Sexual harassment at the workplace is a global issue. In October’17 the NY times reported in an article on the details of decades of allegations of sexual harassment against Harvey Weinstein, the renowned Hollywood film producer, the news rocked Hollywood and the world. Then opened the flood gate of allegations against legendry film personalities, political leaders (including present US President) by eminent actresses and women of repute of the past and present is now known to all. The testimony to this malaise is the “Me Too” movement started in 2006 and bears testimony to thousands of incidences of sexual harassment of the women in field of their work. Sexual harassment, in the context of this discussion, is mainly harassment of women by men in the place of work. With increasing participation of women in educational, industrial and other spheres there are challenges arising in sharing opportunities, such as the perceived threat of losing “power” to the opposite sex etc. which sociologists explain by stating “… sexual harassment is a mirror reflecting male power over women that sustains patriarchal relations.”
It is noted that there has been an increase of around 12% in the number of Sexual harassment complaints reported by the BSE’s top 100 listed companies in 2016-17. Cases have risen among Nifty 50 companies with two-thirds of them disclosing a total 525 complaints in the year (Times of India, Mumbai 7th September, 2017). Wipro tops the list with 116 cases (111 cases reported till March 31, 2016), followed by ICICI Bank with 95 cases in comparison to 87 of last year and Infosys with 88 as compared to 62
In the previous year. Information technology and banking companies, which typically employ more women than others, constitute over 80% of the total cases (ET Review 29th September, 2016).
The data is discussed while we intend to understand the extent of the issue “sexual harassment at work place” and the legal provisions and processes that are in place and how far they are effective in preventing such harassment and its redressal and remedial measures.
The prevalence of sexual harassment is reported at world’s renowned industries, educational institutions, even the Governmental organisations like the Army and Police. To recall some of the recently reported cases, it is well known that one of the largest taxi cab operators, Uber, fired more than 20 employees including some senior executives in June 2017 after a company investigation into sexual harassment complaints and workplace culture was carried on by M/s. Perkins Coie on the complaints raised by Susan Fowler, a former engineer with Uber. Very recently, on 9th September, 2017, the ET (New Delhi) reported “The government has decided to recruit women jawans into the Army’s Corps of Military Police (CMP) for investigating gender specific crimes… Due to the increasing need for investigation against gender specific allegations and crime, a necessity was felt to introduce women in the CMP…” The Times of India, Mumbai of 8th September, 2017 reported “An Assistant Commissioner of Mumbai (ACP) and a constable have been booked for abetting suicide of a 23-year-old constable, Subhadra Pawar. Even in the film industry, many cases of sexual harassment can be recalled, notably (in July, 2017) the case of Malayalam superstar Dileep accused of abduction and sexual abuse of a female co-star.
These and many other incidents of sexual harassment lead us to think of the laws in this regard and where the gap exist in India as well as other countries. It’s a long journey of 20 years’ now since India moved from the Vishakha judgement in 1997 till the coming of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. The Vishakha judgment was an offshoot of a rape case involving a social worker in Rajasthan. It laid down the requirements for employers dealing with complaints of sexual assault and stipulated the formation of committees to dispose of complaints from victims of harassment.
Before 1997, a person facing sexual harassment at workplace had to lodge a complaint under Section 354 of the IPC, 1860 that deals with the ‘criminal assault of women to outrage women’s modesty’, and Section 509 that punishes an ndividual(s) for using a ‘word, gesture or act intended to insult the modesty of a woman’. Other legal provisions included filing a criminal case under sections of the Indian Penal Code (IPC), the Indecent Representation of Women (Prohibition) Act and/or filing a civil suit.
