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SEXUAL HARASSMENT OF WOMEN AT WORKPLACE (PREVENTION, PROHIBITION AND REDRESSAL) ACT, 2013
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SEXUAL
HARASSMENT OF WOMEN AT WORKPLACE (PREVENTION, PROHIBITION AND REDRESSAL) ACT,
2013
AUTHORED BY
- KIRAN MORDHARA
M.K.E.S.
College of Law
The Preamble of the Constitution of
India stresses the necessity of ensuring equal status and opportunities for
every citizen. Article 14 of the Constitution further solidifies this notion by
ensuring equality before the law and equal protection of the laws for all
individuals. This means that everyone within India's territory is entitled to
fair treatment under the legal system, regardless of factors such as caste,
religion, gender, or place of birth. This principle underscores India's
dedication to justice, fairness, and upholding the fundamental rights of its
citizens.
Ensuring a safe workplace is a legal
entitlement for women. The Constitutional principles of equality and personal
liberty, as outlined in Articles 14, 15, and 21 of the Indian Constitution,
guarantee equal protection under the law, freedom from discrimination, and the
right to life and personal liberty. These rights are further supported by the
UN Convention on the Elimination of all Forms of Discrimination against Women
(CEDAW), ratified by India in 1979. Often referred to as an international
charter for women's rights, CEDAW advocates for gender equality in all aspects
of life, including politics, economics, society, culture, and law. It
emphasizes that any form of discrimination or infringement upon women's dignity
contradicts the principle of equal rights.
Sexual harassment represents a
significant violation of women's rights to equality and dignity, stemming from
patriarchal beliefs that men are superior to women and that certain forms of
violence against women are permissible. Workplace sexual harassment, often
dismissed as harmless or trivial, is a manifestation of sex discrimination and
undermines women's fundamental rights, including their right under Article
19(1)(g) of the Constitution of India to pursue any profession or
occupation. It not only harms the well-being of individuals but also diminishes
workplace equality and productivity. Furthermore, entrenched socio-cultural
norms often place blame on the victim, exacerbating inequality in both the
workplace and society.
Despite the significant prevalence of
sexual harassment in the workplace, many women refrain from reporting such
incidents to the appropriate authorities. This reluctance often stems from
concerns about potential retaliation from the harasser, fear of losing their
job and livelihood, worries about facing social stigma, or apprehensions about
damaging their professional reputation and personal standing.
The Sexual Harassment of Women at
Workplace (Prevention, Prohibition, and Redressal) Act of 2013 was created to
make sure that women have safe workplaces and are treated fairly, giving them
equal opportunities. If this law is properly enforced, it will help women enjoy
their rights to equality, safety, and fair treatment at work. When women feel
secure in their workplaces, they will be more likely to participate in work,
which can lead to their economic empowerment and overall growth for everyone.
Even though official statistics
indicate low participation of women in the workforce, a significant portion of
their work isn't reflected in these numbers. Some argue that if all their work
was considered, women's overall participation would be as high as 86.2%.
While official data reports only about 25.3% of women working in rural
areas and 14.7% in urban areas, estimates suggest a much larger female
workforce exists. This highlights the necessity to ensure their workplace
safety and rights. Given that 93% of women work in the informal sector
and are not covered by protective laws, it's crucial to implement proactive
measures to safeguard their workplaces.
It's widely recognized that providing
safe working environments for women has a beneficial effect on their engagement
in the workforce and enhances their efficiency, thereby benefiting the entire
nation. Empowering women economically is crucial for the nation's progress, and
this can only be accomplished by guaranteeing safe and secure work environments
for women in all sectors and regions of the country.
Evolution
of the Law on workplace.
Vishaka and others v/s State of
Rajasthan
It is a case which deals with the
evil of Sexual Harassment of a women at her workplace. It is a landmark
judgment case in the history of sexual harassment which as being decide by
Supreme Court. Sexual Harassment means an uninvited/unwelcome sexual favour or
sexual gestures from one gender towards the other gender. It makes the person
feel humiliated, offended and insulted to whom it is been done. In many of the
cases, it has been observed that homosexual labour harass an employee belonging
to the same sex to which he belongs.
Facts
The facts of this case are given below:-
The facts of this case are given below:-
Bhanwari Devi who was a social
activist/worker in one of the Rajasthan’s village.She worked under a social
development program at rural level which was about to stop child marriage in a
village and this social program was administered/ initiated by the Rajasthan’s
state government. Bhanwari Devi en-devoured to stop the marriage of the
Ramkaran Gujjars (thakurs) daughter, who was merely less than one year old i.e.
she was an infant only. As a part of her duty, Bhanwari Devi tried to terminate
the marriage of her infant daughter. Even of her vain-full efforts to stop the
marriage, it happened, but Bhanwari devi was not excused or pardoned for her’s
this fault. She was exposed to or put forward to social punishment or boycott.
