Author: Sneha Yadav, III year of B.A.,LL.B.(Hons.) from ICFAI University, Dehradun
Regardless of the occupation they hold, sexual harassment is a widespread issue that affects all women worldwide. However, because the legal system is inactive, nothing is done to protect these women. Not only that, but women who live in those nations with advanced legal systems also deal with issues like being dismissed from their jobs, being mocked, societal pressure, or promises of desired promotions, among others, they are therefore rendered speechless. It is used to remind women that they are weaker than males and is about male domination over women. The biggest obstacle to reducing sexual harassment in a culture where violence against women is used as a demonstration of the patriarchal ideals at play is due to these beliefs held by males. According to studies, sexual harassment affects one in three working women.[i]
This issue affects all nations today. No female employee is secure, and they lack a sense of security. Many nations' laws have undergone changes to better protect female workers from sexual harassment. 12,510 new allegations of workplace sexual harassment were filed with the U.S. Equal Employment Opportunity Commission and equivalent state agencies in 2007 alone.
Power dynamics at work make sexual harassment worse and are entrenched in cultural norms. Legal changes have little chance of being effective unless workplace sensitization is sufficiently emphasised. Workplaces must develop their own detailed procedures for handling sexual harassment. A system and a path for redress ought to be set up beforehand rather than putting committees together after the court gets involved.[ii]
India is a democratic country. Article 21 of the Indian Constitution states that everyone has the basic right to live with dignity. However, there is no statute that addresses sexual harassment expressly. Laws are unable to bring the victims justice. The Indian Supreme Court has heard a number of cases, but none of them have resulted in new statutes against sexual harassment. In Vishakha's case, the Supreme Court attempted to establish guidelines in 1997. These guidelines had some success since the Supreme Court in this instance claimed that distinct laws were necessary but that they weren't given the proper consideration.
Sexual harassment includes any unwanted physical, verbal, or non-verbal conduct of a sexual nature, including:[iii]
a) Physical contact and advances;
b) A demand or request for sexual favours;
c) Sexually coloured remarks;
d) Showing pornography; and
e) Any other sexually motivated behaviour, whether expressed directly or impliedly.
Laws that talks about Sexual harassment
Sexual harassment is prohibited under Indian law because it infringes on women's basic rights to equality with men and to live in dignity under articles 14 and 21, respectively. Although there are no particular laws in India to prevent sexual harassment at work, there are certain provisions in other pieces of legislation, such as the Indian Penal Code (IPC), which protects against sexual harassment of women[iv]:
Section 294 addresses offensive behaviour and music in public spaces.
Section 354 addresses physical or verbal violence against women
Section 376 addresses rape
Section 510 deals with speaking or acting in a way that offends a woman's modesty.
The legislature also approved the Indecent Representation of Women Act to further safeguard the rights of women (1997)[v]. Although sexual harassment cases have not been addressed by this legislation, several of its rules can be applied in one of two ways:
1) A person shall be subject to a minimum of two years in jail if they harass another by displaying books, pictures, paintings, videos, etc. that contain obscene representations of women.
2) This act's Section 7 penalises businesses that depict women in an indecent manner, such as by presenting pornography.
The harassed women may also file a lawsuit in civil court for torts including mental distress, physical abuse, loss of revenue from the victim's work, etc.
An example of quid pro quo sexual harassment is when a woman is harassed at work in exchange for advantages and sexual favours. This might result in punitive acts like demotion and having the woman work in challenging conditions. Another is "hostile working environment," which requires employers to create a welcoming workplace for female employees and forbids sexist graffiti, sexual comments that contain pornography, and brushing against female workers.
Indian case law on sexual harassment
The following cases were heard by Indian courts, and the verdicts in the majority of them encouraged women to file more complaints than they had in the past:
1) Apparel Export Promotion Council v. A.K Chopra[vi]
In this case, the Supreme Court ruled that sexual harassment is a form of gender discrimination against women and that any attempt or act of molestation by a superior qualifies as sexual harassment.
2) Mrs. Rupan Deol Bajaj v. Kanwar Pal Singh Gill[vii]
The definitions of modesty and privacy have been altered as a result of this case, making it illegal to harass or interfere with a woman's personal or professional life.
