Prof. HS Mishra[1]
Introduction
The recent Delhi gang rape has catapulted majority of discussions on womenâs right in terms of violence and oppression faced by women in India. There have been parallel global developments which also highlight the deplorable position that women hold in our society.[2] As the voices demanding reforms in legal system to make it stronger and effective for protection of women get louder, it will be endeavour of this paper to examine the issue of sexual harassment at the work-place.
Ground Realities
While rape and sexual assault are generally seen as more heinous and grave crimes, there is a far more pervasive problem inform sexual harassment of women at workplace. The problem is unique as it is often thought that âworkingâ women are more empowered and such women would stand up against sexual harassment.
Nothing is farther from the truth. In reality the amount of coverage and reporting that sexual harassment receives is negligible when compared to rape and sexual assault. Sexual harassment at the workplace is rampant but no one talks about it. As part of the survey on Sexual Harassment at Workplaces in India 2011- 2012, it was found that more than 17% of working women in major cities have admitted to facing sexual harassment at workplace. However, most of these women said the harassment wasnât physical.
Part of the reason why sexual harassment at work-place does not receive the attention it deserves is that till date there was no formal legal protection for women against sexual harassment at work-place. Another contributing factor is that for a long time sexual harassment was dealt only under penal laws in India, which necessitated the victim to approach a police station and courts of law for relief.[3]
The perception towards sexual harassment changed when the Supreme Court of India in the case Vishaka v. State of Rajasthan[4]laid down guidelines for combating sexual harassment. It was in this landmark judgment that the Supreme Court for the first time recognized right against sexual harassment as part of right to livelihood and right to equality. After dilly-dallying on the issue for a long time, the Parliament has recently taken steps to tackle the plague of sexual harassment by enacting âThe Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2012â (the âActâ).
Statistics Speak
A recent survey has revealed that there is a high incidence of sexual harassment in both organized and unorganized sectors.[5] Some of the key findings are listed below:
¡ While 87% of the general population and 93% of working women respondents reported awareness of sexual harassment of women at workplace, a majority of the victims didn’t resort to any formal action against the perpetrators. The top three industries unsafe for women are Infrastructure (29%), domestic help (23%) and small-scale manufacturing (16%).
¡ A majority of respondents (both general population and working women) perceived women working in the unorganized sectors to be more susceptible to sexual harassment due to lack of awareness of legislation.
¡ Also, 26% of working women reported to be the sole earning members of their families, indicating that economic vulnerability renders them further vulnerable to harassment.
Society and Values
Many people would put the root cause of problems like sexual harassment as a gradual drop in values system in society. Many amongst the male population look female as object of desire and pleasure. Due to financial situation as well as opportunities available nowadays, in urban India there is a growing trend where both parents are working and end up spending less time with children, which in turn impacts the moral values and ethics which are imparted to the child. It is also felt that these aspects are not given as much importance as they should be in schools and classrooms. This combined with effect of cinema, television, internet and other changes in life style has weakened the moral fiber of the society. Due to falling standards in moral as well as social values significant percentage of men are not treating women with respect and dignity.
What is sexual harassment?
The Honâble Supreme Court in the aforementioned case, relying on the Convention on the Elimination of All Forms of Discrimination against Women defined sexual harassment to include âany one or more of the following unwelcome acts or behaviour (whether directly or by implication) namely:-
(i) Physical contact and advances; or
(ii) A demand or request for sexual favours; or
(iii) Making sexually coloured remarks; or
(iv) Showing pornography; or
(v) Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.â[6]
A combined reading of the definition of âsexual harassmentâ along with Section 3 of the Act shows us that the legislature has not only taken care of the sexual and harassment aspect of the violation, but also focuses on the work-place aspect of the crime.[7]The manner in which terms like âworkplaceâ, âemployerâ, âemployeeâ and âunorganized sectorâ are defined, the intention of the legislature is clear â The Act should apply to all organizations and establishments. It is probably not far from the truth to suggest that there isn’t a single woman who hasn’t faced sexual harassment at some point of time, maybe in the office or on her way to work.[8]However, it is unclear why the legislature has sought to only cover women under the Act. It would be absurd to imply that only women can be sexually harassed at workplace, and not men.
Salient Features : Act
The Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act, 2013 lays down provisions for ensuring safety & dignity of women at workplace. Under the Act, it is the employers’ responsibility to protect the rights of women employees and develop intolerance against sexual harassment.
1. Committees: The Act mandates that each workplace sets up an Internal Complaints Committee to look into the matters of sexual harassment at the workplace, and such committee should be constituted in accordance with Section 4(2) of the Act. The Act also contemplates setting up of Local Complaints Committee at district level for establishments where the Internal Complaints Committee has not been constituted due to having less than ten workers or if the complaint is against the employer himself.
