ABSTRACT
Sexual harassment at work place is the worldwide issue. At least 2 out of 10 women have gone through such an experience. Women who work at private organizations, far from home and especially late night shifts are prone to such situations. A woman not only tolerates the household issues but also tolerates the torture at her workplace. This creates long-standing mental and physical effects on her health which can lead her to mental disturbances, insecurities and certain other health issues. It sometime also leads to suicides.
In my article, I am covering that how the laws for the prevention of women against such crimes came into existence, which includes the Vishaka Judgment and the criticism of the guidelines and its implementation, the laws which has been enacted or initiated with the purpose to prevent women from sexual assaults at workplace i.e. Sexual Harassment(prevention, Prohibition and Redressal) Act, 2013. Then I have discussed about the critical reviews regarding this act. It highlights about the Me-too Provision too. And my article also reads about the various other legislative acts under which workplace sexual harassment is governed and penalized (Industrial Employment Act, 1946 and Indian Penal code, 1860). It also includes the statistics regarding the increase in the crime rates against women in India and the reports which prove them.
INTRODUCTION
“Sexual Harassment in the workplace confuses rewards for performance with rewards for attractiveness and sexual availability.” – Warren Farrell.
There were days when men were the only ones who used to step their feet outside to earn bread for the family. And women were confined within the four walls of the house to handle the house chores. Since then, scenario has changed to a great magnitude. A profound improvement in the status and condition of women has been noticed since time. With an increase in the number of women at workplace, sexual assault at workplace has undertaken greater dimensions. Sexual assault at workplace has been the topic of bother for the women and Indian Society since 80s.
Sexual abuse at workplace has arisen as gender prejudice which infringes fundamental rights of women. It violated Article 14, 15 and 21 of the Indian Constitution as well as violated Article 19(1)(g) of the constitution. Sexual harassment at workplace does not only violate her fundamental rights but also generates a vulnerable and antagonistic environment which hinders her talents and ability to give her best in this competing world. It interrupts in their performance and creates a restricted environment for them. It gives a diminishing effect to their social and economic growth. In personal, it gives them long standing. Every workplace has set-up norms to establish ample and equal working circumstances for all the workers that have been restricted by the increasing instances of sexual harassment within work premises.[1]
India, among all the countries, has ranked top for being the most perilous place for women. This rank has been achieved by India due to the increasing sexual assaults towards women at home and workplace, increasing rape incidents, slavery etc.
Sexual harassment is not only faced by women, or by men, it is faced even by the transgender. It is one of the most deceitful and unscrupulous acts which infringes the basic human rights and snatches away the right to work in free and friendly environment.
EVOLUTION OF THE LAW ON SEXUAL HARASSMENT AT WORKPLACE
Sexual harassment has always been an issue for women working at different places. It was a topic of worry since 80s but there was no proper overlook and control by the state. There were incidents related to workplace sexual abuses at that time also but there was no proper law made to combat this society evil. The Sexual Harassment of women at workplace was very first recognized in the most celebrated case Vishaka V. State of Rajasthan by Supreme Court of India where Supreme Court has proclaimed guidelines to the Union of India, to enact laws and norms to confront workplace sexual Persecution. Ironically, 16 years after the Vishaka Judgment, the POSH rules and POSH Act came into force.
THE VISHAKA JUDGMENT
In 1992, Bhanwari Devi, who worked with the ‘rural development programme of the Rajasthan Government’, was putting efforts to reduce the practice of child marriage. For this, she was brutally gang raped. This incident brought in front of everyone, the condition of women in our society and the humiliations she suffered on the daily basis and highlighted the need for provisions and safeguards to be enacted and implemented in this context. A public Interest Litigation was filed in the SC in this regard under the banner of Vishaka.
The Supreme Court for the very first time, in this case recognized sexual coercion as a Criminal Offense. SC has acknowledged this abrupt act as an infringement of human violation. The Supreme Court has laid down the reforms of elimination of all kinds of differences done against women.
Vishaka Case was filed in the year 1992. The SC was moved by the Vishaka activists and the proper definition of Sexual Harassment was laid down in the year 2017, “which includes any kind of sexual conduct like initiating physical conduct, or a demand of request of such a conduct, sexually coloured signs, displaying porn videos or any other type of unwelcome sexual nature be it physical, verbal or non verbal conduct”. It took the duration of 16 years to the court to compile it into a proper law.
