SEXUAL HARASSMENT OF WOMEN AT WORKPLACES IN INDIA AND THE LAWS GOVERNING IT – YASH KEDIA & ANJALI VISHWAKARMA

SEXUAL HARASSMENT OF WOMEN AT WORKPLACES IN INDIA AND THE LAWS GOVERNING IT

Author: Yash Kedia

C0-Author: Anjali Vishwakarma

The ICFAI University, Dehradun.

ISSN: 2581-8465

Abstract: –

Gone are the days when men used to be the one who brings home the bacon. Now, both men and women are working together with equal rights and opportunities. After globalization, there has been a significant change in the status of women worldwide. Women are also stepping out of their houses to work and earn. But this exposure is making these working women more prone to sexual harassment at the hands of men.

Sexual harassment is a complex issue, that results in the violation of the basic fundamental rights of women, that is Right to Equality under article 14 and 15 of the constitution of India and also her Right to Life and to live with Dignity under article 21 of the Indian constitution. Measures have been taken and are still being taken to deal with the consequences of such a problem.

In this paper, the origin of sexual harassment has been taken from the case of Bhanwari Devi together with some parts of the theVishaka judgment, which resulted in the enactment of THE SEXUAL HARASSMENT OF WOMEN AT WORKPLACE (PREVENTION, PROHIBITION, AND REDRESSAL) ACT, 2013. This paper discusses the reason behind sexual harassment of women, and the #ME TOO movement, which took the world by storm by this issue. Finally, the current paper recommends that the need of this era is to look closely over this issue and provide for better preventive measures that could better access the situation.

Keywords:-Bacon, Globalization, Era, Strenuous, Prone, Consequences, Recommends

Introduction: –

No doubt, there is a massive increment in the rate of women employment worldwide. But this massive increment has also led to many evil practices, such as gender discrimination, especially, sexual harassment at workplaces. By the changing time, sexual harassment at workplaces is taking new shape and the male colleagues, employers, supervisors always tries to find new ways to make contact with their women employees either by touching them, or by talking to them in a seductive manner which creates an unhealthy atmosphere and also affects the working and productivity of that particular women.

Sexual harassment at workplaces has been recognized as one of the, most cruel offences as well as the most frightening form of violence that almost every working women experiences at some point of time, either in their office or on the way to their work. But there are very few registered cases or public records for these types of incidents because if the affected women try to loud her voice against it, she becomes subject to worst crimes like assault, rape, acid attack, murder, etc. And surely these incidents led to the devaluation of women and the domination of men.[1]

Background:

In India, all this started with the case of Bhanwari Devi, who was a social activist in one of the villages of Rajasthan. She worked under the state government’s Women’s Development Programme (WDP) as a Saathin(Friend) since 1985, to stop all the evil practices that were being done against women in the society. During the course of her work, she tried to stop the marriage of a girl who was merely one(1) year old but was unsuccessful. Her trying to stop the marriage, made her the enemy of that family and the men of that family wanted to teach her a lesson. She also reported all this to the local authority, but no action was taken by them and she was brutally gang-raped by those men. Later, based on the facts of the case and also the judgments of the trial court and the High court, a PIL was filed by other women groups and an NGO named VISHAKHAagainst the State of Rajasthan and the Union of India, before the apex Court. Subsequently, the three judges bench of the apex court passed a landmark judgment in 1997, which is commonly known as the Vishakha Judgement. The guidelines of this judgment later came into an extensive form with an enforcing law named, The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. All the provisions given under this act has provided working women with a sense of security from sexual harassment at their workplaces, irrespective of their age, color, caste or employment status. By providing them with a safe and secure working atmosphere, the organization could get the best outcome from these female employees.

Reasons behind sexual harassment at the workplace: –

There are numerous reasons behind the sexual harassment that takes place in our country but the most important one is the culture and value system and the relative power and status of the men and women in our society. Talking about values and principles, there’s a huge difference between how both genders are brought up. The way in which men and women are brought up in India strongly influences their behavior in society. Women often lack confidence because of the way they have been socialized and are customized to suffer in silence.

Right from the beginning women are taught that ” They are supposed to be in the custody of their father when they are children, they must be under the custody of their husband when married and under the custody of her son in old age or as widows. In no circumstances, she should be allowed to assert herself independently. This kind of upbringing makes these women dependant on men. They are so much brainwashed from the very beginning that they believe without hesitation that they are inferior to men and hence never revolt but accept this attitude of men and suffer without saying a word. While men are exposed to numerous opportunities, women are often given less exposure and thus make these women vulnerable to crimes like sexual harassment.

