This article is written by Shubhada Sonwalker and Jacob Michael.

Introduction 

Traditionally women in India were conditioned to stay at home, take care of the young while the men were considered the breadwinners. With access to education, better facilities, Increased literacy and the industrial revolution. Women all around the world left the boundaries of their homes and started working. Though women had been working always with their families on farms, as house help, even as babysitters from time immemorial. 

All these were considered secondary activities and were seldom recognised. Women worked without any rights and thus were frequently exploited.

The makers of the constitution recognised this problem and provided the right to equality to all. Irrespective of gender, caste, creed or social status. 

India’s Constitution aims at equality under Art.15 and provides for special laws to be made for the depressed classes and women. The status of women even today is not at par with their male counterparts. We certainly require laws which support women to take their rightful place in society. Gender specific laws in India are made to ensure equity between the genders. 

The Sexual Harassment of Women at Workplace Act, 2013 is a welcome addition amongst the class of such laws. It has received both widespread praise and flak in recent times. 

The research paper is aimed at analysing the effect that this law has had on society. 

It aims to seek answers to potent questions of whether the law has helped cement the place of women in society ? Have there been any ill Effects or not? 

Need 

In an emerging Indian Economy as more and more women started entering the workplace, the malady of sexual harassment has reared its ugly face into many fields. From police and the army to multinational companies to sports– it is regrettable that no field of human endeavour has been left untouched. There was a pressing need for legislation which could protect the rights of these working women. As has been the case with many laws the first time this was brought under the public eye was by judicial activism. 

Judicial Activism 

In the context of sexual harassment, judicial activism reached its pinnacle in Vishakha v. State of Rajasthan (Vishakha). The judgement was unprecedented for several reasons: the Supreme Court acknowledged and relied to a great extent on international treaties that had not been transformed into municipal law; the Supreme Court provided the first authoritative definition of ‘sexual harassment’ in India; and confronted with a statutory vacuum, it went creative and proposed the route of Judicial Legislation. 

Gang rape of Bhanwari Devi 

The incident that lead to a public interest litigation being (PIL) filed in respect of the Vishakha case was the gang rape of a social worker in Rajasthan. Bhanwari Devi was a satin, a grass-roots worker and activist, employed in the Women’s Development Project (WPD) of the government of Rajasthan. In 1992, the Rajasthan government launched a campaign against child marriages, in connection with which the WPD members persuaded villagers to abandon the practice, which is still rampant in Rajasthan. Bhanwari Devi made all possible efforts to prevent the marriage of a one year old girl, but in vain. What ensued for her was worse than a nightmare. There was a complete breakdown of institutional machinery in Rajasthan. The villagers harassed, threatened and socially boycotted Bhanwari Devi.

Then in September 1992, five villagers raped her in the presence of her husband. She sought justice, but faced innumerable hurdles from police authorities. The trial court even went ahead and acquitted the five accused.

This made five NGOs under the name ‘Vishakha’ to file PIL in the Supreme Court seeking detailed directions on how sexual harassment of women at workplace could be prevented using judicial activism.

Reference to international treaties while making the Vishakha Guidelines 

The Vishakha Guidelines served a great purpose as it immediately filled the void of lack of legislations in respect of Sexual Harassment of Women at Workplace. Till 2013 they were the only set of guidelines applicable across India that were specific to this issue. 

Due to them being passed by the Supreme Court and it acting as a court of record it was de facto applicable in the lower courts as well. But, to frame it was a task the three judge bench consisting of J.S Verma (then CJI), Sujata Manohar and B.N Kripal took cognisance of all the international treaties existing at that point. The Constitution of India does not have a precise stand on the value of international treaties that have been signed or ratified by the government, but not implemented via legislation. In ‘Vishakha, the court moved towards a more purposeful understanding of fundamental rights in tune with most of its recent interpretations by affirming that ‘any International Convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into these provisions [The fundamental Rights] to promote the constitutional guarantee’.

Since there was no law relating to Sexual harassment at workplace, the court stated that it was free to rely on the Convention of Elimination of All Forms of Discrimination against Women (CEDAW– signed by India in 1980) in interpreting article-14,19 and 21 of the constitution. To justify the sources the court referred to several sources including the Beijing Statement of Principles of the Independence of Judiciary. A decision of the High Court of Australia and its own earlier decisions. Vishakha was also possibly the first instance in India where International Covenants had been applied to municipal and district level courts directly. Since Vishakha, The Supreme Court has started heavily relying on international Multilateral treaties, particularly those forming part of the Universal Declaration OF Human Rights (1948) and others forming part of International Bill of Rights due to legislative lethargy in spheres of public importance. Often filling legislative voids by exercise of Art 141. 