The Supreme Court established the following rules in this case, recognising both a private damage to a specific lady and a breach of her basic rights. These rules are important because they mark sexual harassment as a distinct type of illegal conduct for the first time. Until any additional law in this area is approved by parliament, these are applicable to all workplaces. These are the regulations
Every company has a responsibility to give every woman employee a sense of security.
The government ought to enact stringent laws and rules that forbid sexual harassment
Any such behaviour should be met with disciplinary discipline, and the offender should also face criminal charges.
The organisation should have a well-designed complaint procedure for the resolution of the victim's concerns, and it should be given a fair amount of time
In order to prevent victims from feeling embarrassed while discussing their difficulties, this complaint process should take the shape of a complaint committee, which must be led by a woman and include at least 50% female members.
In order to prevent victims from feeling embarrassed while discussing their issues, this complaint process should take the shape of a complaint committee, which must be led by a woman member and have at least 50% female committee members. A third party should participate in this complaint committee in the form of an NGO or other organisation with experience in this area. The government must receive an annual report from this committee as part of its demand for transparency in its operations.
Sexual harassment-related topics shouldn't be taboo at employee meetings and should be openly discussed.
The employer or the person in charge is obligated to take the necessary and reasonable steps to provide support to the victim of sexual harassment occurs due to the act or omission of a third party.
The organisation is responsible for regularly informing female employees about their rights and the new guidelines issued and legislation passed.
Employers in the private sector also need to abide by these rules; they are not just applicable to employers in the public sector.
4)Medha Kotwal Lele & ors. v. Union of India & Ors[ix]
This lawsuit aided Vishakha's case in effectively implementing the recommendations by notifying all states and union territories to provide the appropriate instructions.
Legislation to stop sexual harassment
The first attempt to develop appropriate draught law was done after a few years after the Supreme Court's rules, with significant input from and pressure from women's organisations. The 2005 "Protection against Sexual Harassment of Women Bill" was known as this. But even it fell by the wayside before being superseded by the "protection of women from sexual harassment at workplace bill, 2007,"[x] which put a special emphasis on workplace SH because the 2005 bill was considered too broad and so difficult to administer. Because it defines aggrieved women as "...any female/persons, whether major or minor, who allies that she/they have been victim to sexual harassment," this 2007 measure was not in the spirit of Vishakha. Additionally, there is no mention of third-party harassment in this legislation, which primarily emphasises workplace harassment. In contrast to the Vishakha guideline, which authorised criminal processes for the same, this bill regards sexual harassment as a civil issue. Section 12 (1) of the draught bill, which stipulates that "if the charges of sexual harassment are proved to be untrue, the complainant might be penalised for it," has recently undergone changes. This clause will provide employers a new opportunity to falsify the facts in order to discriminate against women. . Because of the concern that their employers would retaliate against them, it will discourage women from filing complaints against the perpetrator. Therefore, this sentence has to be removed. The aforementioned recommendations can help the vishakha guidelines keep their original intent, but they must also make sure that its reach doesn't grow too wide and raucous.
Ineffective enforcement of the legislation against sexual harassment
Every workplace is required by the vishakha standards to establish a complain committee, however private businesses seldom do so and governmental institutions only do it on paper. The organisations where these committees function have additional major issues since victims have complained that the committee members aren't even aware of their authority, duties, and obligations, which makes it difficult for the victim to receive justice. The employer's mentality is well ingrained since they assume that anything like this cannot occur in their workplace, which is why the women's complaint goes unanswered. People used to make fun of her, which prevented her from receiving justice or a fair hearing. The criminal provisions used in the majority of sexual harassment cases are sections 354 and 509 of the IPC, although these laws are only partially effective (as evidenced by the Mrs. Rupan Deol Bajaj v. Kanwar Pal Singh Gill decision). As a result, we may conclude that workplace sexual harassment is not strongly prohibited by law. There have been several measures developed (by the national commission for women, women's organisations, and the government)[xi], but it is still unclear which one will best accomplish the goal. The Ministry of Women and Child Development is now debating the proposed Protection of Women against Sexual Harassment at Workplace, 2007 document. Women's organisations have proposed the following ideas to amend the legislation:
To offer members of the complaints committee procedural training.
To amend Sections 11 (no action will be taken if the accusation against the respondent is untrue) and 12 (action will be taken against the complainant if a local committee determines that the allegation against the respondent is false) of the Agreement.
Measures to Prevent Sexual Harassment
1. A fundamental prerequisite for the implementation of any law protecting women in society is a shift in public opinion. By putting legislation into effect, unwanted sexual activity is protected. All levels of workers should practise sexual harassment prevention, and it should be ensured that female employees work in a supportive atmosphere. We advise taking the following actions in order to prevent sexual harassment at work.
2. Women should be encouraged to report sexual harassment if they feel it is affecting them in any way and invited to do so. They should be made aware that their complaints won't be laughed at or threatened in any way.
3. The employer should constantly be afraid of any financial or reputational loss that may result if this sort of action takes place in his organisation. Additionally, we believe that a distinct anti-sexual harassment policy should be developed that specifically addresses this problem.
4. The committee must always be fair while dealing with different members of the organisation.
5. A well-established mechanism for complaints that is in direct contact with the female employee should exist. Women shouldn't be embarrassed to voice their complaints about the difficulties they are having at work. The complaint committee should treat any complaint of this nature seriously, and action must be done in a timely manner.
6. Women employees should not be afraid to report any sex-related harassment, and it is their responsibility to notify the complaint committee right away of any such behaviour.
7. The complaint committee has a responsibility to keep every complaint private.
8. Every organisation ought to educate both male and female employees on sexual harassment. Employee comfort is increased and a hostile environment is helped by the mutual learning. The effects of sexual harassment on women ought to be covered in this training as well.
9. For the rules and procedures developed against sexual harassment to be successfully implemented, a commitment is needed from all levels of the organisation.
10. Every worker needs to be aware that it is his legal obligation to give every female employee a sense of security at work.
11. He should be aware that any harassment of his female employee will have a negative impact on her well-being, self-esteem, and potential at work, as well as lead to her quitting her position.
Conclusion
In India, workplace sexual harassment is a major problem, thus it's important to give female employees a supportive environment. Separate legislation should be passed by the government to address this problem. It should be aware that women workers make up a significant portion of the working population in India, and that it is the responsibility of the government to ensure their safety at work. Employers and managers need to devise new tactics to safeguard the company against this threat. Government and employers should make sure that women are treated equally and that there is no gender discrimination at work. The emergence and mutilation of sexual harassment may be minimised with effective policy implementation. By observing other organisations' tactics, one organisation can modify its strategy for dealing with sexual harassment. This will lessen or end the hiccups brought on by this damaging offence. Government should be aware that while separate laws may not result in gender equality, a legislation against sexual harassment would greatly aid women in their fight. Finally, we want to stress the importance of women not accepting things as they are since it is now necessary to speak up against all forms of injustice done to them.
Social acceptability is very important factor for dealing with these cases. There should be no shame or hesitation among the victim women’s to come forward and tell the society about their problems they faced. Awareness among the public to speak up against this kind of act should be made so that they can become courageous enough to speak up for themselves.
[i]https://web.archive.org/web/20130302094016/http://articles.timesofindia.indiatimes.com/2012-09-04/india/33581408_1_internal-complaints-committee-physical-contact-and-advances-sexually-coloured-remarks [ii]http://www.ilo.org/asia/info/public/WCMS_220527/lang--en/index.htm [iii]https://humanrights.gov.au/our-work/sexual-harassment-workplace-legal-definition-sexual-harassment [iv]https://www.latestlaws.com/bare-acts/central-acts-rules/ipc-section-354a-sexual-harassment-and-punishment-for-sexual-harassment [v]https://www.refworld.org/docid/3ae6a8d57.html [vi]https://www.hurights.or.jp/english/human_rights_and_jurisprudence/2011/01/india-apparel-export-promotion-council-v-chopra-air-1999-sc-625.html [vii]https://indiankanoon.org/doc/579822/ [viii]https://www.legalserviceindia.com/legal/article-374-case-analysis-vishaka-and-others-v-s-state-of-rajasthan.html [ix]https://indiankanoon.org/doc/48293767/ [x]https://prsindia.org/files/bills_acts/bills_parliament/2010/draft_sexual_harassment_bill.pdf