This article is written by Shreya Srivastava who is pursuing a Certificate course in Advanced Criminal Litigation & Trial Advocacy from Lawsikho.
Introduction to sexual harassment at workplace
Workplace. Harassment. Both terms are frequently used together. The term ‘Sexual harassment’ is subject to different interpretations and this is a Universal problem across the world, be it a developed, developing or underdeveloped nation. Sexual harassment can be said as any act amounting to unwelcome conduct of a sexual nature making it offensive, humiliating and intimidating for a person resulting into sexually permeated/hostile working environment1. A clear conduct of sexual harassment can be unwanted kissing, touching of breast or genitals, butt slapping, rubbing oneself sexually around another person, requests for sexual favours, making sexually explicit comments or gestures, uninvited massages and catcalls etc. while the repeated subtle forms majorly ignored by employees is enough for this distress which includes:
- Compliments for appearance;
- Commenting on attractiveness of others;
- Discussing/asking about one’s sex life;
- Spreading sexual rumours;
- Making sexual jokes and sexually coloured remarks;
- Circulating nude photos2.
These gestures when questioned are alarmed by the specific statements such as “they asked for it”, “they didn’t mean to” or “they liked it” being propagated within our society. Isolation, threats and disbelief continue to silence the reporting of sexual harassment at workplace. The prevalence of sexual harassment in the workplace underscores the impact of rape culture and historical oppression.
Legal framework to deal with sexual harassment at workplace
Legislature evidently has come forward in making sexual harassment illegal and protecting the victims through various legal provisions of numerous statutes at all workplaces.
Indian Constitution– Fundamental right is violated at every instance of sexual harassment. Article 14 and 15 are loud enough to construct an equal and sexually resistant environment. Article 19(1)(g) affirms all citizen’s right to be employed in any profession and carry out any occupation. Right to life with dignity and liberty under Article 21 gives an essence of respecting every gender following any profession being under any status of living in a safer environment3.
Indian Penal Code– Criminal Law Amendment Act, 2013 inserted Section 354-A in IPC particularly giving a definition of sexual harassment and related offences along with the punishments for the same. Addition of all four consecutive sections from 354-A to 354-D are only aiding us to understand how legislation is interested to a fault in protecting the rights of women which is abused by unwelcome physical contacts, explicit sexual overtures, demand and request of sexual favours4; forcing or abetting her to be naked5; dissented watching or capturing of women’s images6 and stocking despite her clear refusal order disinterest. The punishment under these sections include an imprisonment term for 3 years to a maximum of 7 years with fine.
Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013– The guidelines released in Vishakha case7, termed as the Vishakha Guidelines by Supreme Court for ensuring women’s safety in workplaces, were adopted and enacted by the legislature as the POSH Act, 2013. The intention of this Act is explicitly mentioned in section 3(1) which explains that workplaces are bound to restrict any sort of sexual harassment within regards to women. It includes women employees both from organised and unorganised spaces like private sector or non-governmental organizations8. Residential places such as houses also comprised as a workplace for domestic workers. It is the policy for protection of sexual harassment along with its prohibition of unwelcome behaviour, its prevention and the detailed framework for its redressal.
The Act not only focuses on the harasser, punishment and women’s safety but also furnishes employer with a greater responsibility and liabilities of protecting his or her employees and taking action against sexual harassment inclusive of the further requisite step toward its prevention. According to this Act, any workplace with more than 10 employees should have an Internal Complaints Committee (ICC) and a Local Complaints Committee (LCC) in every district. If a woman makes a complaint about an act of harassment, the inquiry has to be completed within 90 days according to the Act. Every office provides a transportation facility provided by the workplace; the victim has the right to complain under this Act. The punishment for conviction under this act is one to three years of imprisonment and fine.
Filing complaint under IPC
Sexual harassment under IPC is an offence of cognizable nature9, making the police in authority to arrest a person without warrant and even start an investigation on their own. As per the procedural laws in India, any person (including victim, her relatives, stranger) who has knowledge of the act or offence committed can report about its commission. This can be done either by providing the information to police in form of FIR with further investigation and trial thereof or may proceed with complaint before the jurisdictional Judicial Magistrate involving prosecution by private persons.
Registration of FIR– The victim who experienced the crime can inform the police orally by going in person to the police station or even through telephone. The police officer receiving the information without avoiding his duty will register the offence when disclosed otherwise will be subjected to action against him; herein that police officer must be a woman police officer/any woman officer10. As per the case of sexual harassment committed/attempted where the victim is disabled in any way possible shall be benefited with the process of recording of information at her residence or at a convenient place of a choice11. If the officer in charge of the police station refuses to register the FIR the informant can approach the superintendent of police of concerned district12. If both local police station and superior officer refuses to register the FIR, the informant can approach the Magistrate seeking direction to investigate13 in form of an affidavit14. Even if the Magistrate passes an Order refusing to direct such investigation or police is inactive on their part, further matters can be filed into Writ Petition / Petition for direction before concerned High Court and seek direction for registration of FIR15.
