Sexual Harassment against women at the Workplaces
After a long battle of almost 16 years after the verdict of Supreme Court in Vishaka v. State of Rajasthan, in 1997, India finally enacted the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter referred to as the \'Act\') for prevention of sexual harassment against women at the workplaces.
Sexual harassment in workplace includes unwelcome verbal, visual or physical conduct of a sexual nature that is severe or pervasive and affects working conditions or creates a hostile work environment. It is a serious factor that renders women’s involvement in works unsafe and affects her right to work with dignity. It endanger the victim’s job, negatively affect her job performance or undermine the victim’s personal dignity. It may manifest itself physically or psychologically. Its milder and subtle forms may imply verbal innuendo, inappropriate affectionate gestures or propositions for dates and sexual favors. However it may also assume blatant and ugly forms like leering, physical grabbing and sexual assault or sexual molestation.
Before, the verdict of Supreme Court in Vishaka v. State of Rajasthan, women experiencing sexual harassment at workplace had to lodge a complaint under Section 354 of the Indian Penal Code that deals with the criminal assault of women to outrage women’s modesty, and Section 509 that punishes an individual or individuals for using a word, gesture or act intended to insult the modesty of a woman.
The entire scenario changed in 1997 with the introduction of Vishaka guidelines. The Supreme Court for the first time recognized, acknowledged and explicitly defined sexual harassment as an – unwelcome sexual gesture or behavior aimed or having a tendency to outrage the modesty of woman directly or indirectly. Defining sexual harassment as an act aimed towards gender based discrimination that affects women’s right to life and livelihood, the Supreme Court developed broad based guidelines for employers. The mandatory guidelines were aimed towards resolution and prevention of sexual harassment. These guidelines brought in their purview all employers in organized and unorganized sectors by holding them responsible for providing safe work environment for women. The Vishaka guidelines apply to all women whether students, working part time or full time, on contract or in voluntary/honorary capacity. The guidelines include acts like Physical contact and advances, Showing pornography, a demand or request for sexual favours. Any other unwelcome physical, verbal/non-verbal – such as whistling, obscene jokes, comments about physical appearances, threats, innuendos, gender based derogatory remarks, etc. It also provided for the formation of a Complaint Committee by the employers, which shall be headed by a woman employee and not less than half of its members would be women. All complaints of sexual harassment by any woman employee would be directed to this committee. The committee would advise the victim on further course of action and recommend to the management the course of action against the person accused of harassment. It also levied an obligation on the employer to make an express prohibition of sexual harassment in any form and make the employees aware of the implications through in house communication system / posters / meetings.
However, despite the guidelines, women continued to be harassed in the workplace because the Vishaka Guidelines were being breached in both substance and spirit by state functionaries who harass women workers via legal and extra legal means, making them suffer and by insulting their dignity. In Medha Kotwal Lele v Union of India, the Court stated that the Vishaka Guidelines had to be implemented in form, substance and spirit in order to help bring gender parity by ensuring women can work with dignity, decency and due respect. It noted that the Vishaka Guidelines require both employers and other responsible persons or institutions to observe them and to help prevent sexual harassment of women. The Court held that a number of states were falling short in this regard.
Recently, the issue of sexual harassment of women at the workplace assumed prominence with serious allegations being made against a former Supreme Court judge, whose court pronounced verdict on huge scams, and the editor of a magazine with truth and exposure as its masthead. In the case of the former, a court-appointed committee found that the complainant’s statement prima facie disclosed an act of unwelcome behaviour of sexual nature, but matters