The typically men oriented workplace has been replaced by a large number of women getting employment in every possible field of work. This has given rise to a number of issues that affect the integrity of the women and also have an impact on the physical, mental and social well being of the women. In its different forms, sexual harassment is still a part of the workplace irrespective of the fact that it is reported or not. Women generally do not speak of any act of sexual harassment committed to them. But this is not a trivial issue to be lightly dealt with. Any act of sexual harassment can leave a woman with physical, mental and emotional problems that would have a deep impact on her future life.
The issue of sexual harassment has to be given a serious thought and people’s participation should be encouraged to make every workplace safer and healthier. Gender equality includes protection from sexual harassment and right to work with dignity, which is a universally recognized basic human right. The issue is not just confined to the empowerment of the women but this issue is related to the basic human rights of the women to work in a safe and secure work environment being treated equally with the men and no fear of being a subject of sexual harassment at the hands of the male counterparts in the workplace.
Nearly 88% of the female workforce in Indian Information Technology and business process outsourcing and knowledge process outsourcing (BPO/KPO) companies reported having suffered some form of workplace sexual harassment during the course of their work, says a survey conducted by Transforming India, a non governmental organization in the Information Technology and BPO/KPO industries. The report says that about 50% women had been subjected to abusive language, physical contact or been sought sexual favors from. As many as 47% employees did not know where to report, while 91% did not report for fear of being victimized. The study further revealed that there existed poor awareness levels among female employees on the issue. It further revealed that more than 82% of the incidents which could be classified as sexual incidents occurred outside the boundaries of the office and in nearly 72% of the incidents the perpetrator was a superior. It was further found that 60% of the respondents were not aware of the workplace sexual harassment policies of their organizations. Around 10% were only partially aware. Of all the respondents, 77% stated that the details of sexual harassment policies were not part of their hiring process, while only 7% stated that they could recollect some discussion about the topic either during their hiring process or later.
WHAT IS SEXUAL HARASSMENT
The Supreme Court of India in Vishakha’s case defined the term sexual harassment to include such unwelcome sexually determined behavior as physical contacts and advances, sexually coloured remarks, showing pornography and sexual demands, whether by words or actions. Such conduct can be humiliating and may constitute a health and safety problem; it is discriminatory when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment, including recruiting or promotion, or when it creates a hostile working environment.
When a woman has reasonable grounds to believe that her objection would be disadvantageous to her with respect to her employment or working conditions it amounts to discrimination of the woman on the basis of her sex.
WHAT IS WORKPLACE
A workplace is any place where working relationships between employer and employee(s) exist. Thus the definition of workplace does not confine it to the four walls of the office but goes beyond the physical premises of the office. This concept of workplace extending beyond the premises of the office building is also applicable if a woman is conducting her duties in the premises of another organization.
Therefore if she were sexually harassed in premises of an external party, her organization is obliged to register and deal with her case, as per procedures laid down by the Committee that deals with sexual harassment in the workplace. Workplace would also cover the home of an individual, if being used as a space to conduct the activities of the organization.
Each incident of sexual harassment, at the place of work, result in violation of the fundamental Right to Gender Equality and the Right to Life and Liberty - the two most precious Fundamental Rights guaranteed by the Constitution of India.
The contents of the fundamental rights guaranteed in our Constitution are of sufficient amplitude to encompass all facets of gender equality, including prevention of sexual harassment and abuse and the Courts are under a constitutional obligation to protect and preserve those fundamental rights. Sexual harassment of a female at the place of work is incompatible with the dignity and honour of a female and needs to be eliminated and that there can be no compromise with such violations.
The message of international instruments such as the Convention on the Elimination of All Forms of Discrimination Against Women, 1979 (.CEDAW.) and the Beijing Declaration which directs all State parties to take appropriate measures to prevent discrimination of all forms against women besides taking steps to protect the honour and dignity of women is loud and clear. The International Covenant on Economic, Social and Cultural Rights contains several provisions particularly important for women.
Article 7 recognizes her right to fair conditions of work and reflects that women shall not be subjected to sexual harassment at the place of work which may vitiate working environment. These international instruments cast an obligation on the Indian State to gender sensitize its laws and the Courts are under an obligation to see that the message of the international instruments is not allowed to be drowned. The Courts are under an obligation to give due regard to International Conventions and Norms for construing domestic laws more so when there is no inconsistency between them and there is a void in domestic law.
In cases involving violation of human rights, the Courts must for ever remain alive to the international instruments and conventions and apply the same to a given case when there is no inconsistency between the international norms and the domestic law occupying the field.
Every incident of sexual harassment of women at workplace results in violation of the fundamental rights of women. It is the clear violation of the right to equality (Article 14), right against discrimination on basis of sex (Article 15), right to practice any profession, occupation or trade (Article 19(1)(g) and right to life and liberty (Article 21). It is a clear violation of these rights guaranteed by the Constitution of India.
