The safety of women is all what we talk about. Women should not do this, should not do that …etc. and all this only and only for her safety. But do you really thing that just merely putting restrictions and obligations on the already weaker section of the society, is solution to all these problems? Surely, no and it will never be. Rapes, eve-teasing, sexual molestation, stalking, voyeurism were not enough to quench the lustful and demonic thirst of men, so now they have gone down to the level of harassing women even at the pious place of work. Yes, here we are dealing with the most common and the burning form of abuse of our female society, SEXUAL HARASSMENT AT WORKPLACE.
While sexual harassment at workplace is widespread and often subtle it was not considered as a problem or given much importance to be dealt with methodically. It was only in 1997, when the Supreme Court for the first time acknowledged Sexual Harassment as unwelcome act which cannot be justified in guise of normal relationship. The Government of India has abided Supreme Court’s ruling and has made specific provisions in CCS (Conduct) Rules, 1998 prohibiting Sexual Harassment of women by government servants. Circulars and directives are issued to the ministers/departments to take appropriate action against the delinquent Government servants. State Governments and private enterprises have also taken necessary steps in this regard.
The Supreme Court Guidelines on Sexual Harassment at the Workplace, issued in 1997, recognize that sexual harassment is not just a personal injury to the affected woman but violates a woman’s rights to equality in the workplace. The guidelines mandate that appropriate working conditions should be provided to ensure that women do not face a hostile work environment in the workplace and no women employee should have reasonable grounds to believe that she is disadvantaged or placed in a sexually vulnerable position as a result of her employment. The guidelines shifts the onus for ensuring employees’ safety and gender equality to the employer and institutions, whether in the government or the private sector, making them responsible to implementing both preventive and remedial measures to make the workplace safe for women.
Among preventive measures, the guidelines suggest that organization make public in appropriate way an express prohibition of sexual harassment as an offence, and raise awareness of appropriate disciplinary measures that will be taken against offender.
A range of remedial measures are indicated. The guidelines make it mandatory for employers to set up a complaints committee headed by a woman, and for at least half its member to be women. To ensure immorality, the committee is to include a third-party representative from a non-governmental organization or any other person familiar with issues of sexual harassment. It is clear however, that more general and representative evidence of the extent to which sexual harassment persists in the workplace is lacking, making it difficult to assess the extent to which, following the Vishaka judgment, sexual harassment in the workplace has been addressed.
WOMEN RIGHTS’ ACTIVISTS
The Act is being highly criticized by the women rights’ analysis. Unfortunately, it leaves it up to the internal committee to decide a monetary fine to be paid by the perpetrator depending on their income and financial status. Accordingly, a lower level executive has to pay a lower fine for harassment than a senior executive. This unjustified and unreasonable discriminatory scheme leaves scope for inequality among different sections of the society for an act equally heinous in nature, be it committed by anyone.
The act does not cover in its scope and ambit a very important community, that are agriculture workers. The exclusion of armed forces too is an inexplicable gap. Women working in the armed forces suffer highly from sexual harassment which calls for inclusion within the purview of the Act. What needs to be noted is that the Armed Forces sector is heavily male dominated and that the chain of command is in the lair of the males. Enquiries are held behind closed doors putting women in the Armed Forces at a disadvantage to begin with. There is no need to exclude such women from the purview of the Act as no strategic or other interests are affected by protecting them against sexual harassment at workplace.
DISCRIMINATION IN SCOPE AND AMBIT
In an era, where the force of the law thrives for creating equal opportunity and focuses on eliminating discrimination of every kind possible, this particular Act is not at all gender neutral. The Act provides protection against acts of sexual harassment only for women and not men.
On other hand, interestingly various recent studies and surveys over the last years and so have shown that vet often, workplaces also involve women initiating and engaging in acts of sexual harassment. The research concluded that with respect to this crime, cites in India are gender neutral and women are often on the dominating end just like men.
Although, this Act is a great step forward in protection for women, it however leaves a wide scope for false allegations. Individuals not involved in law making but who would rather be governed by this law feel, that its effect must be viewed not just on the individual in question but in totality including his family. This not only becomes a source of nuisance to the man so falsely accused and his family, it also tarnishes their reputation. This in turn becomes a great threat that a household may face.
WHAT IS SEXUAL HARASSMENT?
- Physical contact and advances;
- A demand or request for sexual favors;
- Sexually colored remarks;
- Showing pornography;
- Any other unwelcome physical, verbal or non-verbal conducts of sexual nature.
Where any of these acts is committed in circumstances where-under the victim of such conduct has a responsible apprehension that in relation to the victim’s employment or work whether she is drawing salary or even if she’s working in the government sector or even in a public or private sector enterprise, such conduct can be humiliating and may constitute a health and safety problem.