The Guidelines 

The Supreme Court issued a series of ‘guidelines’ (based on CEDAW) to protect women from sexual harassment at the workplace. These guidelines were to strictly observed in all workplaces (whether in the private or private sector) and would be binding and enforceable in law until suitable laws were made. 

The Supreme Court set out the following significant guidelines:

1. The employer and / or other responsible people in a workplace are duty-bound to prevent or deter sexual harassment and set up processes to resolve, settle or prosecute in such cases.
2. For the first time in India “sexual harassment was defined authoritatively”. The Supreme Court stated that it includes such unwelcome behaviour (whether directly or by implication) such as:physical contact and advances, a demand or request for sexual favours, sexually coloured remarks, showing pornography, and any other physical, verbal or non- verbal conduct of sexual nature. 
3. All employers or persons in charge of workplaces must strive to prevent sexual harassment and if any act amount to a specific offence under the Indian Penal Code 1860 or any other law, they must take appropriate action to punish the guilty.
4. Even if the act is not considered a legal offence or a breach of service rules, the employer should create appropriate mechanisms so that the complaint is addressed and redressed in a time bound manner.
5. This complaint mechanism must, if necessary, provide a complaints committee, a special counsellor or other support service, such as assured confidentiality. The complaints committee should be headed by a woman, at least half of the members should be women. Also, to pre-empt any undue influence from senior levels, the complaints committee must involve a third party (such as a NGO) familiar with the challenges of Sexual Harassment.
6. The employer must sensitise female employees to their rights and prominently notify the court’s guidelines.
7. Even if a third party is responsible for sexual harassment, the employer must take all steps necessary to support the victim.
8. The Central and State Governments should adopt suitable measures to ensure private sector employees implement these guidelines. 

Comparison with the Act 

Most of the guidelines have been adopted verbatim in the Prevention of Harassment of Women in workplace Act 2013. There have been no significant changes except for the clause of out of court settlement, but in this also there is no settlement in return of Money. This seems applicable on paper but its implementation is a big question. 

Also, In the Act, the woman has been allowed to take a leave from office for a period of 3 months from the date of the complaint being filed. While the Man has been asked to respond within the given timeframe while working in the office. The lady (presumably the victim) is allowed additional leave as and when she demands on top of the leaves that she was entitled to as the employee of the company that she is employed with. 

Developments After Vishakha 

A huge amount of cases have cropped up across high courts (and occasionally supreme court) with reference to the Vishakha Guidelines, these seek the establishment of complaints committees, dispute the constitution of complaints committees have already been in place, or challenge orders of dismissal based on the decisions of these committees. 

Apparel Export Promotion Council v A.K Chopra was the first case in 1999 where the supreme court found an opportunity to follow its judgement in Vishakha. The council Chairman was accused of sexually harassing the secretary; though he made repeated attempts. the chairman never actually molested her. On her complaint the employer was fired. On the basis of a writ petition filed by the employer the Delhi High Court took cognisance of the fact that he never actually molested her and did not make any actual physical contact. Thus concluding that he did not actually molest her. In an appeal filed by the council, the Supreme Court reversed the Delhi High Court Judgement, recognising that physical contact was not a prerequisite of Sexual Harassment, given the broad definition under Vishakha. It asserted that sexual harassment compromised the dignity of women and cannot be condoned. It asserted that sexual harassment compromised the dignity of women and cannot be condoned. In addition to the international sources referred in Vishakha, the court also cited the International Covenants on Economics, Social and Cultural Rights and the International Labour Organization’s seminar on combating sexual harassment at work.

The Supreme Court’s refreshingly progressive approach in Chopra marked a transition in the usual stance of Indian Courts. The apex court acknowledged that harassment transcends physical barriers and the effects of mental harassment can be equally damaging. And yet the court’s deep seated insensitivity to women’s issues does come up occasionally.

In DS Grewal v. Vimmi Joshi a colonel of the Indian Army made advances at and wrote inappropriate letters to the principal at an army school. The principal was apprehensive that if she objected to his conduct, he would create a hostile working environment and hinder her employment, including her promotion. Her fears did come true as her services were terminated. The Supreme Court ordered the school management to constitute a three- member complaints committee (as mandated by Vishakha Guidelines) to ascertain if there were any prima facie case against the army officer. If the committee found such a case, it would submit its reports to the army, which would then initiate disciplinary proceedings.