Article 19(1)(g) of the Constitution of India guarantees every individual the right “to practice any profession, or to carry on any occupation, trade or business. Our Constitution guarantees every woman the right to employment and sexual harassment a work place curtails the enjoyment of this right. Sexual harassment at the place of work brings the women at an inequitable position as compared to the male employees and ultimately violates her right to employment. The fundamental right to carry on any occupation, trade or profession depends on the availability of a safe working environment.
Sexual harassment of women at workplace is also a violation of the right to life and personal liberty enshrined in Article 21 of the Constitution. Right to livelihood is violated in the cases of sexual harassment. Safe working environment is essential for the exercise of the right to work the right to life with dignity. To ensure safe working environment and for making fruitful the rights guaranteed under the Constitution, the hazards posed by sexual harassment have to be eradicated. If the women’s right to privacy is not regarded as her right to life and personal liberty, then the right of gender equality guaranteed by our Constitution would be futile. Sexual harassment of women at the workplace violates their sense of dignity and the right to earn a living with dignity.
PROTECTION UNDER INDIAN PENAL CODE, 1860
In absence of any specific law to deal with the offence of sexual harassment, the Indian Penal Code, 1860 is used to punish the offender with respect to the nature of the act committed by him. The following sections of Indian Penal Code, 1860 are cover acts of sexual harassment:
- Sections 209, 292 and 294 which deal with Obscenity
- Section 354 deal with Criminal Force or Assault Intended to Outrage Modesty
- Section 375 deals with the offence of Rape
- Section 509 deals with Word, Gesture or Act Intended to Outrage Modesty of women
INDECENT REPRESENTATION OF WOMEN (Prohibition) ACT, 1987
If an individual harasses another with books, photographs, paintings, films, pamphlets, packages, etc. containing "indecent representation of women"; he is liable for a minimum sentence of 2 years under the Indecent Representation of Women (Prohibition) Act, 1987.
Section 7 of the Act makes the companies liable where there has been "indecent representation of women" (such as the display of pornography) on the premises.
PROTECTION OF WOMEN FROM SEXUAL HARASSMENT AT WORKPLACE BILL,2007
The Union Cabinet has cleared the Protection of Women from Sexual Harassment at Workplace Bill, 2007 in the month of May, 2012 to ensure a safe environment for women at work places, both in public and private sectors whether organized or unorganized. The measure will help in achieving gender empowerment and equality.
The proposed Bill, if enacted, will ensure that women are protected against sexual harassment at all the work places, be it in public or private. The sense of security at the workplace will improve women's participation in work, resulting in their economic empowerment and inclusive growth. The Bill provides protection not only to women who are employed but also to any woman who enters the workplace as a client, customer, apprentice, and daily wage worker or in ad-hoc capacity. Students, research scholars in colleges/university and patients in hospitals have also been covered.
Further, the Bill seeks to cover workplaces in the unorganized sectors. The Bill provides for an effective complaints and redressal mechanism. Under the proposed Bill, every employer is required to constitute an Internal Complaints Committee. Employers who fail to comply with the provisions of the proposed Bill will be punishable with a fine which may extend to Rest. 50,000.
It also reaffirms the guidelines laid down by the Supreme Court in Vishakha’s case that recognized harassment as a form of discrimination against women and violation of the constitutional right to equality.
GUILDELINES LAID DOWN IN VISHAKHA”S CASE
The landmark judgment that dealt with sexual harassment at workplace was that of Vishaka v. State of Rajasthan. In this case a social activist, Bhanwari Devi was alleged to be brutally gang raped in the village of Rajasthan. In this case the Court said that the incident revealed the hazards to which a working woman may be exposed and the depravity to which sexual harassment can degenerate; and the urgency for safeguards by an alternative mechanism in the absence of legislative measures. In the absence of legislative measures, the need is to find an effective alternative mechanism to fulfill this felt and urgent social need. Thus for the effective enforcement of the basic human right of gender equality and guarantee against sexual harassment and abuse, more particularly against sexual harassment at work places, the Court in exercise of its power under Article 32 of the Constitution laid down the guidelines and norms specified hereinafter for due observance at all work places or other institutions.
Further, the Court emphasized that this would be treated as the law declared by this Court under Article 141 of the Constitution. To curb the menace of sexual harassment at workplace, the Court laid down the following guidelines:
- Duty of the Employer or other responsible persons in work places and other institutions :
- It shall be the duty of the employer or other responsible persons in work places or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps required.
- For this purpose, sexual harassment includes such unwelcome sexually determined behavior (Whether directly or by implication) as :
- Physical contact and advances;
- A demand or request for sexual favours;
- Sexually colored remarks;
- Showing pornography;
- Any other unwelcome physical, verbal or non - verbal conduct of sexual nature.