2. Complaints: All complaints to committees mentioned above have to be ordinarily made in writing and within 3 months from the date of the incident of sexual harassment.
3. Inquiry: The Act lays down the procedure to be followed in case a complaint for sexual harassment has been filed. In the event a prima facie case is made out against the respondent, the committee is required to file a complaint in this regard at the police station under Section 509 of the Indian Penal Code.
4. Duties of the Employer: The responsibility on the employer to take adequate measures for ensuring safety of women at workplace is stated. Some of the important actions are as follows:-
(a) Display penal consequences of sexual harassment at prominent place;
(b) Organize workshops for sensitizing employees;
(c) From internal committee/assist local committee for inquiry and take action on report;
(d) Treat SH as misconduct and publish in standing orders; and
(e) Provide assistance to the aggrieved woman.
Critique
As stated previously, the Act is probably the step in the right direction, but it remains to be seen whether it will be an effective tool to curb sexual harassment at workplace. Some of the reservations that the author has are set out below:
1. Criminalization of the offence: One of the major challenges for a woman to get relief in case of sexual harassment is penal justice system. Requiring a woman to approach a police station, which more often than not is a hostile environment, for such a delicate situation seems to defeat the purpose of the Act. Perhaps, the purpose of the legislation would be better served if the legislature had explored options to resolve the disputes and provide relief to women outside the penal justice system.
2. False and Malicious complaints: The inclusion of a provision whereby false and malicious complaints are penalized greatly undermines the purpose of the Act. It may lead to a situation where a woman does not complain by the fear of not able to prove the allegation, for whatever reason, thereby being denied justice. Any legislation is open to misuse, and it is the duty of the legislature to ensure that the law is clearly laid out and not misused.
3. Capacity-Building: The Act contemplates appointment of women, who have experience of social work and are committed to the cause of the women as members of the committees. The author is unsure whether India as a country would have enough number of persons who would qualify to be appointed on the committee. Possibly most organizations would depute the HR Head and the Law officer — who may not have the requisite background or skills, notwithstanding their professional capabilities to tackle the unique problem of sexual harassment.
Conclusion and Suggested Measures
It is going to be a herculean task to change the mindset of people. Some of the suggested measures are listed below:
(a) Creating value system in children with help of parents, grandparents and other family members.
(b) Inculcating right moral and social values in schools and colleges.
(c) Corporate/Organizations implementing the Act in its true spirit and in the right manner.
(d) Capacity building exercises to be undertaken by public and private sector under the Act.
There needs to be an overhaul of the criminal justice system as well as change in the values, morals and perception towards woman in our society. The Act alone would not be able to combat the plague of sexual harassment, and it is up to us as a nation and society to bring the change from within to ensure that
this menace is eradicated from the society.
this menace is eradicated from the society.
REFERENCES
1. Kumkum Sen, What Verma Committee says on sexual harassment at work, February 04, 2013 available at http://www.rediff.com/news/column/what-verma-committee-says-on-sexual-harassment-at-work/20130204.htm
2. BinduShajanPerappadan,Sexual harassment at workplace high available at http://www.thehindu.com/todays-paper/tp-national/sexual-harassment-at-work-place-high/article4144874.ece
3. Aju John, Mediocre law has diluted the spirit of Vishaka, a conversation with NainaKapurwho explains the importance of the Visakha judgment and how the new law on sexual harassment had let India’s women down, March 6, 2013 available at http://www.mylaw.net/Article/Mediocre_law_has_diluted_the_spirit_of_Vishaka/
[1] The author would like to thank Mr. Prateek Mishra, advocate, MMB Legal for his inputs and comments.
[2] On 14 February 2013, a global campaignunder the title of âOne Billion Risingâlaunched across the world. The campaign was initiated by Eve Ensler in light of the comments made by Republican Todd Akin in the build-up to the 2012 US election cycle. For more information, see
[3] Offences of sexual harassment are currently dealt under Section 511 (attempt to rape) and Section 354 and Section 509 (Outraging the modesty of a Woman) of the Indian Penal Code, 1860.
[5] The research was jointly conducted by Oxfam India and the Social and Rural Research Institute, a wing of IMRB International in Delhi, Mumbai, Bangalore, Chennai, Kolkata, Ahmedabad, Lucknow and Durgapur and covered 400 working women.
[7] The U.S. Equal Employment Opportunity Commission defines it as âUnwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when:
a) Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, or
b) Submission to or rejection of such conduct by an individual is used as a basis for employment decisions affecting such individual, or
c) Such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.â
[8] The Act defines workplace to include âany place visited by the employee arising out of or during the course of employment including transportation provided by the employer for undertaking such journeyâ; (emphasis supplied)