The court also affirmed that the school management was bound to bear the legal costs incurred by the principal (with counsel fee assessed at 50,000) for it had not complied with Vishakha Guidelines to begin with. In the absence of laws relating to sexual harassment Vishakha Guidelines were the only reliable source of action. It acted as a deterrent and ensured strict compliance was done with respect to its provisions. The mere idea of being prosecuted in such a grave issue invited much public ridicule. 

Courts emphasised on the strict compliance on the Vishakha Guidelines and have not viewed alternative mechanisms kindly. In a case where a public company appointed an advocate as an inquiry officer to investigate a complaint of sexual harassment, The Bombay High Court refused to accept the efficacy of the procedures followed and held that the complaints mechanism employed in Vishakha was mandatory.

The Vishakha Guidelines had been applied to almost all forms of formal employment even NGOs and Cooperative societies. As Kerala HC observed the ‘the quality of womanhood does not change by the place she works in be it public or private’.

In yet another shift of stance, The Madras HC held that even in the cases where the allegations of sexual harassment seemed baseless and seemed like an after thought, proper course would be to first refer the issue to the complaints committee. 

Vishakha was indeed the first legislation which defined harassment inclusively and covered all the behaviours which denied a person employment– related benefits due to rejection of sexual Demands (quid pro quo harassment) or creates a hostile work environment (without directly impacting on economic and other benefits).

Double Edged Sword: Instances of Use of the law as a means of Vengeance

Any measure which aims to protect the disadvantaged sections of the society or minorities is likely to be abused, and Vishakha is no different. In the case of Usha C.S v. Madras Refineries, The Madras High Court heard a complaint of sexual harassment made by the employee of Madras Refineries Ltd, a public sector undertaking. The employee alleged that she was denied her study leave with pay, salary and promotion because she rejected the advances of the general manager of her department. After examining the facts the court held that the employees allegations regarding her promotion and study–leave were baseless, as both decisions appeared to have been taken in accordance with the company policy. Further, the complaint committee had been properly constituted, but the employee had persistently delayed the inquiry, therefore, her allegations of sexual harassment were merely a weapon to bargain for a promotion and study leave and pay, contrary to company policy. Highlighting and condemning the misuse of the Supreme Court’s judgement in Vishakha, the court held:

“The employer, who is supposed to keep a vigilant eye on the victim and the delinquent, is not expected to allow the woman to use it as a shield so presented by the apex court as a means to seek vengeance. It is true that we are bound by the decisions of the apex court, but that does not mean that they can be allowed to interpret to suit the convenience of the woman like the petitioner, for personal gain.”

The court thereafter described Vishakha as a ‘double- edged weapon’. In keeping with other decisions on the subject, it affirmed that the court cannot assume that the court cannot assume that an allegation of harassment is correct unless it is first referred to a complaints committee. 

The bench urged the other courts to bear in mind the facts of each case individually, without assuming that the woman is a victim in each case. In fact in this particular case the appellant had a history of unwarranted leaves and absences. Such cases bring light to the anomaly of use of positive laws for harm to a person. Though a lot many researchers are of the view that since the false cases are only 4% or 5% of the whole of the cases filed according to NCRB data That these cases should be ignored and a bigger picture should be looked at. These laws indeed help the woman assert her position in society. 

But similar to Domestic Violence Cases and Dowry Harassment Laws there are a huge number of people who are threatened with false prosecution. Just like women find it difficult to accept and tell the people if she has experienced sexual assault. It is equally tough for a Man who has been falsely implicated to prove his innocence. 

As seen in the famous Rohtak Bravehearts Case, the media was quick to pounce on the story of two women mercilessly beating up their Molesters in a Haryana Intercity Bus, these Men were branded as Demons and were called all sorts of Names. They tried to assert their innocence but to no avail. They were portrayed as villains in the story. While the girls were catapulted to the status of Heroines even before the case went on trial. 

They (the Girls) were to be awarded by the Haryana Government for their bravery.

The case took two years to provide a conclusive judgement, the judgement shook everyone to the core in the judgement it was found that there was no harassment done by the three accused. All the evidence and witnesses said that the men had not given any inappropriate gestures or implications. After a thorough background check it was found that the family of the supposed victims (Aarti and Pooja) had the habit of borrowing money and then coercing the lenders to forgo the loans by threatening to file false complaints of Rape, Kidnapping and Molestation. 

While the matter was under trial the Boys (Kuldeep, Narayan, Mohit) had lost their chance to sit for the armed forces written exam as they were accused of such a controversial case. 

Two of them were forced to quit their education. Once the judgement came out all the boys demanded the court was to regain their respect.