September 1992, she was been gang raped by Ramkaran Gujjar and his five friends
in front of her husband. The male doctor at normal primary health center
declined to survey her and the doctor at Jaipur only made confirmation of her
age without any recommendation of her being raped in her medical report. At
police station too she was been continually taunted by the women countable for
the whole of the midnight. In past midnight she was been asked by the policeman
to leave her lehnga as the evidence of that incident and go back to her
village. After that, she was only left with the bloodstained dhoti of her
husband to wrap her body, as a result of which they had to spend their whole
night in that police station. The Trail Court made the discharge of the accused
people for not being guilty. The High Court in his judgement propounded that – “it
was a case of gang rape which was conducted out of revengeful situation. All
these statement and judgement, aroused women and NGO’S to file petition (PIL)
in Supreme Court of India.
Issue Raised In This Case
Whether, the enactment of guidelines
mandatory for the repayment of sexual harassment of women at workplace.
Judgement
The judgment on Vishaka Case was conveyed by Chief Justice J.S Verma as a representative of Justice Sujata Manihar and Justice B.N Kripal on account of writ petition which was file by Vishaka the victim of this case. The court observed that the fundamental rights under Article 14[2], 19[3](1)(g) and 21[4] of Constitution of India that, every profession, trade or occupation should provide safe working environment to the employees. It hampered the right to life and the right to live a dignified life. The basic requirement was that there should be the availability of safe working environment at workplace.
The judgment on Vishaka Case was conveyed by Chief Justice J.S Verma as a representative of Justice Sujata Manihar and Justice B.N Kripal on account of writ petition which was file by Vishaka the victim of this case. The court observed that the fundamental rights under Article 14[2], 19[3](1)(g) and 21[4] of Constitution of India that, every profession, trade or occupation should provide safe working environment to the employees. It hampered the right to life and the right to live a dignified life. The basic requirement was that there should be the availability of safe working environment at workplace.
The Supreme Court held that, women have fundamental right towards the freedom of sexual harassment at workplace. It also put forward various important guidelines for the employees to follow them and avoid sexual harassment of women at workplace. The court also suggested to have proper techniques for the implementation of cases where there is sexual harassment at workplace. The main aim/objective of the Supreme Court was to ensure gender equality among people and also to ensure that there should be no discrimination towards women at their workplace.
After this case, the Supreme Court made the term Sexual harassment well defined, accordingly any physical touch or conduct, showing of pornography, any unpleasant taunt or misbehaviour, or any sexual desire towards women, sexual favor will come under the ambit of sexual harassment.
The Supreme Court's Vishaka
Guidelines set a high standard for workplaces, institutions, and those in
authority to protect women's fundamental right to equality and dignity at work.
These guidelines outlined three main duties: to prohibit, prevent, and
address sexual harassment. In 2013, the Government of India introduced the
Sexual Harassment of Women at Workplace (Prevention, Prohibition, and
Redressal) Act, also known as the Act. This law aims to ensure women's right to
equality and a harassment-free workplace by following the Vishaka guidelines.
It's important to know that this Act offers women a way to seek justice through
civil procedures, alongside other existing laws. So, any woman experiencing sexual
harassment at work can pursue both civil and criminal actions to address the
issue.
The purpose of this handbook is to provide workplaces,
institutions, and organizations with a basic understanding of sexual harassment
in the workplace. It also aims to offer simple and user-friendly information to
Internal Complaints Committees and Local Complaints Committees established
under the Act. These committees will learn about sexual harassment, their
responsibilities in addressing complaints, and the inquiry process and
outcomes.
This handbook is intended for
employees and workers, informing them about workplace sexual harassment and
their rights under the Act and associated Rules.
Structure of Handbook
The structure of the handbook
comprises six sections, each containing information for women, male co-workers,
and employers on how to address sexual harassment at the workplace within the
framework of the Act.
Section 1 acts as an introduction, delving
into the origins and background of the Act along with a concise overview of the
Act's contents. It also outlines the objectives of this handbook and its target
audience.
Section 2 sets the context by defining a
workplace and sexual harassment. It provides the reader with key elements, such
as examples of sexual harassment as well as scenarios and the impact of such
behaviour.
Section 3 directs attention to the primary
individuals and institutions engaged in the processes of prohibition and
prevention, outlining their respective duties and responsibilities.
Section 4 discusses the process of redress. It
outlines the essential participants in the complaint mechanism, such as the
complainant and respondent, and defines their roles. Additionally, it
elaborates on the various stages of the complaint process, with special
emphasis on the significant role played by the complaints committee.
Section 5 elaborates on the monitoring
obligations outlined in the Act.
Section 6 outlines the significant
international frameworks and highlights selected best practices concerning
sexual harassment in the workplace.
