Sexual harassment is a serious problem for millions of working women worldwide. It is not an isolated phenomenon rather widespread and pervades a large number of occupations, employments, jobs, trades, businesses and economic sectors.
Hon’ble Dr. Justice AR. Lakshmanan is former judge of Supreme Court of India and is the former Chairman of Law Commission of India. He has been the Chief Justice of Kerela High Court, ajasthan High Court and Andhra Pradesh High Court. He has the distinction of delivering over 98,000 judgments during his eventful career
Sexual harassment entails sex discrimination, as the recipient’s gender is “the determining factor in who is harassed”. Conduct of a sexual nature or other conduct based on sex, affecting the dignity of women and men at work, offends the principle of equal treatment for men and women “as regards access to employment, vocational training and promotion, and working conditions”.
Such conduct, including conduct of superiors and colleagues, constitutes an intolerable violation of the dignity of workers or trainees and is unacceptable if: (a) such conduct is unwanted, unreasonable and offensive to the recipient; (b) a person’s rejection of, or submission to such conduct on the part of employers or workers (including superiors or colleagues) is used explicitly, or implicitly as a basis for a decision, which affects that person’s access to vocational training, access to employment, continued employment, promotion, salary or any other employment decisions; and/or (c) such conduct creates an intimidating, hostile or humiliating working environment for the recipient.
Sexual harassment at workplace (SHW) is a violation of the Right to Gender Equality guaranteed under Articles 14, 15 and 16 of the Constitution. SHW violates the freedom to work under Article 19. It creates a hostile and uncomfortable working environment and is a violation of the right to privacy and personal liberty enshrined under Article 21.
A writ of mandamus is particularly relevant in a case of SHW, to be used as a command directing a person (employees) or an organisation to do some particular thing, which relates to their office and which is in the nature of a public duty to prevent SHW. This writ can be sought through Public Interest Litigation (PIL) too. Tort law also provides a measure of protection to victims of sexual harassment.
Though there is so far no statute in India that addresses itself directly to sexual harassment, two statutes may be of particular help to victims of sexual harassment. These are the National Commission for Women Act, 1990 (the Commission) and the Protection of Human Rights Act, 1993.
The main task of the Commission is to study and monitor all matters related to the Constitutional and legal safeguards provided for women to review the existing legislations and suggest amendments wherever necessary. It looks into the complaints and takes suo moto notice of the cases involving deprivation of the rights of women in order to provide support, legal or otherwise, to helpless women. The Commission monitors the proper implementation of all the legislations made to protect the rights of women.
Judiciary has always taken a strong stand in cases involving sexual exploitation and harassment of women. The Supreme Court, in a case headed by the former Hon’ble Chief Justice of India, Dr. A S Anand, raised the right against sexual harassment to the level of Fundamental Right.
Sexual harassment at workplace (SHW) is a violation of the Right to Gender Equality guaranteed under Articles 14, 15 and 16 of the Constitution. SHW violates the freedom to work under Article 19. It creates a hostile and uncomfortable working environment and is a violation of the right to privacy and personal liberty enshrined under Article 21.
Pursuant to the guidelines provided in the Vishaka Case, the Action Aid India (AAI) has affirmed the need for a Sexual Harassment Policy (SHP). Potentially effective programmes for raising awareness of Sexual Harassment (SH) issues and prevention include:
In Vishaka v. Rajasthan, Supreme Court commented strongly against sexual harassment at work place. At that time, there were no separate rules or regulations dealing with SHW. The court issued broad guidelines to be followed until rules are framed, and directed that all employers must frame separate rules to deal with SHW as a form of misconduct.
Every employer, whether it is the Central or State government, a local body, or a private organisation, generally prescribes a list of conduct to be expected from its employees. The standards of conduct are stipulated by way of rules, regulations or standing orders. Any violation of the conduct rules amounts to misconduct.
The Apex Court prescribed the following preventive steps for the employers “without prejudice to the generality of this obligation”:
Various international bodies, such as the United Nations, the International Confederation of Free Trade Unions, and the International Labour Organisation, have taken action on SHW, such as issuing; nonbinding but influential guidelines, policies, and training programmes, as well as developing conventions addressing violence, harassment and discrimination against women.
According to the ILO, almost 50 countries have passed legislation directly prohibiting SHW, about 35 of these countries having done so since 1995, including Belize, Costa Rica, Israel and the Philippines.