The fault lies in the past. It’s our thinking about the female gender that there is so much suffering on the part of these women. After two thousand years of ” civilization “, women are still considered inferior to men by most cultures even in developed or developing countries. Though men and women are the sides of the same coin and contribute together for the family and upliftment of the society, women are looked down with bias and prejudice even in their own family and men tend to carry the same belief in themselves and as a result, they harass women who emerge superior to them.

According to patriarchy, women belong to the kitchen and they should not go out of their dens to earn a living because this is the supposed “Men’s World”. This kind of atmosphere makes men superior to women and men often take advantage of this. Such patriarchal viewpoints create an atmosphere that allows men the freedom of sexual harassment in the workplace, while women remain vulnerable. Women are taught to suffer in silence and not to raise their voices. Because of this discrimination, they develop a personality of dependency, insecurity, low self-confidence, and inferiority.

The root cause of sexual harassment against women lies in the patriarchy system in our country. For centuries, women have been deliberately denied the opportunities for growth in the name of religion and sociocultural practices. At the social-political plain, women suffered from the denial of freedom even in their homes, repression and unnatural indoctrination, an unequal and inferior status. All these things coming together made men arrogant and powerful in such a manner that they think it’s easy and pretty normal to sexually harass a woman and getting away with it because women are supposed to suffer in silence. Even if a woman raises her voice, she is subjected to humiliation, torture, and exploitation by society. This patriarchy system made women powerless and these women are often insecure about their position in the organization and this fear makes them resign to their fate rather than raising voices against the sexual harassment.

Despite the patriarchy system in our country, there has been a change in the power relations between men and women.

  • Women are grabbing every possible opportunity and are emerging superior to men and with women being empowered men are feeling insecure and threatened by their career advancement and to overcome this feeling of insecurity, some men resort to harassing the women at the workplace.
  • Another reason behind sexual harassment at the workplace is also the growth of women in the male-dominated fields. Men sometimes are under stress because even after putting their best they lack behind whereas a woman with little talent gets the recognition. This sometimes causes frustration and men resort to sexual harassment to overcome their stress.
  • Another aspect of sexual harassment also lies in the power game that exists at every workplace, where, Men take advantage of their higher position and sexually exploit women in exchange for giving them recognition or promotions and sometimes these women are threatened not to raise their voices or meet with dire consequences. As a result due to the fear of reprisal from the harasser, losing one’s livelihood, being stigmatized or losing professional standing and personal reputation, these women do not report the matter to the concerned authorities in most cases.

Women accept these with mouth shut because they have a family to support. This clearly shows that the persons with inferior job position in an organization are more prone to sexual harassment than a person in power. That fact, that most of the sexual harassment isn’t about always sex but sometimes men harass women to show the domination of male folk, which clearly shows, what patriarchy has done to our country.

  • Another major reason behind sexual harassment is the misperception about the friendly nature of women. It is clearly evident that men in any organization began to harass their female colleagues who are quite open and friendly in nature. Men have this misperception that these kinds of women are open to any kind of behavior and they will accept sexual favors from them without any hesitation. Women who are quite frank and open to their male colleagues are perceived as having sexual interest.
  • Lesser job opportunities for women: –

At present, we are quite well versed with the fact that there is a large number of women populations, who are with higher academic degrees rendering for the job, compared to available job positions. So, when these women hunt for a job they are faced with different types of behaviors. One of the most common is asking for sexual favors in return for a job. Not only this, even if a woman gets a job she is further sexually exploited for promotions, salary increases and other conditions of employment.

The above causes clearly show that women either employed in a multinational company or in any sector are conditioned to face sexual harassment by their male colleagues.

Laws and Acts related to Sexual Harassment in India: –

Sexual harassment at the workplace is an extension of violence in everyday life and is discriminatory and exploitative, as it affects women’s right to life and livelihood. Taking Discrimination against the women into consideration, the United Nations Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) was adopted by the UN General Assembly in 1979, which was ratified by India on 9th July 1993, with two (2) declarations and one (1) reservation.