- Where any of these acts is committed in circumstances where under the victim of such conduct has a reasonable apprehension that in relation to the victim’s employment or work whether she is drawing salary, or honorarium or voluntary, whether in Government, public or private enterprise such conduct can be humiliating and may constitute a health and safety problem. It is discriminatory for instance when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work including recruiting or promotion or when it creates a hostile work environment. Adverse consequences might by visited if the victim does not consent to the conduct in question or raises any objection thereto.
- All employers or persons in charge of work place whether in the public or private sector should take appropriate steps to prevent sexual harassment. Without prejudice to the generality of this obligation they should take the following steps:
- Express prohibition of sexual harassment as defined above at the work place should be notified, published and circulated in appropriate ways.
- The Rules/Regulations of Government and Public Sector bodies relating to conduct and discipline should include rules/regulations 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.
- Where such conduct amounts to a specific offence under the Indian Penal Code or under any other law, the employer shall initiate appropriate action in accordance with law by making a 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.
- The victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer.
- 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.
- Whether or not such conduct constitutions an offence under law or a breach of the service rules, an 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.
- The complaint mechanism, referred to in (6) above, should be adequate to provide, where necessary, 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 Complaints 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 on the compliance with the aforesaid guidelines including on the reports of the Complaints Committee to the Government department.
- Employees should be allowed to raise issues sexual harassment at worker’s meeting and in other appropriate forum and it should be affirmatively discussed in Employer - Employee Meetings.
Third Party Harassment:
- Awareness of the rights of female employees in this regard should be created in particular by prominently notifying the guidelines ( and appropriate legislation when enacted on the subject ) in a suitable manner.
- Where sexual harassment occurs as a result of an act or omission by any third party or outsider, the employer and person in charge will take all steps necessary and reasonable to assist the affected person in terms of support and preventive action.
The Central / State Governments are requested to consider adopting suitable measures including legislation to ensure that the guidelines laid down by this order are also observed by the employers in Private Sector.
These guidelines will not prejudice any rights available under the Protection of Human Rights Act, 1993.The Court directed that the above guidelines and norms would be strictly observed in all work places for the preservation and enforcement of the right to gender equality of the working women. These directions would be binding and enforceable in law until suitable legislation is enacted to occupy the field. These guidelines apply to both organized and unorganized work sectors and to all women whether working part time, on contract or in voluntary/honorary capacity.
WHAT SHOULD A FEMALE EMPLOYEE WHO HAD BEEN SEXUALLY HARASSED DO: 1.Show stern resentment:
When a woman finds the act of any man in her workplace to be offensive she must be clear and strong in her resentment. She should clearly let the other person know that his act is offensive and would not be tolerated.2. Speak out:
The woman should discuss the issue preferably with her colleagues or some other person so that the act does not go unnoticed. This would make the offender more cautious before doing any derogatory act. Talking about the issue would encourage taking of effective steps to control the act at the initial stage itself. 3. Keep Records:
A track record of the happenings should be kept in a document with the date, time and an account of the incident. 4. Report the Complaint:
The woman should make a formal complaint to the senior officials regarding the incident. If there is a proper complaint mechanism, the complaint should be made to the designated person and the procedure prescribed therein must be followed to report the incident of sexual harassment. If there is no such policy in the organization, the woman must report the incident to the employer or some senior official f the organization. 5. Say no to situations one fears of bringing in the risk:
A woman should clearly say no when you are asked to go places, do things, and respond to questions, or engage in situations that make her uncomfortable. She should not ignore the warnings given by other persons about particular people or social settings. 6. Get oneself medically checked:
In case of rape or physical assault the woman should go for a medical check-up and get a medical report. 7. File a police complaint:
The woman who has undergone the trauma of being sexually harassed must file a police complaint so that the acts of the culprit should not go unpunished.8. File a complaint with a women commission:
A woman can also file a complaint with the complaints and investigation cell of the women commission that would ensure that the investigations by the police are expedited and monitored. In case the act is serious, the Commission constitutes an Inquiry Committee which makes spot enquiries, examines various witnesses, collects evidence and submits the report with recommendations. Such investigations help in providing immediate relief and justice to the victims of violence and atrocities.
The issues related to sexual harassment are very sensitive and require an understanding, assessment, and commitment to redress the grievance and to make sure that an appropriate mechanism is formulated to prevent such incidents from happening in the future. It has been found that more than 75% of departments had not set-up a Complaints Committee and not formed any policy against sexual harassment. Most of the organizations have failed to make their female employees aware of any such existing policies or the remedial measures that they have against any such unwanted behaviors.
A woman in who has suffered an incident of sexual harassment at workplace can also make a call on the following numbers and report the incident: POLICE CONTROL ROOM NUMBER: 100 WOMEN HELPLINE NUMBER: 1091Link to register online complaint with National Commission for Women: NCW::Complaint Registration Form