Additionally, in some countries, National Codes of Conduct specifically against SHW have been developed, but with varying degrees of compliance. The law provides a broad list of types of SHW, which includes favoritism of a supervisor to a subordinate with whom he is sexually involved. In the US, large monetary awards are available to SHW plaintiffs, including full reimbursement for any wages or other costs, for emotional distress, and for reimbursement of her attorneys’ fees and court costs. If employer’s liability is found, the employer is jointly liable to pay these damages. The plaintiff may be entitled to punitive damages, meant to punish the harasser or employer if their conduct is particularly reprehensible.
The Government of India has framed a Bill on SHW called the Protection of Women against Sexual Harassment at Workplace Bill, 2007 (the Bill), which seeks to prevent and redress sexual harassment of women at the workplace. The Bill covers the organised and the unorganised sectors and both public and private offices, institutions, commercial and other workplaces. The Bill punishes nwelcome
To begin with, only two to three per cent of the total cases, which we have received, fall under the categories of SHW. Most of the women approach us because the committees, which exist in their offices, either do not follow the guidelines or the woman herself does not know what act by her employer would constitute sexual harassment. In the first case, we get in touch with the members of the Committee (especially the Chairperson of the Committee), and make them understand the guidelines laid down by the Supreme Court and how the Committee is suppose to work.We have seen in most of the cases that the pressure from an outside or an intervening agency working on rights based issues, tends to work in a positive way for the woman. In cases, where a woman does not get any support from her superiors at work place, we suggest them to approach the court directly through a lawyer. Apart from providing such support to women, we also provide trainings on the Vishaka guidelines on demand by organisations or corporate offices.
Partner, Luthra & Luthra Law Offices
In an era, where employees spend more time in the office than at home, maintaining a happy and congenial atmosphere at work place is a necessity. In such an atmosphere, employees will interact freely by talking, sharing jokes, paying a compliment and even indulge in light flirtatious behaviour.
However, the problem arises when colleagues exceed boundaries of decency and interaction amongst them deserves to be termed as sexually coloured behaviour.
Women, who are now increasingly sharing equal positions at work with men and often even exercising power over their male counterparts, are very often subjected to such harassment by their male colleagues, seniors, clients and other men they interact with at work. While the recipient feels disgusted, intimidated and invaded, what perverse satisfaction it provides to the perpetrators is anybody’s guess.
While there is no gainsaying the need for a law to prevent sexual harassment at the workplace, the very nature of the harassment renders it impossible to allow an objective assessment of the alleged offending behaviour, more so, when it largely depends on the impact it makes on the recipient. An accurate litmus test to distinguish genuine complaints from those actuated by motive, vengeance and misunderstanding would be impossible. The test of an average prudent person may be required to be applied; else it may become a potent tool in the hands of motivated female employees.
Though this issue demands complete sincerity and sensitivity towards thefemale employee, yet the following factors may be observed:
sexually determined behaviour, physical contact, advances, sexually coloured remarks, showing pornography, sexual demand, request for sexual favours or any other unwelcome conduct of sexual nature whether verbal, textual, physical, graphic or electronic or by any other actions, which may include,-
The Bill mandates every employer of an institution to constitute an Internal Complaint Committee with a woman Chairperson, a senior level woman employee, two other employees committed to the cause of women, or who are social workers and one member from an NGO.
The Bill provides for constitution of Local Complaints Committee (LCC) wherever at a workplace it is not possible or practicable to constitute a Complaints Committee or where the complaint is against the employer himself. Committee or the LCC shall recommend the action to be taken for misconduct in accordance with the provisions of the service, or other rules and if it so decides, to deduct compensation for the aggrieved woman.
One retrograde provision in the Bill stipulates that action can be taken against the aggrieved woman, if the allegation is false or malicious. Since, in most cases of sexual harassment, it is alleged that false and malicious allegations are being made by the complainant; this provision can have the effect of stopping the free and the fearless making of true complaints also.
One of the most effective tools for preventing SHW is by ensuring remedies that are fair and proportionate, and consistently applied. Nothing undermines the best prevention and resolution programmes than decision-makers, who fail to adequately punish offenders, who try to victimise an SHW victim out of wanting an offender punished because of the offender’s position in, or usefulness to the company, or who, in any way, penalises the complainant by changing her job status, removing her from a work unit, or allowing negative comments about her to circulate around the company.
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