ISSUE OF THE SEXUAL HARASSMENT AT WORKPLACE: VAISHALI MALHOTRA

ISSUE OF THE SEXUAL HARRASMENT AT WORKPLACE

Author: Vaishali Malhotra

ISSN: 2581-8465

Abstract

The laws of India have strived to provide for the protection of women against sexual harassment. If any person violates the laws there are civil and criminals remedies. In the case of the Vishaka guidelines have also been discussed in relation to such offences. These guidelines provide protection to women when there did not exist any specific legislation against sexual harassment. eradicate these sorts of cases government should take necessary action and measures to tackle this issue. Initiative must be taken by oneself also. Therefore, is a vital need to Stop Sexual Harassment at the workplace.

Introduction

The first thing we should know that harassment can mean different things in different contexts. One can consider unprofessional or rude behavior as harassment, but rude behavior is not necessarily unlawful sexual harassment. A safe workplace is a legal right of every individual. Any act of sexual harassment to a woman at the workplace is not only the violation of her constitutional rights but as well as the violation of her human rights also. Sexual harassment, like sex discrimination, violates rights. Day by day the cases on sexual harassment are increasing in the corporate world. Although the term ‘sexual harassment’ can be used with the context of the workplace. Sexual harassment is faced by both men and women. The person who does this is maybe of the same or the opposite sex and maybe a supervisor or the non-employee or the owner of the company. This does not have to be only of a sexual nature; indeed, sexual harassment includes unwelcome and offensive comments about gender. simple teasing, offhand comments, or isolated incidents that are not very serious does not prohibit by the law. When sexual harassment is so frequent or serve that it creates a hostile or offensive work environment or when it results in adverse employment, such as the victim being fired or demoted that’s illegal. Sexual harassment adjudicated as an issue of employment law. Sexual harassment is less violent than other forms of sexual violence like rape. Sexual harassment is socially acceptable. A normal reply by the victim to the defendant is feeling depressed, angry the victim has to take serious action against them. In the absence of the penal and civil law in India, providing adequate and specific protection to women from sexual harassment in the workplace, in the year 1997, the Supreme court of India in the case of the Vishaka Vs. State of Rajasthan passed a landmark judgment, lying down the guidelines to be followed by the establishments in dealing with complaints about sexual harassment.

Meaning of Sexual Harassment

Sexual harassment includes a request for sexual favors, sexual advances, and the other physical or verbal harassment of a sexual nature in the learning environment or in the workplace, accordingly Equal Employment Opportunity Commission. In India, the law, however, penalizes and recognizes sexual harassment only against the women. The dictionary Merriam Webster defines sexual harassment as “unwelcome and uninvited verbal or physical behavior a sexual nature by a person especially in authority towards subordinate (such as an employee or student)” the word “unwelcome” says that such conduct has not been solicited or initiated by the employee. Sexual harassment occurs only when one person has power over another person. It can occur also among peers. Sexual harassment occurs in the learning environment or the workplace, like school, university, college, etc. In any circumstances should not be tolerated and it should be reported in the first instance soothe actions can be taken immediately against the perpetrator.

The sexual harassment act can be of two forms:

Quid Pro Quo (Literally ‘this for that’)

Implied or explicit promise of preferential/detrimental treatment in employment
Implied or express threat about her present or future employment status

Hostile Work Environment

Humiliating treatment likely to affect her health or safety
Creating a hostile, intimidating or an offensive work environment

Historical background

At the work place sexual harassment is widespread. All around the world women have face instance of sexual harassment, calling for a strong law to curb these acts in India.

Development in the Statute

Before the introduction of the POSH LAW, except the India penal code, 1860 there was no statutory remedy that directly addressed workplace sexual harassment.

Section 354 (Outraging the modesty of women)
Section 509 (Insulting the modesty of women)
The victims who were sexually harassed at the workplace should go to the police and file a suit.