Complaint to Judicial Magistrate– A victim/person having knowledge about the commission of sexual harassment can file a complaint under section 200 of CrPC. Magistrate taking cognizance upon complaint examines the complainant and the witness, if any, further is reduced to writing and signed by complaint and the witnesses along with the Magistrate. If the learned Magistrate is satisfied with/without inquiry/investigation for sufficient ground to proceed he will issue summons to the accused and proceed with inquiry and trial. If Magistrate refuses to issue a process and dismiss the complaint, the aggrieved person can approach the sessions court by filing a revision petition.
Complaint filed under both POSH and IPC
Both POSH and IPC have made clear provisions on sexual harassment. IPC has a wider coverage, unlike POSH for sexual harassment, and is not limited to workplaces only. As the rules of POSH are for remedies, the IPC penalises the same offence. So undoubtedly, one can file the complaint under both POSH and IPC for better or subjective reliefs as per their needs.
The judgments of plentiful cases have encouraged women to register more complaints:
- Vishakha v. State of Rajasthan16– Bhanwari Devi, a lower caste social worker for women’s development programme was allegedly gang raped for trying to stop a child marriage in her village. Supreme Court through this landmark judgement stated that every instance of sexual harassment is a violation of fundamental right. It was thought to be necessary and expedient for employers as well as other responsible persons in workplaces to observe certain guidelines to ensure prevention of sexual harassment. The case laid down guidelines and named it Vishakha Guidelines to be implemented until legislation is passed to deal with the issue17. They were in regards to the following:
- It is the duty of every employer to deliver a sense of security to every woman employee.
- As preventive steps, a regular awareness be made among women employees about their rights.
- Any such act should result in criminal proceedings against the wrongdoer.
- The organisation should have a well set up complaint mechanism for redressal of complaints made by the victim.
- Necessary and reasonable steps to be taken in support of the victim when are subjected to 3rd party harassment.
- Apparel Export Promotion Council v. A.K. Chopra18– PSU Export Council Chairman, AK Chopra, sexually assaulted his subordinate woman employee by touching inappropriately and molesting in hostel lift. In a departmental inquiry, he was found guilty. Supreme Court, even on his request to visit victim’s house and tender unqualified apology for misbehaving, maintained his act as outrageous and amounted to sexual harassment without sympathy. He was therefore dismissed.
- Medha Kotwal Lele v. Union of India19-This case helped the Vishakha’s Case to implement the guidelines successfully by issuing notices to all States and Union Territory to impact the necessary steps.
There have been many instances where more women showed up speaking for their miseries. A step towards equality helped numerous victims in filing petitions and being benefitted by the enactment. A recent example where the Supreme Court found that RAW (Research and Analysis Wing) delayed and improperly handled an ex-intelligence woman officer’s sexual harassment complaint. She was awarded Rs. 1 Lakh as compensation. This clearly proves the provisions are moving in a positive direction while neglecting some exceptional cases.
Situations in other countries
Under Australian law, companies are also held vicariously liable for sexual harassment by employees in many cases. Sex Determination Act is amended to expand the protection against sexual harassment. Britain in its Sex Determination Act itself prohibits the same and is even extended for transsexual person. According to Zimbabwe’s Labour Relation Act, sexual harassment is an unfair labour practice. Denmark’s law looks both man and woman as equal where any action which changes the balance in status includes sexual harassment but Brazil is set apart from most countries where harassment is dealt under civil law.
Matters of workplace harassment have gained momentum among practitioners and researchers as it is becoming one of the most sensitive areas of effective workplace management, because a significant source of work stress is associated with aggressive behaviours at workplace20. The issue of sexual harassment cannot be addressed by mere enactment of laws. Sincere efforts need to be made in overcoming stereotypes, narrow mindedness and gender biasness.
All we need to learn for a better environment is treating every employee or staff member with the amount of respect and dignity we aspire for ourselves. Objectifying languages should be avoided. A change in attitude with a sense of security among every person could aid in bringing healthier and tranquilized surroundings at workplaces. Despite initial hardships, women are panning out from their diffidence. Sensitization of moral values should be the centrality of any institution. There exists a harsh reality too that sexual harassment knows no gender. It does not need to be motivated by sexual desire either but just needs to be based on victims’ gender. Law should be made more stringent with increased applicability and gender-neutral.
- Sex Discrimination Act,1984
- Anshul Arbaz, “Sexual Harassment at Workplace”
- “Protection of Women from Sexual Harassment at Workplace”, Arun Kumar
- Section 354-A, Indian Penal Code (IPC)
- Section 354-B, IPC
- Section 354-C, IPC
- Vishakha and Ors. v. State of Rajasthan and Ors., AIR 1997 SC 3011
- Section 2 of the POSH Act
- Schedule 1 of Criminal Procedure Act (CrPC)
- Section 154 of CrPC
- Section 154(1)(a) of CrPC
- Section 154(3) of CrPC
- Section 156(3) of CrPC
- Priyanka Srivastava and Anr. v. State of U.P. and Ors., 2015
- Section 482 of CrPC
- Vishakha and Ors. v. State of Rajasthan and Ors., AIR 1997 SC 3011
- A Brief History of the Battle Against Sexual Harassment at Workplace, 7th December, 2013
- AIR 1999 SC 625
- 2013, 1 SCC 297
- Tehrani, Noreen (Aug. 2004), British Journal of Guidance and Counselling
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