Violence against women is a human rights violation whether it is a case of domestic violence within the sanctity of home or a case of sexual harassment at workplace. Since times immemorial, a woman has been perceived through the eyes of a man and in this patriarchal society, she emerges as his second half….subordinate, secondary, subservient, inferior so on and so forth…
One need not look at the statistics collected by the National Crimes Records Bureau or The National Commission for Women to reveal that women in our country face a high level of violence and discrimination not only within their homes but also outside wide in the open.
Hundreds and thousands of incidents of such physical, sexual and culturally justified assault happen every day. Almost every woman in this country has experienced some form of violence in her lifetime and the fear of such violence becomes an inherent part of her life. It determines what they do, when they do it, where, how and with whom it is done. These acts not only shape their lives, but also influence their decisions as well as their expectations from themselves. Here we should not forget that it is just not the physical and sexual violence but also the verbal, emotional, financial, social and intellectual violence that is being faced by a woman.
Though there had been quite a few notable judgements earlier that identified and brought to the forefront the existence of the problem of Sexual harassment of women at workplace, The Court for the first time in Indian legal history in Vishakha, recognized sexual harassment as a ‘recurring’ phenomenon in India. It is the first ever judicial recognition of the fact that a woman by virtue of her gender becomes more vulnerable to sexually offensive behaviour.
Vishakha was a giant leap in expanding the principle of fairness in procedure after Maneka Gandhi case where the Court had for the first time ruled that the right to equality also includes the right not to be treated arbitrarily. After the ruling of the court in the Maneka Gandhi case, perhaps it was the first time in 1997, in Vishakha that the principle of fair and just procedure was expanded further to include a gender just procedure in furtherance of the constitutional goals of equality.
It was not until the 1990s that the sexual torture endured by a rural level change agent in Rajasthan and her subsequent efforts to challenge the injustice faced by her gave rise to a common sense approach that was long overdue as to what needed to change….. it was us, the society. Sexual Harassment hit the map when Bhanwari Devi prevented the child marriage within an upper caste community, and was subsequently gang raped by the very men to whom she had reported the child marriage. Bhanwari’s case gave us a ready reckoner wherein we were entitled to think and rethink as too the efficiency of our criminal laws. In the absence of any existing legislation on sexual harassment, the opportunity was ripe for a comprehensive approach.
Not only this, the Court went a step ahead in Apparel Export promotion council V. A.K. Chopra, wherein it held that even an attempt to molest would amount to sexual harassment. The court in this case very clearly stated that the conduct of the accused will not cease to be outrageous just because an actual assault or touch by the superior officer did not take place.
Before the Vishakha Judgement, any person facing sexual harassment at workplace had to lodge a complaint u/s 354 of the IPC,1860 that deals with the criminal assault of women to outrage women’s modesty, and section 509 that punishes individuals for using a word, restore or act intending to insult the modesty of a woman. This situation has changed after the implementation of the Vishakha guidelines and more so after the Sexual harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act,2013.
The Act applies to all the women at all places. This means that any woman who feels that she has been a victim of unwanted sexual behaviour at any workplace my file a complaint under this act. This law however provides a civil remedy and if the said harassment is of criminal nature, then the woman has to file the complaint with the police under sections 354/509 of the IPC , 1860.
The Act further mandates the employers to set up an Internal Complaints Committee at each office or branch where are at least 10 or more employees. Not only the employer, but also the government is required to set up a Local Complaints Committee at the District level in order to investigate the complaints where the internal complaints committee has either not been set up or if the said complaint is against the employer himself. Both the Internal Complaints Committee as well as the Local Complaints Committee are required to follow due process and inquire into the complaint concerned in a time bound manner.
Both of these committees have the power to recommend interim relief measures like the transfer of the aggrieved woman or the respondent to any other workplace, or granting leave to the aggrieved woman upto a period of 3 months in addition to her regular or statutory or contractual leave entitlement at the request of the complainant.