In the leading judgment of Rupan Deol Bajaj vs. K.P.S.Gill(1995) which is related to the Indian penal code,1860 in which there is an elaboration of sexual harassment as a whole. In this case, there was an IAS officer who was a victim of the sexual harassment by the superior officer than her and in which there is a lack of proper provision of the same and falls under section 353, 509 which was rejected by the High Court. In this case it was shown that there must be a proper provision for sexual harassment at workplace in the Indian Penal Code, 1860.

The International Conventions to protect violence against Women had been in place for a long while. In the case of the Vishaka vs. State of Rajasthan the Guidelines drew from them in the following ways:

General Recommendation 19 convention of Elimination of All Forms of Discrinination Against Women (CEDAW)

India is also a part of this convention, has taken aspects of equality of women in the workplace, unwelcome sexually-determined behavior and gender-specific violence and it is also adopted in the POSH Act.

International labour Convention on Discrimination (Employment And Occupation)

On 3 June 1960 India ratified this document. By this convention, India has to prohibit and prevent any gender-based discrimination in the workplace.

12 Guidelines given by the Court has been described below:

Duty of employer:

It is the duty of the employer or other responsible person in the work place or other institution to deter or prevent the commission of acts of sexual harassment by taking the steps.

Definition of sexual harassment:

Sexual harassment includes unwelcome, sexually determined behavior as:

Physical contact and advance.
A demand or request for sexual favors.
Sexually colored remarks.
Showing pornography.

Preventive steps:

All employers of workplace whether the private or public sector should take action to stop the sexual harassment.

Criminal proceedings:

Under the Indian penal code or under any other law, when such conduct amounts to a specific offence then-employer has to take serious action in accordance with law by making a complaint.

Disciplinary action:

Where such conduct amounts to misconduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules.

Complaint Mechanism:

Whether or not such conduct constitutes an offence under law or a breach of the service rules, an appropriate complaint mechanism should be created in the employer’s organization for redress of the complaint made by the victim. Such a complaint mechanism should ensure the time-bound treatment of complaints.

Complaints Committee:

The complaint mechanism, referred to in (6) above, should be adequate to provide, where necessary, a Complaints Committee, a special counselor or another support service, including the maintenance of confidentiality. The Complaints Committee should be headed by a woman and not less than half of its members should be women. Further, to prevent the possibility of any undue pressure or influence from senior levels, such Complaints Committee should involve a third party, either NGO or other body who is familiar with the issue of sexual harassment. The Complaints Committee must make an annual report to the Government department concerned about the complaints and actions were taken by them. The employers and person in charge will also report on the compliance with the aforesaid guidelines including on the reports of the Complaints Committee to the Government department.

Worker’s Initiative:

Employees should be allowed to raise issues of sexual harassment at a workers‟ meeting and in other appropriate forum and it should be affirmatively discussed in employer-employee meetings.

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) in a suitable manner.

Third Party Harassment:

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.

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 employers in Private Sector.

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

Statutes under Sexual Harassment

International convention on laws against Sexual Harassment.
Universal Declaration of Human Rights. (UDHR)
Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)
The United Nations Fourth World Conference on Women.
Indigenous and Tribal Peoples Convention.

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

This Act came into force after the case named Vishaka vs. State of Rajasthan, 1997. It is an act of the legislature that was passed on 3rd Sep,2012. The bill got the assent of President on 23rd April 2013. This act came in force from 9th December 2013. This act is primarily based upon the guidelines stated under Vishaka vs. State of Rajasthan, 1997 for the protection of women from Sexual Harassment. According to the report given by the International Labour Organization (ILO) that every Indian employer is bound by this statute.

SCOPE

This Act is applicable to whole India.

OBJECTIVES

Sexual Harassment at workplace is consider violation of women various rights:

Right to equality
Right to life and liberty
This act ensure hostile working surroundings for women employed under organized as well as unorganized sector
This act provides protection to the victims of Sexual Harassment
To develop and implement policies and schemes for the prevention of Sexual Harassment at workplace
To provide a permanent mechanism for the Sexual Harassment at workplace cases
This act provide the constitution of Complaint Committee
This act provides compliances with the directive led down by the apex court- Supreme Court.