THERE WERE MANY JUDGMENTS PROCLAIMED AFTER VISHAKA VERDICT-
In one of the cases, Supreme Court has widened the meaning of the term ‘Sexual Harassment’, stating that physical conduct is not everything you require to amount an act as sexual harassment. SC detailed, “Sexual Harassment is a form of sex discrimination including sexual advances, demanding or request for such, other verbal or physical conduct with sexual overtones, be it directly or through implementation. And when the victim submits or rejects to such a request or demand, affects her employment, interrupts in her work ways, performances and participation and creates an unethical and immoral surrounding for her.”[2]
In the other case, Medha Kotwal who was the member of a NGO ‘Aalochana’ wrote a letter to the Supreme Court directing to it that the Vishaka Guidelines circulated by it are not administered well and still there are a lot of incidents related to sexual abuses to women at the place of their work. The letter reached to the Supreme Court who converted the letter into a writ petition. The State Government was supposed to file affidavits which covered all the ways and steps undertaken by them to discharge the Guidelines produced in Vishaka Verdict, as per as the orders given to them by the SC. In the verdict it was observed by the Supreme Court that “the implementation of Vishaka Guidelines has to be not in form but also in substance and spirit so as to make available safe environment for women at workplace in all aspects and thus enabling every women who works, to work with dignity, decency and due respect.”[3] SC was not satisfied by the way the Vishaka Guidelines were being implemented, so it directed the State Government to lay down proper means for methodical and functional implementation of the guidelines. SC also confirmed that when those guidelines will be flouted by anyone, the victim can walk to the respected High Court.
Vishaka Guidelines consisted of a lot of deficiency in it and there existed no such proper remedy for the victims of Sexual Harassment. The victims were supposed to visit the court under IPC. This process was indeed very unvarying which refrained many victims to go and redress their complaints. The disadvantages of the Vishaka Guidelines have to be removed and for that Sexual Harassment Act 2013 was enacted.
SEXUAL HARASSMENT ACT, 2013
Sexual Harassment (Prevention, Prohibition and Redressal) Act was a legislative act sanctioned by the Indian parliament, which has its extension to the whole of India. The main motive for the establishment of this act was to promote welfare and reliability to the working woman by preventing them from such indecent acts, prohibiting such kinds of Sexual Harassment at their workplace and creates a medium for the Redressal of complaints by laying down the steps stating how to file a complaint. This Bill was first introduced by Krishna Tirath in 2007, which later was confirmed in January, 2010 by the Union Cabinet. Ratified by the Lok Sabha and then by the Rajya Sabha, the bill finally got the mandate of president on 23rd of April 2013 and came into existence on 9th of December, 2013.
This act believed that the women’s safety is protected at all the places where she works. This will make her realize her rights to equality, life of dignity and liberty and her rights of working in equal possibilities and surroundings. It will also provide them with certainty and safety which will improve their performance and participation at various works thus improving their abilities. This will result in an increase in their economic and social status.
Sexual Harassment at the working places has always been a topic of worry and problem in the Indian society. There was tremendous increment in the cases of sexual assaults at the workplace and there was no such law pertaining in the society that can curb the evil out of it. The nation was in the need to some very effective legislative act and then the enactment of this act was like God who has came to protect women against all odds and evil.
CRITICAL ANALYSIS OF THIS ACT
Though this act guaranteed the protection of women and prohibition of the activities related to sexual abuses, still it lacked in granting full security to the people.
Brinda Karat[4], complained that this bill does not include in its purview the women of the armed forces and those women who worked in the agricultural fields. They were the exceptions to the term Woman according to this act. These were the concerns in the context of this bill. When the final bill was passed, it took into consideration all such concerns and it included, “No woman shall be subjected to sexual harassment at workplace.”
It was reported by the Lawyer, Vrinda Grover that the burden of proof should not be on the complainant. The provisions of the act were that if the women could not prove her being a victim, she will be disciplined. It was stated that already the reports against such crimes are low and if this provision is supported, the others will also not come for the Redressal of the complaints in the fear of getting penalized.