Landmark Judgement

The Delhi High Court took cognisance of the false case of Sexual Harassment filed by women in one of its landmark judgements Anita Suresh v. Union of India in which Justice Midha granted exemplary damages to the respondent in the lieu of false Sexual harassment being filed against them. The court ordered the appellant Ms. Anita Suresh to pay 50,000 rupees to the respondents and the bar association of Delhi. 

This helped point out that being falsely implicated of such heinous crimes has a huge impact on the life of the accused as he may be innocent, but people start to consider him guilty beyond doubt. 

Changes in the Sexual Harassment of Women at Workplace (Prevention Prohibition and Redressal) Act, 2013

The Act recognises the possibility of false prosecution and says that all the punishments which would have been applicable on the perpetrator had the accusation be proved would be conversely applicable on the plaintiff if she files a false case. 

Scope

The act is revolutionary in every sense but it has come under scrutiny because its narrow scope, exploitation of men though not a common practice in India. Is also not unheard of. 

But, One thing that the act definitely did was improve the status of the labour class or the housemaids whose rights were tough to protect even in the Vishakha guidelines, have been given proper redressal mechanisms so that their rights are also protected. 

Provisions of the Act

It had come to the attention of different courts in India that the guidelines that have been set by the supreme court of India were not practiced in many workplaces in the country. It took 16 years after the passing of the landmark case of the Vishaka and others v. State of Rajasthan and the judgement where the supreme court had set up guidelines for sexual harassment in the workplace a proper legislation was enacted, this was the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013[5]. This act has filled in the void of proper legislation that delivers each and every woman of India, regardless of age or status of employment, a workplace that is safe and secure from any kind of harassment. The above-mentioned Act’s objective is to not only protect but also to prevent any kind of sexual harassment that occur in workplace and also it ensures a speedy remedy for any complaints that are filed under the act. In 2013, there have been an amendment to the criminal law act where amendment had criminalized stalking, sexual harassment, etc.

One of the most important features of the act is the setting up of committees for any redressal of grievances, this has to be done both for the organized and unorganized sector. The said committees are as follows:

•   Internal complaints committee: any organization that employs more than 10 employees must have an Internal complaints committee also called as ICC in each office or branch.
•   Local complaints committee:  There should be a Local complaints committee also called the LCC to be set up by the government of India in the district level for the unorganized sector and also for the institutions having less than 10 employees. 

The ICC and the LCC under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 gives them the power equal to a Civil court, they have the power to call and inspect any accused under oath, to produce the necessary documents related to the complaint, and any necessary matter that is needed for the speedy conclusion of the case.

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 states that any women that have been sexually harassed in their workplace who proposes to complaint shall do so by providing 6 written complaints of the incident that have taken place. This complaint shall include the names, witnesses and most importantly the evidence of the said incident [6]. The complaint can be filed within 3 months of the said harassment happening. This time can be increased by the committees by another 3 months. Sexual harassment being a mentally tormenting criminal activity takes a huge toll on its victims, therefore they might not be in a position to go forward with the complaints. The Act has stated that any relative, psychologist, friends, co-workers have the power to file the complaint for the victim.

The complaints have the right to ask for interim measures to the ICC and LCC which have been provided powers to do so by the Act. The ICC and LCC can transfer the duties of respondent’s duty towards the victim to other employees, transfer of the victim to another branch or workplace and they can be granted a leave for up to 3 months.  The act also in detail states about the compensations and punishments that will be levied on the individual engaging in sexual harassment in the workplace. The act states the following:

• The employer can punish according to the rules that have been made in the organisation.
• If such rules have not been formed the punishment can range from counselling, community service, termination of service or promotion.
• The compensation payable to the victim shall be deducted from the salary of the individual engaging in sexual harassment. The mental and physical suffering borne by the victim, loss of employment, medical costs, determines the compensation payable.
• If any organisation does not setup any ICC for redressal of sexual harassment complaints shall be fined 50000.

One of the most important case regarding sexual harassment is the Vishaka & Ors. v. State of Rajasthan, in this particular case Bhawari Devi was a social worker under the government. She had been raped by 5 individuals, and due to insufficient evidence, the court had acquitted the case. This case had gained a huge public favour, therefore many NGOs and activists who supported Bhawari Devi to attain the justice she deserves. Therefore, a public interest litigation had been filed. Since there were no laws in place the supreme court of India had introduced certain guidelines and named it Vishaka guidelines.