The Act also provides stringent clauses for the protection of women workers from sexual harassment which are as follows:
1. A written complaint has to be filed by the woman employee against whom the sexual harassment has been committed within three months of the date of the incident.
2. The inquiry for the same has to be completed within a period of 90 days.
3. The enquiry report has to be issued within a period of 10 days from the date of the completion of the inquiry.
4. The employer is required to act on the recommendations of the committee so formed within 60 days of the receipt of the inquiry report sent by the committee.
5. Any appeal against the decision taken by the committee is allowed within 90 days of the date of the recommendations.
If however an employer fails to constitute an Internal Complaints Committee as is required of him, or does not comply with any provisions contained therein, The Act prescribes a monetary penalty of upto Rs 50,000.
6. Any person aggrieved by the recommendations of the committee may prefer an appeal to the court/tribunal within 90 days.
7. There is also a prohibition against and a penalty for publication of inquiry proceedings.
8. The act provides a safeguard against vexatious complaints made for oblique purposes. The committee may recommend action, in accordance with services rules, against the woman for making a malicious or false complaint. However, inability to substantiate a complaint does not necessarily mean that the complaint itself is false or malicious. The woman who is aggrieved by the recommendation may o=prefer an appeal to the court/tribunal within 90 days.
Sexual harassment at workplace is a criminal offence as per the changes made in the Indian Penal Code, 1860. Sec. 354(A) was added in the IPC through the Criminal Law (Amendment Act), 2013, enlisting all the acts which shall constitute the offence of sexual harassment at workplace and further envisages the punishment/penalty for such acts.
For as long as one can remember, it seems that the women are mercilessly and indiscriminately exploited against. Making a conscious effort to promote a violence free environment and a safe working environment for women is not only the need of the hour but also something that is being consciously endorsed by all the aspects of our society today. There is no doubt that the Act is a welcome and much needed change made to the laws for sexual harassment as it finally condemns the acts of the employers who take advantage of their authority but at the same time it cannot be said that the Act is a complete safeguard against such heinous acts done to outrage the modesty of a woman.
The act should be gender neutral like it in The United States of America, where the complaints of sexual harassment can also be filed by men. A harassment of a woman by a woman should be a cognizable cause of action under the act. There should be a global policy of non-tolerance for sexual harassment which encompasses all employees regardless of gender in line with national law. Every person should be made amenable with the law relating to Sexual harassment at Workplace by way of creation of policy, setting up of Internal Complaints Committee, generating awareness amongst the employees and reporting of sexual harassment cases along with the action taken in the Company’s annual report. In many companies, the Committee to probe the allegation of Sexual Harassment at Workplace was being constituted on an ad hoc basis (when the complaint is filed) whereas it should be a standing committee that reports yearly to the Central Government., as per the Vishakha Guidelines laid down by the Supreme Court.
Only strong implementation of The Act can ensure woman empowerment and make their life safer. It is of utmost importance that the nation rises not only in support of The Act but also in support of it’s implementation.
Even though the Government declared the year 2001 as the year of women’s empowerment (Swashakti), National policy for the Empowerment of Women was passed in 2001 and on 9th March, 2010, one day after the International Woman’s Day, Rajya Sabha passed the Woman’s Reservation Bill requiring that 33% of seats in the Parliament and State Legislative bodies be reserved for women, the women in India still continue to be helpless in many regards and face a lot of atrocities such as rape, acid throwing, dowry killings and forced prostitution .
Women in India face myriad cultural challenges that impede social advancement like discriminatory family codes, lack of education, and cultural stigmas etc. Considering such widespread inequities, the Government should not just reform the institutional treatment of women but also level of dialogue on the level of dialogue on the larger issue of women’s rights in a rapidly modernizing society.
The author is an Advocate-on-Record practising in the Supreme Court of India, Delhi High Court and all District Courts and Tribunals in Delhi. She has done her Doctorate in Criminal Law and is the Legal Member in the Internal Complaints Committee of various private as well as Government Organizations. She is also an empanelled advocate of various government institutions.