Our law talks about equality to both men and women and ironically only enacts an act for the safety of woman. The aforesaid act excludes men out of the purview and guarantees only women’s safety. Not every such act can be committed towards woman only. There can be men too, who might suffer from such tortures. The Legislation has to build up a proper balance between man and woman’s rights by coercing for a strong law to exist which will keep cautious eyes on the security and welfare of both women and men.
There were still there are many Indian companies and Multinational Companies who don’t obey and respect the norms of this act as well as the government also has not taken any proper means for the pursuance of the law.
This Act also had a number of defaults in its provisions. This act provides for a committee to listen to the complaints of the victims, which were either not established at many companies and places or did not provide them with proper justice. Women didn’t feel safe to report the complaints regarding the heinous crimes to them. Many of such incidents actually took place but there were no reports initiated for such crimes. They remained silent and did not protest or file complaints against the accused. This act excluded the complaints by third parties too. And the worst was the limitation period which was of 3 months. The legislation needs to understand that victims, especially women need time to collect strength and come forward and report for such crimes.
HASHTAG ME-TOO : MOVEMENT CUM CAMPAIGN
Me-too Provision is a viral campaign which came into force in the year 2017. It is a propaganda set-up against the offenses of Sexual harassment and advances. This provision acted like a manifesto for everyone who had such stories and experiences to share. Stories of sexual harassment and advances, especially at workplaces. A lot of woman came across this hashtag. Those woman who cannot go to the courts to redress their complaints, used this as a platform to mitigate themselves from the burden which they were carrying from such a long time.
Tarana Burke, an advocate and a lawyer, originated this movement. When it came into existence, it was just a movement ought to bring a change. It soon converted into a viral propaganda when Alyssa Milano, an actress tweeted on twitter calling out for the victims of Sexual Harassment to come forward and share their stories. To this tweet of Alyssa, responses were received by approximately half a million people. The posts and comments on facebook also reached to the extent of 12 million. There was a tremendous increase in the number of posts, comments and tweets with the hashtag me-too in just 24 hours. India, Australia and United States of America were the countries with the highest number of acknowledgments to this movement turned Campaign. This provision leads to a sudden burst of people sharing their stories and experiences which gave the other victims the feeling of connectivity and support and also gave them new strength to speak out about the incidents which has happened with them. This provision did not have any limitation period. There were tweets and posts with the stories which happened 3 years before or more.
CRITICAL REVIEWS OF THIS MOVEMENT
Me-too was a mere movement and not a legislation like sexual harassment act. It didn’t bring any change in the system. It just gave the victims strength to come forward and speak out their stories. There was no such particular law governing it. It was just a Movement cum Viral Campaign. When the complaints against an accused exceeded, the company or the organization fired him from the job thereby saving their esteem. The accused had no defense. There was no proper investigation also, and if it took place, there was a lot of biasness. As we all know that there is no proper law governing it, Public Interest Litigation Cant be filed on the basis of accusations of Me-too, the victims have to go to the courts to report the incident which took place with them.
OTHER LEGISLATIVE ACTS
Apart from the Sexual Harassment, 2013, there are some other provisions too which are there for the protection of women against such crimes. They are –
- INDUSTRIAL EMPLOYMENT ACT, 1946
This act came into force in 1946 with its extension all over the India. The provisions of this act is centrally accepted and complied. According to this act, every employee is required to illustrate and guide every worker with the conditions of working in the organization. The employer does this by giving standing commands to his employees. These standing orders specifically includes all conditions and terms of employment, the pay-scale, the total hours they are required to work, the specifications of vacations and leaves, etc. The applicability of this act is on all such industries where there are 100 or more than that employed. And each and every employee is responsible and accountable to such orders. If in case, the employer has not attested and composed his employees with the standing orders, the model standing orders will be applicable on them. In these model standing orders, the term Sexual Harassment has been well defined. And it also lays down a committee which handles all the complaints redressed by the victims of such heinous crimes. And excluding the differentiation on the basis of gender, this act includes men also within the application of its provisions.
- INDIAN PENAL CODE, 1860
When any conduct in the context of sexual harassment takes place, it will not only contravene the said provisions of the aforesaid act of 2013 but will also be liable and punishable under IPC.
Earlier, such offenses were punishable in section 354 of IPC, but post the enactment of the Criminal amendment act 2013, 354(A) was introduced in order to make sexual assault a specific crime. Below given are the sections of IPC which deals with the offense of Sexual Assault-
- Section 354- Intention to outrage the modesty of a woman through criminal force-
The punishment for such an offenses ranges for a term “which is not less than 1 year and can extend to 5 years, and fine.”
