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Sexual Harassment At Workplace Is An Affront to Women's Fundamental Rights: SC

You can tell the condition of a nation by looking at the status of its women.-Pandit Jawaharlal Nehru

Sexual harassment of women is a global phenomenon prevalent both in developed as well as in developing countries. Cutting across religion, culture, race, caste, class and geographical boundaries it has spread like virus in the society. It, being offensive to human dignity, human rights and gender equality, has emerged as a fundamental crisis the world over. It is a complex issue involving women, their perceptions and behaviour, and the social norms of the society which emerges from gender discriminatory attitudes and is a complex interplay of gender, power and sexuality.

With improved access to education and employment, millions of Indian women are entering the country’s workforce today. Many working women face sexual harassment at workplace on daily basis. It is crucial therefore that as a country, we strive to eliminate work-place sexual harassment since women have the right to work in safe and secure environment. Protection of women is necessary for gender equality and development of nation as a whole.- Maneka Gandhi

Sexual harassment at the work place is an affront to the fundamental rights of a woman, the Supreme Court remarked in Civil Appeal No 1809 of 2020 titled Punjab and Sind Bank & Ors. Vs. Durgesh Kuwar, while upholding High Court Judgment that quashed a transfer of a woman bank employee.

While directing her to be re-posted at the Indore Branch, the Bench comprising Justice Dhananjaya Y. Chandrachud and Justice Ajay Rastogi also said that she will be entitled to a cost of Rs. 50,000.

The Bench said:
There can be no manner of doubt that the respondent has been victimized. Her reports of irregularities in the Branch met with a reprisal. She was transferred out and sent to a branch which was expected to be occupied by a Scale I officer. This is symptomatic of a carrot and stick policy adopted to suborn the dignity of a woman who is aggrieved by unfair treatment at her workplace. The law cannot countenance this. The order of transfer was an act of unfair treatment and is vitiated by malafides.

As enshrined in the Preamble to the Constitution of India, equality of status and opportunity must be secured for all its citizens; equality of every person under the law is guaranteed by Article 14 of the Constitution of India. A safe workplace is therefore a woman’s legal right. Indeed, the Constitutional doctrine of equality and personal liberty is contained in Articles 14, 15 and 21 of the Constitution of India.

These Articles ensure a person’s right to equal protection under the law, to live a life free from discrimination on any ground and to protection of life and personal liberty. This is further reinforced by the UN Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), which was adopted by the UN General Assembly in 1979 and which is ratified by India.

Often described as an international bill of rights for women, it calls for the equality of women and men in terms of human rights and fundamental freedoms in the political, economic, social, cultural and civil spheres. It underlines that discrimination and attacks on women’s dignity violate the principle of equality of rights.

Sexual harassment constitutes a gross violation of women's right to equality and dignity. It has its roots in patriarchy and its attendant perception that men are superior to women and that some forms of violence against women are acceptable.

One of these is workplace sexual harassment, which views various forms of such harassment, as harmless and trivial. Often, it is excused as ‘natural’ male behaviour or ‘harmless flirtation’ which women enjoy. Contrary to these perceptions, it causes serious harm and is also a strong manifestation of sex discrimination at the workplace. Not only is it an infringement of the fundamental rights of a woman, under Article 19 (1)(g) of the Constitution of India to practice any profession or to carry out any occupation, trade or business; it erodes equality and puts the dignity and the physical and psychological well-being of workers at risk.

This leads to poor productivity and a negative impact on lives and livelihoods. To further compound the matter, deep-rooted socio-cultural behavioural patterns, which create a gender hierarchy, tend to place responsibility on the victim, thereby increasing inequality in the workplace and in the society at large.

Sexual harassment at workplace is an extension of violence in everyday life and is discriminatory and exploitative, as it affects woman's right to life and livelihood. In India, for the first time in 1997, a petition was filed in Supreme Court of India to enforce the fundamental rights of the working women, after the brutal gang rape of Banwari Devi, a social worker from Rajasthan.

As an outcome of the landmark Judgment of Vishaka & Ors Vs State Of Rajasthan & Ors, AIR 1997 SC 3011, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 was enacted, wherein, it was made mandatory for every employer to provide a mechanism to redress grievances pertaining to workplace sexual harassment and enforce the right to gender equality of working women.