Declarations:
I )With regard to articles 5 (a) and 16 (1) of the Convention on the Elimination of All Forms of Discrimination Against Women, the Government of the Republic of India declares that it shall abide by and ensure these provisions in conformity with its policy of non-interference in the personal affairs of any Community without its initiative and consent.[2]

II)With regard to article 16 (2) of the Convention on the Elimination of All Forms of Discrimination Against Women, the Government of the Republic of India declares that though in principle it fully supports the principle of compulsory registration of marriages, it is not practical in a vast country like India with its variety of customs, religions, and level of literacy[3]

Reservation:

With regard to article 29 of the Convention on the Elimination of All Forms of Discrimination Against Women, the Government of the Republic of India declares that it does not consider itself bound by paragraph 1 of this article.

1)Provisions under the constitution of India: –

Sexual Harassment is clearly the violation of the Fundamental Rights of women together with all the other rights that are guaranteed to them under the Constitution of India.

The provisions under the Indian Constitution, for the protection of the rights of the women, are as follows[4]: –

  • Fundamental Rights: –
  • Article 14 – Right to Equality
  • Article 15 – No discrimination against any citizen on grounds of religion, caste, sex, race, place of birth.
  • Article 16 – Equality of opportunity for all citizens in matters related to employment or appointment to any office or organization.
  • Article 19 (1) (g) – Right to practice any profession or to carry on any occupation or trade or business.
  • Article 21 – Right to life and personal liberty
  • Other guaranteed rights: –
  • Article 39 – There are certain principles that must be followed by the state, they are

(a) Men and Women equally have the right to an adequate means of livelihood.
(b) Equal pay for equal work for both men & women

  • Article 39 (A) – Equal justice to free legal aid
  • Article 42 – Provisions for just & humane condition of work & maternity reliefs.
  • Fundamental Duties: – 
  • Article 51 (A) – It shall be the duty of every citizen of India—

(e) to promote harmony and the spirit of common brotherhood amongst all the people of India and to renounce practices derogatory to the dignity of women.

2)Provisions under the India Penal Code (IPC), 1860: –

Prior to the “Criminal Amendment Act 2013”, there was no definition on the term sexual harassment in the Indian Penal Code, 1860. But, after the commencement of this act, some subsections were added under the section.354 0f IPC, which defined the term sexual harassment and related offences and also gave the punishments for the same.

Such Sub-Sections are as follows[5]:

Section 354(A) (1) – Defined sexual harassment as –

  1. An unwelcome physical contact and advances, involving unwanted and explicit sexual overtures.
  2. A demand or request for sexual favors
  3. Showing sexual images (pornography) against the will of a woman, or
  4. Making sexual coloured remarks

Section 354(B) – A man forcing and compelling a woman to be naked or undressed.

Section 354 (C) – A man watching or capturing images of a woman without her consent (Voyeurism).

Section 354 (D) – A man, who follows a woman and contacts or tries to contact her, despite a clear instruction of disinterest by such women or monitors a woman through the internet or any other form of electronic communication, commits an offence of stalking.

Sexual harassment can basically be called an attempt to rape. In which a man doesn’t actually commit rape, but the woman upon whom it is done, gets the apprehension of being raped. This apprehension is dealt under section 354 of IPC.

Criminal Proceedings in such cases:

Where such conduct amounts to a specific offence under the Indian Penal Code or under any other law, the employer shall initiate appropriate action in accordance with law by making a complaint with the appropriate authority.

3) The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013: –

Since sexual harassment results in the violation of fundamental rights of a woman as per Article 14, 15 and 21 of the Indian Constitution. So, to prevent this violation, the Government of India enacted The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, This act is an extension of the guidelines given by the Supreme Court (hereinafter SC) of India for the very first time to acknowledge the sexual harassment at workplaces as a Human Rights violation. Further, this act also reflects the commitment of the Indian government to the ratification of the Convention on the Elimination of Discrimination against Women (CEDAW) 9th July 1993.

This act is unique in itself, as it has a broad coverage to prevent all the working women from organized, unorganised, public as well as private sectors, irrespective of their age, color, caste, employment status, etc. The main challenge before the government is the effective implementation of this act.

It provides for the constitution of Internal Complaints Committee (ICC) and Local Complaints Committee (LCC) and both the committees are responsible to prepare an annual report at the end of every year, regarding the lodged complaints, disposal of lodged complaints as well as the pending complaint and to submit the same to the employer and the district officer respectively.

4. Vishaka Judgement: –

In the year 1997, the Supreme Court of India pronounced a landmark judgement in the case of Vishaka&Ors vs State of Rajasthan &Ors[6]commonly known as Vishaka Judgement.