The Justice Verma Committee put
forward significant proposals concerning sexual offenses, rape, and the overall
safety of women in India. Here are the main recommendations made by the
committee across various aspects:
Rape: The committee stressed the
importance of maintaining the classification of sexual offenses in the Indian
Penal Code (IPC). It viewed rape and sexual assault not simply as crimes of
passion but as acts of power. The committee suggested broadening the definition
of rape to include any non-consensual sexual penetration, eliminating the
exception to marital rape, and emphasized that marriage should not imply
automatic consent to sexual activities.
Sexual Assault: The committee proposed recognizing
non-penetrative forms of sexual contact as sexual assault, with a comprehensive
definition encompassing all non-consensual sexual touching. It recommended a
punishment of 5 years of imprisonment, a fine, or both for sexual assault,
including the use of criminal force to disrobe a woman, which could result in 3
to 7 years of imprisonment.
Verbal Sexual Assault: The committee proposed repealing
Section 509 of the IPC, which addresses the use of words or gestures to insult
a woman's modesty. Instead, it suggested categorizing words, acts, or gestures
creating unwelcome sexual threats as sexual assault, punishable by 1 year of
imprisonment, a fine, or both.
Sexual Harassment at Workplace: For the Sexual Harassment of Women
at Workplace (Prevention, Prohibition, and Redressal) Bill, 2012, the committee
recommended several changes. These included expanding the bill's scope to cover
domestic workers, eliminating the need for conciliation, ensuring compensation
from employers to victims, and establishing an Employment Tribunal in place of
an internal complaints committee.
Acid Attack: The committee suggested addressing
acid attack offenses separately from grievous hurt and supported imprisonment
for 10 years or life for such offenses. Additionally, it recommended
establishing a government corpus to compensate victims of crimes against women.
Offenses in Conflict Areas: To address concerns in conflict
zones, the committee suggested reviewing the Armed Forces (Special Powers) Act
(AFSPA), advocating for witness protection for complainants of sexual violence,
and appointing special commissioners in conflict areas to monitor and prosecute
sexual offenses.
Trafficking: The committee recommended amending
the Immoral Trafficking Prevention Act, 1956, to effectively criminalize
trafficking, including trafficking by threat, force, or inducement, and
employing a trafficked person.
Child Sexual Abuse: To address child sexual abuse, the
committee suggested defining terms like 'harm' and 'health' under the Juvenile
Justice Act, 2000, to include mental and physical harm and health.
Punishment for Crimes Against Women: The committee opposed chemical
castration and death penalty as deterrents for rape and recommended life
imprisonment instead.
Medical Examination of Rape Victims: The committee advised against the
two-finger test and recommended relying on the victim's previous sexual
experience to determine consent.
Police Reforms: In terms of police reforms, the
committee recommended establishing State Security Commissions and a Police
Establishment Board, along with ensuring minimum tenures for high-ranking
police officials.
Reforms in Management of Cases: The committee proposed establishing a
Rape Crisis Cell, widespread use of CCTVs in police stations, online filing of
FIRs, and enhanced police training for handling sexual offenses.
Electoral Reforms: It recommended amending the
Representation of People Act, 1951, to disqualify candidates for sexual
offenses.
Education Reforms: In the field of education, the
committee suggested gender-neutral experiences for children, sexuality
education, and adult literacy programs for gender empowerment.
Impact of the POSH Act 2013: The POSH Act, or the Prevention of
Sexual Harassment at the Workplace Act, has significantly improved workplace
safety in India. Enacted to provide a secure environment for all employees,
regardless of gender, the Act outlines procedures for filing complaints and the
responsibilities of employers. It has been instrumental in creating a fair and
safe workplace environment, free from discrimination and harassment.
Cognizance
of the Offence by court.
The court can consider the offense
based on a complaint filed by the aggrieved party or any individual authorized
by the Internal Complaints Committee (ICC) or the Local Complaints Committee
(LCC) (section 27(1)). No court lower in authority than a metropolitan
magistrate or a judicial magistrate of the first class can adjudicate offenses
punishable under this act (section 27(2)). It's noteworthy that all offenses
under this act are considered non-cognizable.
According to the 2013 POSH Act,
engaging in any one or more of the following actions would be considered as sexual
harassment:
1. Physical contact and advances
2. Requesting or demanding sexual
favours
3. Making sexually suggestive remarks
4. Displaying pornography
5. Any other unwanted physical, verbal,
or non-verbal behaviour of a sexual nature.
Compliance
applicable to company under the POSH
Act.
The POSH Act, or the Sexual
Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act,
2013, is a legal framework in India designed to address and prevent sexual
harassment of women in the workplace. Companies are required to comply with
several key provisions outlined in the Act. Here is a brief description of the
compliances applicable under the POSH Act:
Steps involved in Compliance are as
follows:
1.
