18 May 2020 6:17 AM GMT
"Sexual harassment at the workplace" is an affront to the fundamental rights of a woman to equality, her right to live with dignity as well as her right to practice any profession or to carry on any occupation, trade or business guaranteed in our Constitution. Right from State of Maharashtra vs. Madhukar Narayan Mardikar in which Supreme Court opined that "even a woman of easy virtue...
"Sexual harassment at the workplace" is an affront to the fundamental rights of a woman to equality, her right to live with dignity as well as her right to practice any profession or to carry on any occupation, trade or business guaranteed in our Constitution.
Right from State of Maharashtra vs. Madhukar Narayan Mardikar in which Supreme Court opined that "even a woman of easy virtue is entitled to privacy and no one can invade her privacy as and when he likes inter alia held merely because she is a woman of easy virtue, her evidence cannot be thrown overboard." So, she is very much entitled to protect her in case of any attempt to violate her as a person.
In furtherance thereof, A legislation was enacted viz; Indecent Representation of Women (Prohibition) Act, 1986. This act recognises individual harasses another with books, photographs, paintings, films, pamphlets, packages, etc. containing the "indecent representation of women", they are liable for a minimum sentence of 2 years. Section 7 (Offenses by Companies) further holds companies where there has been "indecent representation of women" (such as the display of pornography) on the premises, guilty of offenses under this act, with a minimum sentence of 2 years.
The UN convention on Elimination of all forms of Discrimination against Women (In short CEDAW), which was ratified by the Govt. of India in 25.06.1993 which includes a. A definition of sexual harassment. b. Shifting accountability from individuals to institutions c. prioritising prevention and d. provision for an innovative redressal mechanism.
The landmark Vishaka case (1997) the Apex court described in detail and framed an exhaustive guideline to deal with harassment complaints at work place. The court stated that these guidelines were to be implemented until legislation is passed to deal with the issue. The court emphasized that in consideration of "International Conventions and norms which are significant for the purpose of interpretation of the guarantee of gender equality, right to work with human dignity in Articles 14, 15 19(1)(g) and 21 of the Constitution and the safeguards against sexual harassment implicit therein. This Judgment is the first real step towards protecting working women. It's a fact that prior to this, the existing criminal law neither recognised workplace harassment in any form as an offence, nor provided an efficacious remedy to deal with the problem.
In the year 2004, A PIL Viz; Sakshi Vs Union of India was filed seeking an enforcement of fundamental rights of working women under article 14, 19 and 21 of the constitution of India in view of the then prevailing climate. It has been held that all employers should take appropriate step to prevent sexual harassment:
As regards private employees, steps should be taken to include the prohibition in these standing orders under the Industrial Employment (Standing Orders) Act, 1946. Further, the employer has been directed to initiate criminal action by making a complaint in cases where specific offence of sexual harassment has taken place. He is also required to initiate disciplinary action. The above guidelines are in addition to rights available to women under the Protection of Human Rights Act, 1993. The said judgment has been followed in the year 2012 in the case titled Medha Kotwal Lele Vs. Union of India wherein Medha Kotwal Lele, a coordinator of Aalochana, a centre for documentation and research on women and other women's rights groups, together with others, petitioned the Apex Court highlighting a number of individual cases of sexual harassment and brought to the notice of the Court that the Vishaka Guidelines were not being effectively implemented and sought mandamus thereupon. The Hon'ble Court in aid of Article 141 issued necessary guidelines in continuance of the guidelines issued in Vishaka Case.
After a long 16 years, The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act) led to an increased awareness on the do's and don'ts in terms of workplace conduct. It mandates that every employer constitute an Internal Complaints Committee (ICC) at each office or branch with 10 or more employees amid many high courts has formed and notified the ICC. However, for an unexplained reason a number of State governments, public sector and private employers have not amended their service rule/statutory orders switching over to one-time trial and the binding nature of the report of the complaint committee. Following upon, the POSH Act and the direction in the case of Ms. Binu Tamta & Ors Vs. High Court of Delhi, "The Gender sensitization & Sexual Harassment of Women at the Supreme Court of India (Prevention, Prohibition and Redressal), Regulation, 2013 came into force. The said regulation is being framed to deal with the complaints of harassment at Supreme Court precinct.
A survey reported that more than 50% women believe sexual harassment at the workplace has increased over the years, and 53% women have been subject to sexual comments, gestures, jokes at the workplace 56% women believe sexual harassment at the workplace. According to the study, close to 80% women are aware of policies against sexual harassment at the workplace, but almost 30% women still hesitate to complain to the internal committee about such incidents. More than half of the respondents surveyed would not or are not sure about continuing to work in the same place where the incident of sexual harassment case occurred, and over 65% women believe sensitisation workshops in companies can ensure that colleagues are fair and supportive to the victim during an incident of sexual harassment.
Women employees are more prompt these days to report any case of sexual misconduct and it is the responsibility of organisations to take speedy action. Prompt action by organisations will act as a deterrent for others, and it will encourage women to come out and report, further Increase in reporting is a good start with as it means there is more awareness and would resulted in coming down. However, despite the awareness and the measures being taken by the government to ensure effective implementation of the law, sexual harassment at workplace remains a highly sensitive issue. From running a reputational risk to huge legal troubles, the road is not easy for employers who are slapped with sexual harassment cases. On the other hand, malicious or fake complaints being filed to exact revenge, discredit certain senior executives or public figures. The main problem associated with malicious complaints from the point of view of any employer is that a lot of productive resources can be unnecessarily wasted. To save valuable resources from getting wasted in dealing with such complaints, it is the employer's responsibility to keep a check on such complaints. Though Section 14 of the POSH Act, do provide an aid to such complaints but setting "deterrent" would be only option to prevent such complaints. Setting a deterrent does not mean creating a hostile environment for filing the Complainant. The objective behind to include this provision is to prevent the misuse of the provisions of the Act. Recently, Delhi High Court has imposed an exemplary cost of ₹ 50,000/- on a woman for filing a false complaint of sexual harassment against her senior official and dismissed her plea challenging the benefit of doubt given to him by the Complaint Committee.
This beneficial piece of legislation already marked and yet to travel a long way. Mere formulation of anti-sexual harassment policy and constitution of an internal complaints committee cannot be said to curb the complaints of harassments, as there are several other obligations for complying the law which includes repetitive training, putting up posters, organizing seminars much less awareness among the colleagues in the workplaces. Besides this prioritising prevention and establishing a redress mechanism, which comprises of more than fifty per cent women, a woman chair and an external third party expert, is an innovative model in responding to working women's complaints of sexual harassment. Assuming adequate changes follow, in both law and practice to meet global benchmarks, that model can evolve into an exemplary best practice. To get there, workplaces in India today, must rise to the requirement of promoting the friendly and gender equal environment. Needless to say that a safe environment is a right of every working women.
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(The author is the Member of the GSICC, Supreme Court)