During the 1990s, Rajasthan state government employee (“Sathin”) Bhanwari Devi who tried to prevent child marriage (of a one-year old girl) as part of her duties as a worker of the Women Development Programme was raped by the landlords of the community. The feudal patriarchs decided to teach her a lesson and raped her repeatedly. The rape survivor was aggrieved by the Order of Rajasthan High Court which allowed the rapists to go free. A women’s rights group called Vishakha filed a public interest litigation in the Supreme Court of India. This case brought to the attention of the Supreme Court of India, “the absence of domestic law occupying the field, to formulate effective measures to check the evil of sexual harassment of working women at all work place”. The Supreme Court passed a landmark judgment laying down guidelines to be followed by establishments in dealing with complaints about sexual harassment. Vishakha Guidelines were stipulated by the Supreme Court of India, in Vishakha and others Vs. State of Rajasthan case in 1997, regarding sexual harassment at workplace. The court stated that these guidelines were to be implemented until legislation is passed to deal with the issue.
The court decided that the consideration of “International Conventions and norms are significant for interpretation of the guarantee of gender equality, right to work with human dignity in Articles 14, 15 19(1)(g) and 21 of the Constitution and the safeguards against sexual harassment implicit therein.”
As Zia Mody says in her book, Ten Judgements that changed India; “Judicial activism reached its pinnacle in Vishakha Vs. State of Rajasthan.” The judgment was unprecedented for several reasons: The Supreme Court acknowledged and relied on international treaties that had not been transformed into municipal law. The Supreme Court provided the first authoritative decision of ‘sexual harassment’ in India; and confronted with a statutory vacuum, it went creative and proposed the route of ‘judicial legislation’. The Sexual Harassment at workplace Bill was passed by the Lok Sabha on 2 September 2012. It is now The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 which was promulgated with the objective “An Act to provide protection against sexual harassment of women at workplace and for the prevention and redressal of complaints of sexual harassment and for matters connected therewith or incidental thereto.”
“aggrieved woman” means—
“employee” means a person employed at a workplace for any work on regular, temporary, ad hoc or daily wage basis, either directly or through an agent, including a contractor, with or, without the knowledge of the principal employer, whether for remuneration or not, or working on a voluntary basis or otherwise, whether the terms of employment are express or implied and includes a coworker, a contract worker, probationer, trainee, apprentice or called by any other such name;
“sexual harassment” includes any one or more of the following unwelcome acts or behaviour (whether directly or by implication) namely:
(This should be read along with the Section 3 of POSHA on Prevention of sexual harassment.)
“workplace” includes—
Thus, the legislation is one of the most comprehensive Act which has got a wide coverage of the women of any age who has suffered sexual harassment at any place visited by her in relation to or during employment. If we look at the similar legislations in other countries like in USA the Title VII of the Civil Rights Act of 1964 was promulgated. In 1980, the Equal Employment Opportunity Commission (EEOC) produced a set of guidelines for defining and enforcing Title VII. In 1984 the EEOC guidelines were extended to include educational institutions as well.Sexual harassment can be verbal misconduct, physical misconduct, or both and it generally must be severe and pervasive. There are basically two types of gender harassment recognized by the courts — quid pro quo (in which an employee isforced to choose between catering to unwanted sexual demands and either losing an occupational benefit or being punished in some occupation-related way) and hostile work environment (an employee experiences an intimidating or offensive work setting).
The Equality Act 2010 and Protection from Harassment Act of 1997 of UK states that any unwanted conduct on the ground of a person’s sex or an unwanted conduct of sexual nature committed to affect a person’s dignity or create a hostile environment would be “harassment”, notably the law does not distinguish between sexes. The Sex Discrimination Act 1984 (amended in 2011) of Australia; Law No. 10.224 of Brazil (which defines sexual harassment as an embarrassing conduct performed by a person in superior position on a subordinate worker for obtaining advantages or sexual favours) and Protection from Harassment Act, 2014 of Singapore are worth mentioning in the context.
Thus, there are adequate legislations in India as well as other countries. The point that we wanted to make at the beginning is that despite all the laws in place, the reported incidence of sexual harassment cases is increasing in number which lead us to think about the application of the laws to achieve its objective. And we will see how the effectiveness of POSHA is at a low level due to several factors which are affecting its implementation.
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