Therefore, sexual harassment takes place if a person – subject women to an unwelcome act of physical intimacy, like touching, brushing, patting, pinching, stalking, assaulting, etc. Makes an unwelcome demand or request for sexual favors and makes it a condition for employment, promotion, increased pay, additional benefits, special privileges, gifts, etc. Makes unwelcome remark with sexual implications, like sexually explicit compliments, dirty and loud jokes, sexist remarks, etc.
FORMS OF SEXUAL HARASSMENT
Sexual Harassment can take many different forms. These include: making sexually explicit remarks and banter, leering, rude comments and personal insults; showing sexually explicit obscene pictures and images from the internet; displaying calendars and pictures of nude woman and sexual assault.
It is generally accepted that sexual harassment includes two types of behavior. The first is usually defined as “quid pro quo” and relates to where an individual, often in a position of power, will explicitly or implicitly make sexual requests and/or advances. In exchange they may offer some desired result, for example, a promotion. The second is sexual harassment which can be defined as ‘hostile environment’, which refers to sex-related behaviors which make the person being harassed feel uncomfortable, thereby creating an intimidating work environment. This type of sexual harassment is a source of much debate as it may be subtle and is often termed as a ‘grey area’
FREEDOM AT WORPLACE
The existence of free and unmonitored work environment along with co-existence of liberties to be frank and humorous with each other at workplace is in fact the need of the hour. This when excised in limits, leads to improved understandings and work efficiency. Few examples can be mild sexual humor, unhindered personal level interactions. All these help build up ambient relations and allow the opposite sexes to break the ice and come to terms and understandings which they need to do, both as matured individuals and professionals.
With the reducing of gender exclusiveness at various workplaces, more and more men and women are interacting with each other at workplace. This trend has led to an indispensible need to create a freer and friendly environment for both the genders to freely interact and communicate. However, with strict provisions of the new law, it appears as though this easy interaction will get curbed. With employees being much more careful with their jokes, it will ultimately create a hostile environment at workplace.
But the Act takes away this free environment. Circumstances where casual relations are encouraged between men and women will be curbed due to fear of it being misconceived.
THE LANDMARK JUDGMENT OF SUPREME COURT
FACTS OF THE CASE –
This was a landmark case regarding the protection of women against sexual harassment at workplace. It was the incident of 1992 where a lower caste social worker for the women’s development programme in Rajasthan named Bhanwari Devi who was trying to stop a child marriage in her village was allegedly gang-raped by five men of the upper-class community. She went to the police station to lodge a complaint against the offenders but no thorough investigation was launched.
ISSUE RASIED –
This landmark case raised so many questions in the context of sexual harassment which take place at a workplace. The Issue raised whether the employer has any responsibility in cases of sexual harassment by its employee or to its employees at a workplace?
WHAT WAS HELD?
To get justice, she took her case to the Trial Court where Court acquitted the accused for the reason of lack of the medical shred of evidence and other reasons. Due to which so many women’s groups and organizations went for appeal against the judgment. The result of which, a public interest litigation was filed in the Supreme Court of India on the issue of sexual harassment at the workplace. This judgment had its basis in so many international treaties which had not been adopted in the municipal law.
Supreme Court held that the sexual harassment of a woman at a workplace would be violative of her fundamental rights of gender equality and right to life and liberty under Articles 14, 15, 19 and 21 of the Indian Constitution. The court concluded that such Act would be considered as a violation of women’s human rights.
LEGAL CHANGES BROUGHT AFTER THE CASE –
After this verdict, a statutory vacuum was observed which proposed the route of judicial legislation in the context of sexual harassment at workplace. The case laid down so many guidelines and requirements which need to be fulfilled by the employer as well as other responsible persons or institutions:
- For preventing the acts of sexual harassment in the workplace, it should be the duty of the employer or any other responsible person to prescribe for procedures and settlements.
- Formation of a complaint committee at all workplaces.
- Such committee has to be headed by a woman employee only and should have NGO or third-party participation.
- Half of the members of a committee should be comprised of women only.
- All complaints regarding sexual harassment of a woman employee would be dealt by this committee only, appropriate action in this regard shall be initiated by the employers in accordance with the concerned law.
- The committee would advise and recommend to the victim for the further course of action.
So, these guidelines were the first of its type which created for the gender equality rights of women, which should be free from harassment in both public and private employment. This judgment led the Indian Government to enact the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 which came into force from 9 December 2013. This Act superseded the Vishaka Guidelines for prevention of sexual harassment introduced by the Supreme Court of India.
Sexual harassment continues to plague workplaces in India. Also most of the employers turn blind eye to sexual harassment complaints and lack of awareness amongst women employees about complaint mechanism within organization. While the SC has given various guidelines and the legislation has also been made, there is still lack of proper implementation and absence of mechanism to check execution. The damage that is happening due to safety apathy is unpardonable and irreparable.