Under this judgement, taking into consideration the facts of the case, the apex court said that, in view of the above, and the absence of enacted law to provide for the effective enforcement of the basic human right of gender equality and guarantee against sexual harassment and abuse, moreparticularly against sexual harassment at workplaces, we lay down the guidelines and norms specified hereinafter for due observance at all workplaces or other institutions, until a legislation is enacted for the purpose[7].

The GUIDELINES and the NORMS prescribed under are as follows: –

I. Preventive Steps are to be taken by the employers at their workplaces: –

All employers or persons in charge of the workplace whether in the public or private sector should takeappropriate steps to prevent sexual harassment. Following steps must be taken by them: –

(a) Express prohibition of sexual harassment as defined above at the workplace should benotified, published and circulated in appropriate ways.

(b) The Rules/Regulations of Government and Public Sector bodies relating to conduct and

discipline should include rules/regulations prohibiting sexual harassment and provide for

appropriate penalties in such rules against the offender.

(c) Appropriate work conditions and environment should be provided to the women employees at workplaces and if any of thewomanemployees is putting any allegation upon anyone then she should have reasonable grounds to believe that she is disadvantaged in connectionwith her employment. In particular, it should ensure that victims or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment. The victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer.

II. Awareness: –

Awareness of the rights of female employees in this regard should be created in particular by

prominently notifying the guidelines (and appropriate legislation when enacted on the subject) suitable manner.

III. Where sexual harassment occurs as a result of an act or omission by any third party or outsider, the employer and person in charge will take all steps necessary and reasonable to assist the affected person in terms of support and preventive action.

IV. The Central/State Governments are requested to consider adopting suitable measures including legislation to ensure that the guidelines laid down by this order are also observed by the employersin the Private Sector.

V. These guidelines will not prejudice any rights available under the Protection of Human RightsAct, 1993.

Accordingly, we direct that the above guidelines and norms would be strictly observed in all workplaces for the preservation and enforcement of the right to gender equality of the working women.These directions would be binding and enforceable in law until suitable legislation is enacted to occupy the field.

Objectives of the study: –

Some of the basic objectives of this paper are as follows:

I.To throw light upon the causes, that results in the sexual harassment of women at workplaces.

II. To investigate and collect the available data and records that show rise or decline in the sexual harassment at workplaces.

III. To make others aware of the laws, rules and regulations that have made to prevent such type of evil practices.

IV. To make the female employees and workers at different working places, able to feel safe and secure in the organization they are working as well as to raise their voice if anyone tries to make any type of physical contact.

V. To make suggestions that address the incidents of sexual harassment of women at workplaces.[8]

CONCLUSION:-

Most women around the world have experienced sexual harassment, assault and violence, or have at times been pushed into a zone where they knew it did not feel right. It is clearly evident from this research paper that sexual harassment has been and still is a workplace problem in the country. According to statistics, a lack of awareness of the available legal procedures is a common problem. The enactment of the Sexual Harassment at Workplace Act in the year 2013 is a significant step forward to protect women from sexual harassment as well as to provide redressal forum to the victims. This act has helped create a healthy and safe environment for women. There are a number of steps that can be taken to tackle and reduce the risk of sexual harassment. There should be a clear sexual harassment policy in every working place. So that no women have to go through the pain of silent suffering., Because failure to recognize that sexual harassment is also a human right issue and that it must be addressed to create an equal and impartial working condition for women. Women also have every right to work in a friendly and congenial environment and when we have achieved this we have indeed empowered our women.


[1]M. P. J. Pereira, E. J. Rodrigues, “Sexual Harassment at Work Place in India Medico Legal Aspects”, J Indian Forensic Med, October-December 2014, Vol.306, No. 4, 2014

[2]UNTC “Ch- 4 Human Rights” “Convention on the Elimination of all forms ofDiscrimination Against Women (CEDAW)(https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-8&chapter=4&clang=_en#EndDec)

3UNTC “Ch- 4 Human Rights” “Convention on the Elimination of all forms ofDiscrimination Against Women (CEDAW).

(https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-8&chapter=4&clang=_en#EndDec)

4The Constitution of India

[5] The Criminal Law (Amendment) Act, 2013, No. 13 of 2013, Sec – 7.

[6] AIR 1997 SC 311

[7]Vishaka&Ors vs State of Rajasthan &Orson 13 August, 1997,AIR 1997 SC 311

[8]IJIRSET, “An Overview of Sexual Harassment of Womenat Workplace in India: An Analytical Study” vol. 6, page no. .3, July 2007.

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