim-blaming, witch-hunting and shaming, but now women are ﬁghting back. The electronic and print media have become extremely responsive to issues of sexual harassment. The landmark Vishakha judgment was given after activism triggered by the case of Bhanwari Devi, a social activist who was brutally gang raped in a village of Rajasthan. The court said that the incident revealed the hazards to which a working woman may be exposed and the depravity to which sexual harassment can degenerate. The court emphasised the urgency for safeguards by an alternative mechanism in the absence of legislative measures. For the effective enforcement of the basic human right of gender equality and guarantee against sexual harassment and abuse, the court in exercise of its power under Article 32 of the Constitution laid down the guidelines and norms commonly known as the Vishakha Guidelines. These applied to all workplaces and institutions, i.e., every employer or person responsible for the staff was obliged to curb the menace of sexual harassment at the workplace.
It is the duty of every employer to deliver a sense of security to every women employee in the organisation to prevent or deter the commission of acts of sexual harassment, and to provide procedures for the resolution, settlement or prosecution of acts of sexual harassment. Any act of such nature should result in disciplinary actions and criminal proceedings against the wrong doer. The organisation should have a complaint mechanism for the redress of complaints which should be resolved within a reasonable time. Every employer should organise an employer-employee meeting to discuss issues related to sexual harassment at the workplace.
The complaint mechanism should be in the form of a committee headed by a woman and at least 50% of the committee members being women, so that victims do not feel ashamed while communicating their problems. This complaint committee should also have a third-party involvement in the form of an NGO or some other body which is familiar with this issue. There is a need of transparency in the functioning of this committee and for that there is a requirement of submission of annual report to the government department concerned on the complaints received and action taken on them.
Issues relating to sexual harassment should not be a taboo in the workers meeting and should be discussed positively. It is the duty of the organisation to make aware the female employees of their rights by regularly informing them about the new guidelines issued and legislation passed. The employer or the person in charge is duty bound to take necessary and reasonable steps to provide support to the victim.
These guidelines are not limited only to government employers but also to employers in private sectors.
Further, the court emphasised that these guidelines would be treated as the law declared by the court under Article 141 of the Constitution.
The protection against sexual harassment and the right to work with dignity are basic human rights of every woman in society. All women who draw a regular salary, receive an honorarium, or work in a voluntary capacity in the government, private sector or unorganised sector, come under the purview of these guidelines.
The writer is a student of Law at Central University of Kashmir. [email protected]