FOUNDATION OF THIS ACT

Human Rights by International Conventions and Instruments
Constitution of India
Article 11 of the CEDAW

Landmark Case Laws Related to Sexual Harassment at Workplace

1.Tuka Ram And Anr vs State of Maharashtra, AIR 1979 SC 185 (Mathura Case)

Facts of the case:

In Mathura rape case, a young tribal girl named Mathura was allegedly raped by two policemen while she was in custody. It was the incident of custodial rape, took place on March 26th, 1972, where the girl was raped in Desai Gunj Police Station in Maharashtra.

Issues raised:

This case raised so many issues in the context of Indian rape laws that were earlier existed in prevalent Criminal law like the issue of consent, the question of burden of proof, the reference to two-finger test and the reference to the girl’s sexual history.

What was held?

Sessions Court passed the judgment in favor of defendants and held them not guilty. It was held that Mathura gave her consent voluntary as she was habituated to sexual intercourse. Learned Sessions Judge found that there was a major difference between “sexual intercourse” and “rape” so, it was a case of sexual intercourse in which she had consented voluntary and not rape. Thus, Case was further appealed in the Bombay High Court which took note of all the findings arrived during the trial in Sessions Court. High Court appreciated the observation given by the learned Sessions Judge that there is a major difference between sexual intercourse and rape but they forgot to observe that there is a world of difference between “consent” and “passive submission”. On the ground of such observations, the court held that the defendants were guilty of rape and the consent given was not voluntary and it was due to serious threats by policemen. Later, the case went to the Supreme Court, where the court acquitted the accused and set aside the judgment passed by the Bombay High Court. The Court stated that no marks of injury were found on the person of the girl, there were no signs of any struggle, any resistance, also from the shreds of evidence it can be shown that the girl had not been put in fear of death or hurt so the consent would be considered as free or voluntary. Also, the girl was habituated to sex so, it may be possible that she might have incited the cops. So, it was concluded and held by the Supreme Court of India that the sexual intercourse which was in question in the given case is not proved to amount to rape.

Legal Changes brought in the Indian rape law:

Due to such rationale behind the judgment, so many protests and huge public outcry took place which ultimately led to the amendment in Indian rape law. At the time when the Mathura rape case did take place, the rape laws in our country were heavily biased towards rapists. The main question which was raised after this judgment was regarding the concept of consent because earlier it was so difficult for women to prove that she had not consented to any sexual intercourse. So, after the judgment of this landmark case, the Criminal Law (Second Amendment) Act, 1983 came which brought so many changes in the Indian rape law like:

Criminal Law (Second Amendment) Act, 1983 inserted section 114(A) in the Indian Evidence Act, 1872 which states that in a prosecution for rape where it has been already proved that the sexual intercourse by accused did take place, if the victim says that she had not consented to the sexual intercourse then Court shall presume that she did not consent as a rebuttable presumption of law.
Section 376 of Indian Penal Code, 1860 underwent a change in which sections 376(A), 376(B), 376(C) and 376(D) were added which were further amended by Criminal Law Amendment Act, 2013.
Act added the provision for “custodial rape” under section 376(2) of Indian Penal Code, 1860 for the offenses which take place when a victim is in the custody of the state.
The Person liable under section 376(2) shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine.
Act amended the idea of the burden of proof which always lies on the prosecution. After the amendment, in cases of rape where sexual intercourse was already established, the burden of proof will lie on the accused.
The Act introduced section 228A in the Indian Penal Code, 1860 which prohibits any publication regarding the identity of rape victims and any matter through which the victim’s identity could be known, subsequently amended by Criminal Law Amendment Act, 2013.

So, Mathura rape case was monumental in context of both social and legal perspective which sparked huge protests and public outcry for the very first time in India for the cases of rape at a very large level and which further led to so many reforms in the Indian rape law via the Criminal Law (Second Amendment) Act, 1983.

Conclusion

As per my views, there is a proper need for implementation of the above said Act. As there is an increase in the number of Sexual Harassment cases day by day. To eradicate these sorts of cases the government should take necessary action and measures to tackle this issue. The initiative must be taken by oneself also. Therefore, is a vital need to Stop Sexual Harassment at the workplace.

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