Background:
Onset of 21st century has seen a surge in the overall globalization of endemic proportions in turn a steep growth at all fronts whether economic or otherwise.
What has been the lauding factor is sudden rise in the emancipation of women and total surge in representation at all fronts. India has also seen in recent years a rise in number of working women and overall rise in education for women.
Statistical data collated by “catalyst” an organization working on data analysis of women representation at work/education and as a labour force has reflected figures where it was recorded:
Education Statistics:
- 8% of all enrolled undergraduate students in India are women
- 7% of all enrolled PhD students are women.
This is a huge leap and a welcome step for Indian society dissipated by language cultural caste based backgrounds barriers.
Howsoever to the contrary what is impending and shocking is the certain decline in women representation at workplace and working women.
Working Women Statistics:
In a study/ research carried out by ASSOCHAM – Thought Arbitrage Research and Huffington Post
- The female workforce rate in India has fallen significantly by 10 percent during the last decade,
- The Stats show that in relation to every 54.6 employed men, there are just about 14.7 working women in 2016 in Urban Areas.
This decline is attributable to a number of reasons family, social, economic reasons etc., howsoever, the most pertinent of all causes is the rise of Sexual Harassment across workplaces. The fear of lack of adequate measures at workplace, government mechanisms, and cumbersome judicial processes are equally contributing factors.
Sexual harassment thus at workplace is common growing concern. It has transformed into a widespread problem for the western countries or third world nations. The rampant, atrocities against women is common everywhere.
It is a crime directed towards women, who are considered to be the most vulnerable section of the society.
What is Sexual Harassment?
Sexual Harassment is behavior. It is a dysfunctional trait exhibited by a person towards another person, whether a man or a woman. The large proportion of it being howsoever the women. Sexual harassment thus can be summed as all feasible forms of mental and physical violence which in turn violates her fundamental rights and abilities to perform her duties
Oxford Dictionary definition: “harassment (typically of a woman) in a workplace, or other professional or social situation, involving the making of unwanted sexual advances or obscene remarks”
Sexual Harassment cannot be?
- “Labelled as it is just a woman’s thing”
- A passing short lived fad.
- A Passing joke or a jocular reference
- Something to be completely shrugged or be ignored.
- A flaming cause for paranoia and fear
Evolution of Indian law on Sexual Harassment:
The Indian law has been very bleak on the subject of the sexual harassment, it has taken Indian legal system and judiciary many a years and numerous instances and incidents to form a framework to protect the sexual harassment.
Until 1997, where in post the Vishaka Guidelines came into existence the only recourse in Indian law was under Section 509 and Section 354 of Indian Penal Code 1860. There were no specific law to tackle the issue at helm, though Indian government was embroiling the need for same.
However, 1997 saw the advent of law and laying down of certain concrete guidelines. The famous case of “Bhanwari Devi” or otherwise known as Vishaka Case is inferred as the foundation stone for the law on sexual harassment In India.
Case Law: Vishaka vs. State of Rajasthan
Facts of Case:
Bhanwari Devi was government employee of State Government of Rajasthan and was also working as a worker for the Women Development Programme.
Bhanwari Devi in her personal capacity attempted to prevent a child from getting married. For her act of trying to stop the child marriage, she was raped repeatedly by feudal landlords of a particular community who vouched to teach her a lesson.
She approached the court of law but justice was not meted she did not due to many a circumstances and influential approach get justice from Rajasthan High Court and the rapists were allowed to go free. Following the course of events the women’s NGO called Vishaka took up the matter and further filed a public interest litigation in the Supreme Court of India.
Hon’ble Supreme Court of India took Suo moto cognizance of the fact and as the outcome of the case promulgated the Vishaka Guidelines so as to prevent and protect women from Sexual Harassment.
VISHAKA GUIDELINES POST 1997:
The Hon’ble Supreme court at the outcome of Vishaka case laid down certain guidelines and observed that :
“It is imperative and need of hour is expedient for all employers/ responsible persons or institutions to observe certain guidelines to ensure the prevention of sexual harassment of women at work and otherwise” Duties of the employer or other responsible persons in work places and other institutions:
- Express prohibition of sexual harassment as defined above at the work place should be notified, published and circulated in appropriate ways.
- The rules of government and public sector bodies relating to conduct and discipline should include rules prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender.
- As regards private employers, steps should be taken to include the aforesaid prohibitions in the standing orders under the industrial employment (standing orders) act, 1946.
- Appropriate work conditions should be provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at work places and no employee woman should have reasonable grounds to believe that she is disadvantaged in connection with her employment
Criminal Proceedings:
Where such conduct amounts to a specific offence under the IPC or under any other law, the employer shall initiate appropriate action in accordance with law by making complaint with the appropriate authority. In particular, it should ensure that victims or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment.
Disciplinary Action:
Where such conduct amounts to misconduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules.
Complaint Mechanism:
Whether or not such conduct constitutes an offence under law or a breach of the service rules, and appropriate complaint mechanism should be created in the employer’s organization for redress of the complaint made by the victim. Such complaint mechanism should ensure time bound treatment of complaints.
Setting up of Internal Complaints Committee:
The complaint mechanism, referred to above, should be adequate to provide, where necessary, a complaints committee, a special counselor or other support service, including the maintenance of confidentiality.
The complaints committee should be headed by a woman and not less than half of its member should be women. Further, to prevent the possibility of any undue pressure or influence from senior levels, such complaints committee should involve a third party, either NGO or other body who is familiar with the issue of sexual harassment.
The complaint committee must make an annual report to the government department concerned of the complaints and action taken by them.
The employers and person in charge will also report on the compliance with the aforesaid guidelines including on the reports of the complaints committee to the government department.
Law Post Vishaka: “Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act in 2013”
“Definition as per Law”
As per Section 2(n) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act in 2013,
definition of Sexual Harassment has been rendered as “ any or more of the following unwelcome acts of behavior namely” :
- Physical contact and advances; or
- A demand or request for sexual favour; or
- Sexually colored remarks; or
- Showing pornography; or
- Other offensive or derogatory pictures, cartoons; or
- Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
In simple terms it is the violation of a woman’s right to equality and dignity.
As per the act , Following acts when in relation to behavior of Sexual Harassment may amount to sexual harassment
(i) implied or explicit promise of preferential treatment in her employment; or
(ii) implied or explicit threat of detrimental treatment in her employment: or
(iii) implied or explicit threat about her present or future employment status; or
(iv) interference with her work or creating an intimidating or offensive or hostile work environment for her; or
(v) Humiliating treatment likely to affect her health or safety
Sexual Harassment and Constitution of India:
The constitution of India which upholds and is the forbearer of liberty freedom and law for its citizens, sexual harassment is:
“A gross violation of Article 14 which speaks about right to equality, Article 15 which prohibits discrimination and Article 21 of constitution of India which upholds the right to live with dignity”.