- Section 354(A)- Sexual Harassment by a man
The punishment for such an offense ranges from “1 to 3 years of rigorous or simple imprisonment and fine or with fine.”
- Section 354(B)- Intention to disrobe women-
Such acts or abetment of such acts which disrobes or forces her to be undraped are punishable under this act. The punishment is for a term “not less than 3 years and can extend up to 7 years, and fine.”
- Section 509- Words, acts or gesture which insults a women’s modesty-
When the words or acts are done in order to insult her modesty, the accused will be punished with “rigorous or simple imprisonment which can extend to 3 years and with fine.”
STATISTICS
- An increase by 100% was noticed in the cases of workplace sexual harassment.[5]
- An increase of 35% was noticed in the complaints of the workplace Harassment from 249 in 2013 to 336 in 2014.
- Approximately about 38% of the women had faced sexual persecution at work premises.
- And among them around 70% of the women do not redress their complaints for workplace sexual abuses.
- In the year of 2016, 25% to 85 % of women have gone through sexual harassment at work premises.[6]
- It was found that there are around 60% victims of sexual harassment and more than half of those victims have faced sexual abuses at workplace.[7]
- According to the surveys, it was said that around 45% of the workers in the organization have undergone through Sexual abuses. Among which the majority of victims are women.
- A rise of 54% was noticed in the sexual abuses at workplace in the year 2014 to 2017.
- There were a number of 27,533 cases of workplace sexual abuses reported across the country in the year 2018. (first seven months)
- In another survey, 665 cases were reported within the ambit of Section 509 of IPC- “insulting the modesty of a woman.”
CONCLUDING REMARKS
Sexual harassment has been a part of our society since its very institution. Women in our society have always been considered as a slave, be it her own house or her workplace. A slave, who will tolerate everything and won’t even utter a word in her defense. Workplace sexual persecution is the worldwide issue since the time women have started working. It is basically the violation of the basic human rights of equality and equal possibilities to work according to the article 14 and 15 of the Indian Constitution. It also infringes the rights of women, common to all, in article 19(1) (g) – “to practice any profession or to carry out any occupation, trade or business.”
We have noticed a rising number of the cases of sexual harassment at workplace. The Supreme Court to promote welfare to the condition of women has passed certain prescriptions with the norms and rules for the upliftment of women’s condition. It has also passed Sexual Harassment Act of 2013, but still the nation craves for a very strong legislation.
In the present scenario, each and every woman is working. They are working at different places, far from home. They even do night shifts. They are becoming a significant reason for the enhancement of the social and economical interest of the nation. So in return the state should also be held responsible and accountable to them. They should provide them with safety and should prevent them from falling into the pits of emotional disturbances, insecurities etc.
There are a number of international women human rights commissions working in the interest of women. They have raised their voices and have lead protests against all kinds of ferocity done against the women generally. UN has now acknowledged the fact that women rights are also included in Human Rights and they are mainly synonyms.
India is a country of issues. And for different issues different legislations have been passed by the state. For any legislation to pass successfully here, the state is required to analyze and go through the problems through which people suffer.
India being a patriarchal country, a number of cases related to sexual harassment of woman takes place, but only some are reported. Women are afraid to raise their voices and so prefer to remain silent. They should realize that no one except for them can reduce such crimes. The woman should know her rights guaranteed by the state and should also acknowledge them. Instead of tolerating and remaining silent, she should provoke, she should shout and complaint. The women should raise her voice against such crimes. A person who endures abuse under duress is as bad as the perpetrator, so stand up and shout for yourself. It’s high time that the harassers should get their lesson which no law, except for women can teach them. It is the right of each and every individual, including both men and women, to lead their lives with full liberty and dignity.
“Beauty provokes harassment, the lay says, but it looks through men’s eyes when deciding what provokes it.”
[1] According to the International Labour Organization survey
[2] Apparel Export Promotion Council V. A.K.Chopra
[3] B. Medha Kotwal Lele & Others V. UOI & others
[4] The communist party of India
[5] between the year 2014 and 2015
[6] According to the U.S. Equal Employment Opportunity Commission
[7] According to the studies of Quinnipiac University