These were for the employers to prevent any sexual harassment in the work place. After the implementation of the Vishaka guidelines the first case that made its way to the court regarding sexual harassment in workplace is Apparel Export Promotion Council v. A.K Chopra[7]  , in this case an officer superior in the establishment had sexually harassed a woman who was his subordinate, there was no contact physically. The court had implemented the Vishaka guidelines and held him guilty. The court had stated in the judgement that physical contact is not a necessity for sexual harassment. One of the most important cases in which the high court had implemented the Vishaka guidelines was Saudi Arabian Airlines, Mumbai v. Shehnaz Mudbhalkal [8], in this case Shehnaz Mudbhalkal was an employee of Arabian Airlines. Abdul E. Bahrani was a manager who had sexually harassed Shehnaz Mudbhalkal by requesting sexual demands and had threatened her if she didn’t comply or provide these demands, he would fire her. She had filed a case and the high court had held that Shehnaz Mudbhalkal should be reinstated with full wages and also full back ages.

A few years back there had been an important social media movement regarding sexual harassment named as the “#ME TOO” movement. Women who had been harassed in their lifetime had come out with the stories they had been through in social media; this had spread across the world. Few of the most important cases under this was in the year 2018 where a woman had alleged, she had been sexually assaulted by a minister and in the same year the minister of external affairs had also been accused by more than 20 women[9]. Women are afraid of coming out with their complaints because they fear the consequences following afterwards. In the ME-TOO movement there had been a lot of defamation cases being filed against women who speak the truth, this was one of the reasons women don’t express what had happened to them.

Analysis

The implementation of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 has been a good initiative but it still is not free from any loop holes and issues in the laws they are stated as follows: if a male employee ever goes through sexual harassment, he will not be able to claim relief under this particular legislation. The law talks about formation of the ICC for redressal of complaints, but the legislation is very vague in respect of the ICC regarding its constitution, the setting up of an ICC in every branch and office is a very expensive affair. The ICC includes only personnel from the company itself, there needs to be an individual who is not related to the company at all in the committee, this individual should be knowledgeable in terms of law or women’s rights, such an appointment makes the decision a favourable one.

The Act has given the responsibility to address the issues regarding sexual harassment but there is a possibility that the witnesses in the company will not agree to give their testimony fearing their reputation or safety. The act specifies that in case the complaint that had been filed by an individual is malicious in nature the employer has the power to take the necessary steps against that individual, this would discourage women to come forth and give complaints fearing that the decision will come against them. The act also exclaims that if any individual has been found guilty of the complaint that had been filed then the employer can pay the compensation to the complainant from the guilty individual’s salary, such an act can go against payment of wages act 1936. [10] The United States of America has no laws regarding the subject puts a percentage of liability on the employer too, but in India the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 does not do so.

 

Colin Kaepernick Effect

The false cases filed in the Act have been much publicised and have ruined the image of women in many workplaces. Also, with the onslaught of the METOO movement, each and every action is under scrutiny. According to many critics the normal balance of the workplace has been disrupted. One dire effect which this act might have is the non-hiring of capable and qualified women. 

As it is women’s participation across industries in negligible amounting to only 4% according to NCW data, women may find it difficult to get hired. As an employer may find it easier to hire a man with less expertise but also less complications. As in the case of a woman facing sexual harassment the employer has to bear the cost of the litigation as well as grant her leave up to three months in addition to the normal leave she was entitled to. All this adds to the cost.

Conclusion

We have certainly come a long way from having no mechanism for redressal available to a woman to a very potent and robust mechanism available for redressal. In depth view in the topic makes us realise that any law cannot be unidimensional. And a law as revolutionary as sexual Harassment of Women in Workplace has had huge social implications. What I feel is that this law is certainly a step in the right direction. What it requires is public awareness, sensitivity and robust implementation. I think when any incident happens people should not become judgemental against the woman or the man. The due process should be followed.

There should also be a Men’s Commission in place so that even men have the right to address their grievances in a systematic manner.

As the job of the Act is to bring equality not to suppress any gender. 

Bibliography

1. 10 Judgements that changed India
2.  Constitution Of India 
3. Avani Mehra Sood, PART 2 EQUALITY SOCIAL INCLUSION AND WOMENS RIGHTS: REDRESSING WOMENS RIGHTS VIOLATIONS THROUGH JUDICIARY. Jindal Global Law Review (vol.1)(2009)

Webliography

• SCC ONLINE 
• NCRB YEARLY REPORT 2016
• International Labor Organization Tripartite Regional Seminar on Combating Sexual harassment at work, Manila, November 1993 
• Rohtak Bravehearts the continuing story, Documentary by Deepika Narayan Bharadwaj 
• You tube/Rohtakbravehearts 
• Vox.com/ Colin Capernick / Nike

---

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: