As before the days introduced globalisation in front of the new generation, men were used to be considered as the sole-achievers of the family. As the time flew, the position of women in the society radically developed with a strong imprint on the world. With the influx of freedom for women stepped in, the problem of sexual harassment at workplace buckled up for the mainstream joining with various presumptions and different dimensions to get a hold on.
Women are not the problem. They’re the solution. —Sheryl Wudunn
The concept of sexual harassment inculcated from misogyny of patriarchal mindset which is being followed by the society in the lead of inherent powers. On the other, there is no importance given to the act due to which the legal changes are hardly being amended for the prevention. In our society, it is a challenge to curb the sexual harassment because the analytical data and statistics shows that 1 out of 3, each and every women who is working independently is being sexually harassed at the workplace or being touched by the silver-lining of it at a certain point of time.
Although the law preventing sexual harassment at workplace has been in force since 2013, there remains lack of clarity on various aspects pertaining to the statute, including what constitutes sexual harassment, obligations of an employer, remedies/safeguards available to the victim, procedure of investigation, etc. Lewd jokes, inappropriate comments etc. are dismissed as normal, with women being hesitant to initiate actions due to apprehension of being disbelieved or ridiculed; which underpins the need for greater awareness and greater enforcement.
Need of the hour: It is being important to amend the comprehensive policies in the respect with particular workplace on how the instances of sexual harassment can be dealt with. Instead of roughly assembling the orders, it would be much more preferable for the committees to route towards the establishment of a redressal system in place.
The main emphasis of this article is to enlighten the readers about the concept of sexual harassment at workplace, the evolution in respect with the landmark cases and the legal provisions amended by the Indian Legislature for the prevention and redressal.
India is being considered as a democratic country in which the citizens are entitled for the basic fundamental right and legal immunities for the prevention from any kind of injustice.
Whether on the part of legal resources, Article 14, 19 and 21 of the Indian Constitution provides the basic and necessary principles for the person i.e. Right to live a dignified life, Right to Freedom in every possible manner and Right to Equality provided on every ground. The discrimination on any ground is not being tolerated by our Constitution itself but the practices are still growing and making their space in our society due to which the mindset of the people are being filled with toxicity.
However, the term ‘Sexual Harassment at workplace’ was firstly recognized by the Supreme Court of India in the landmark judgment of Vishaka v. State of Rajasthan in which certain guidelines were laid down by the court because of the absence of specific laws dealing particularly in this matter. In the respect of this, Supreme Court of India directed the Union of India for the framing of a specific act including the rules and regulations regarding the said activity which took place with the victim at her workplace. But the irony is being settled down because the laws and regulations were amended after 16 years of passing the landmark judgement of Vishaka’s Case.
The Game Changer: Vishaka & ors. v. State of Rajasthan & ors.
In 1992, Bhanwari Devi, a dalit woman employed with the rural development programme of the Government of Rajasthan, was brutally gang raped on account of her efforts to curb the then prevalent practice of child marriage. This incident revealed the hazards that working women were exposed to on a day to day basis and highlighted the urgency for safeguards to be implemented in this regard. Championing the cause of working women in the country, women’s rights activists and lawyers filed a PIL in the Supreme Court under the banner of Vishaka.
In this case, Supreme Court observed the violations of the Article 14(2) along with Article 19(3)(i)(g) and Article 21(4) of the Indian Constitution. While putting the light on the credibility of these articles, it was found that the basic fundamental right i.e. Right to life and Right to live dignified life was being hampered in the case by the accused.
After taking all the possibilities into account, Supreme Court included a statement in the judgment –
“Women have the fundamental rights towards the freedom of sexual harassment at workplace”
With the addition on this, Supreme Court also focused on the –
‘Gender-Equality Principle’ amongst the people showing up in the society so that no further discrimination activity would take place in the society as well as at the workplaces.
After the judgement of Vishaka’s writ petition was delivered by the Supreme Court, it was being mandated to the legislature to draft well-defined rules and regulations in respect to Sexual Harassment at workplace for women so that we can take an initiative for building a safe & healthy working environment for them.
After all the struggle, POSH 2013 was being enacted by the government which provides the protective measures for women against the sexual harassment at workplace and includes the assistance regarding prevention & redressal of the complaints filed and all the cases that are connected incidentally or directly in nature.
It envisages the development of the different branches working for the redressal of the complaints filed with the banner of sexual harassment of women at workplace including –
- Internal Committee – As per to the POSH Act, every employer is required to develop an “Internal Committee” for the women where they can approach for reporting the matter about sexual harassment so that complete help and guidance can be provided to them for the redressal. If any employer fails to develop an IC, company will face the repercussions of the negligence.
- Local Committee – As per to the POSH Act, on the basis of district level, government is required to setup a “Local Committee” who will redress and investigate the matters related to sexual harassment form the sector which is being unorganised in nature or where the establishment of IC is not done. LC is being the special reference for domestic workers.
Why these committees are ‘MANDATORY’
It provides the 3 basic steps for the prevention of sexual harassment –
- It ensures a place where women employees could seek redress.
- It sets a clear message to the workplace that such complaints would be enquired into by a specially designated committee with external expertise.
- It prevents the series of litigation as followed.
Section 9: Complaint of sexual harassment
An aggrieved woman files a specified complaint have to submit 6 certified copies of the complaint in written form, along with the documents that will fall under the supporting evidences including the names with addresses of the individuals entitled to be the witnesses for Internal Committee or Local Committee, in the span of 3 months, starting from the respective date of the incident, including all the other series happened in the incident.
Prior reporting of sexual harassment incident is technically important so that a strict action can be taken into account against the wrong doer from authorities on receiving a complaint.
Upon receiving the said receipt of the complaint, a copy of complaint is being provided to the respondent in the span of 7 days.
Prior to this, the employer is being entitled to take specific action on the behalf of recommendations provided by the Internal Committee or Local Committee in the span of 60 days of the provided receipt as per to the inquiry report.
Section 13: Inquiry Report
As per to the Section 12 sub-clause 3, it is being said that when the internal committee or local committee reaches out for the conclusion after proving all the allegations of respondent, the committee will direct the employer or the district officer to commence out the punishment or any term as followed –
- to take action for sexual harassment as a misconduct in accordance with the provisions of the service rules applicable to the respondent or where no such service rules have been made, in such manner as may be prescribed;
- to deduct, notwithstanding anything in the service rules applicable to the respondent, from the salary or wages of the respondent such sum as it may consider appropriate to be paid to the aggrieved woman or to her legal heirs, as it may determine, in accordance with the provisions of section 15.
Section 15: Determination of Compensation
The Internal Committee or the Local Committee, as the case may be, shall have regard to—
(a) The mental trauma, pain, suffering and emotional distress caused to the aggrieved woman;
(b) The loss in the career opportunity due to the incident of sexual harassment;
(c) Medical expenses incurred by the victim for physical or psychiatric treatment;
(d) The income and financial status of the respondent;
(e) Feasibility of such payment in lump sum or in instalments.
 Ms. G v. ISG Novasoft Technologies Ltd. Madras High Court (Crl.R.C.No.370 of 2014 order dated 02.09. 2014. Original Petition No.463 of 2012
This article is authored by Yumna Chand, Fourth-Year, B.A. LL.B (Hons.) student at JIMS, School of law, GGSIPU
Also Read – Domestic Violence versus Harassment – The Greater of The Two Evils