Formulation
of a POSH Policy:
Employers are mandated to formulate
and implement a comprehensive anti-sexual harassment policy. This policy should
define sexual harassment, provide examples, and outline the consequences for
offenders.
Constitution of Internal Complaints
Committee (ICC):
Companies with more than 10 employees
are required to establish an Internal Complaints Committee. The ICC is
responsible for receiving and addressing complaints of sexual harassment,
conducting inquiries, and recommending actions.
2.
Constitution of Internal Committee :
·
A Senior female employee as the presiding Officer.
·
Two Internal members who have experience in social
work or are committed towards working for the cause of women.
·
An External member who is part of an NGO or organisation
committed to do working towards the cause of women’s harassment.
Training:
Employers are obligated to organize
workshops and awareness programs to educate employees about the provisions of
the POSH Act, the company's policy, and the consequences of sexual harassment.
3.
Display of Posters/Information :
Companies are required to display
Posters/information about the provisions of the POSH Act and the contact
details of the ICC at prominent locations within the workplace which must
mention the consequences of sexual harassment at workplace.
4. Arrangements of Awareness Sessions for the
Employees and Internal Committee
Quarterly Reports:
The ICC needs to submit quarterly
reports to the employer, providing details about the complaints received,
actions taken, and the redressal measures implemented.
Annual Report:
Employers are obligated to submit an
annual report to the district officer, summarizing the actions taken by the ICC
during the year. This report should maintain confidentiality and not disclose
the identity of the aggrieved parties.
Protection against Retaliation:
The POSH Act prohibits any adverse
action or retaliation against the complainant. Employers must ensure that
individuals who file complaints are protected from victimization or harassment.
Redressal Mechanism:
The Act outlines a redressal
mechanism for resolving complaints, which may include conciliation, initiating
disciplinary action against the offender, or providing assistance to the
victim.
External Member:
The ICC should include an external
member from a non-governmental organization or an expert in the field of sexual
harassment to ensure fairness and impartiality in the inquiry process.
Compliance Certification:
Employers must obtain an annual
compliance report from the ICC, certifying that the company has complied with
the provisions of the POSH Act.
It's crucial for companies to
diligently adhere to these compliances to create a safe and harassment-free
work environment for all employees.
Here are examples of behaviours that
can constitute sexual harassment in the workplace:
1. Making sexually suggestive remarks or
innuendos.
2. Engaging in serious or repeated
offensive remarks, such as teasing related to a person's body or appearance.
3. Making offensive comments or jokes.
4. Asking inappropriate questions,
making suggestions, or remarks about a person's sex life.
5. Displaying sexist or otherwise
offensive pictures, posters, messages, or emails.
6. Using intimidation, threats, or
blackmail in exchange for sexual favours.
7. Threatening, intimidating, or
retaliating against an employee who reports unwelcome behaviour with sexual
overtones.
8. Extending unwelcome social
invitations with sexual undertones, commonly understood as flirting.
9. Making unwelcome sexual advances,
with or without promises or threats, whether explicit or implicit.
10. Physical contact such as touching or
pinching.
11. Caressing, kissing, or fondling
someone against their will (could be considered assault).
12. Invading personal space (such as getting too
close for no reason, brushing against or cornering someone).
13. Persistently asking someone out,
despite being rejected.
14. Stalking an individual.
15. Misusing authority or power to
threaten a person's job or undermine their performance in exchange for sexual
favours.
16. Making false accusations and
undermining a person behind closed doors for sexual favours.
17. Damaging a person's reputation by
spreading rumours about their private life.
Forms of Workplace Sexual Harassment:
In the workplace, sexual harassment
typically encompasses two primary forms of inappropriate conduct:
·
Quid
Pro Quo (literally 'this for that'):
Implied or explicit promises of favourable/unfavourable
treatment in employment.
Implied or explicit threats
concerning an individual's current or future employment status.
·
Hostile
Work Environment:
Creating an atmosphere at work that
is hostile, intimidating, or offensive.
Subjecting individuals to humiliating
treatment that may jeopardize their health or safety.
Conclusion
The effectiveness of the POSH Act as
a legal recourse for women experiencing sexual harassment in the workplace is
evident in the increasing number of complaints filed each year. The act was
specifically designed to address instances of sexual harassment against women
in professional settings, drawing upon the guidelines laid out in the Vishakha
judgment. This judgment exemplified the essence of judicial activism.
The system established by this act
allows women to promptly seek resolution for their grievances. It is imperative
for the committees and authorities involved to be diligently monitored. The
confidentiality of victims' and witnesses' identities and addresses must be
maintained at all times, safeguarding them from public and media exposure.
[i] References
Article Information
SEXUAL HARASSMENT OF WOMEN AT WORKPLACE (PREVENTION, PROHIBITION AND REDRESSAL) ACT, 2013
Authors: KIRAN MORDHARA
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/02/13
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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