With the enactment of the Act, India is a part of a select group of the countries to have prohibited sexual harassment at workplace through national legislation. The Act is unique in its broad coverage which includes all working women from the organized as well as the unorganized sectors alike, as also public and private sectors, regardless of hierarchy.

What is Sexual Harassment?

As a result of growing importance of issue of the Sexual harassment, Section 354-A was added to the Indian Panel Code, by way of Criminal Law (Amendment) Act, 2013 which enlists the acts which constitutes the offence of sexual harassment.

They are:

  • Physical contact and advances involving unwelcome and explicit sexual overtures; or
  • a demand or request for sexual favours; or
  • showing pornography against the will of a woman; or
  • making sexually coloured remarks

Earlier, there were no related laws in the Indian Penal Code that could be evoked. There were three Sections in Indian Penal Code viz. S. 94, 354 and 509 to deal with such crimes. However, these related laws are framed as an offence that either amount to obscenity in public or acts that are seen to violate the modesty of women. While Section 294 IPC is a law applicable to both men and women, the latter two are specifically oriented towards women.

Constitutional Safeguards Against Sexual Harassment at Workplace

The Constitution of India ensures and guarantees every individual the right to practice any profession, or to carry on any occupation, trade or business as enshrined under Article 19 (1)(g). Every woman has a constitutional right to participate in public employment and this right is denied in the process of sexual harassment, which compels her to keep away from such employment.

Sexual harassment of woman at the place of work exposes her to a big risk and hazard which places her at an inequitable position vis-à-vis other employees and this adversely affects her ability to realize her constitutionally guaranteed right under Article 19(1)(g) of Constitution of India. Sexual harassment of women at workplace is also a violation of the right to life and personal liberty as mentioned in Article 21 of Constitution of India that no person shall be deprived of his life or personal liberty.

Right to livelihood is an integral facet of the right to life. Sexual harassment is the violation of the right to livelihood. For the meaningful enjoyment of life under Article 21 of the Constitution of India, every woman is entitled to the elimination of obstacles and of discrimination based on gender. Since the Right to Work depends on the availability of a safe working environment and the right to life with dignity, the hazards posed by sexual harassment need to be removed for these rights to have a meaning.

The preamble of the Constitution of India contemplates that it will secure to all its citizens- Equality of status and opportunity. Sexual harassment vitiates this basic motive of the framers of the Constitution of India.
The concept of gender equality embodied in our Constitution would be an exercise in ineffectiveness if a woman’s right to privacy is not regarded as her right to protection of life and liberty guaranteed by Article 21 of the Constitution of India. In view of the fact that sexual harassment of women at the workplace violates their sense of dignity and the right to earn a living with dignity, it is absolutely against their fundamental rights and their basic human rights.

Development of Law on Sexual Harassment in India

A fruitful and meaningful life presupposes full of dignity, honour, health and welfare. In the modem Welfare Philosophy, it is for the state to ensure these essentials of life to all its citizens and if possible to non-citizens. While invoking the provisions of Article 21 of Constitution of India, and by referring to Better to die ten thousand deaths than wound my honour.

The Supreme Court of India in Khedat Mazdoor Chetana Sangath Vs. State of Madya Pradesh & Ors., 1994 AIR SCW 4026, posed to itself a question if dignity or honour vanishes what remains of life?

This is the significance of the right to life and personal liberty guaranteed under the Constitution of India. Article 21 of Constitution of India which forms the arc of fundamental rights guaranteed under Part -IH of the Constitution of India enshrines that:
No person shall be deprived of his life or personal liberty except according to the procedure established by law

Article 21 of the Constitution of India has its origin during the early 13th century AD in the 39th Chapter of Magna Carta, a Charter of English liberty. It plays the same role which the ‘Due Process Clause’ plays under the American Constitution and also under the Japanese Constitution.

The Supreme Court in its interpretation of the ‘right to life’ under Article 21 of the Constitution of India has on many occasions stressed that, the right to life could not be equated to living out a mere animal existence. [Francis Coroli Vs. Administrator, Union Territory of Delhi, (1981)1 SCC 608; Olga Tellis Vs. Bombay Municipal Corporation, (1985) 3 SCC 545]. The right to life would necessarily imply the right to live with human dignity and would include those aspects of life that make life meaningful, complete and worth living.

Gender discrimination has been recognized as an obstacle to the full realization of the right to life under Article 21 of the Constitution of India. In C. Masilamani Mudaliar Vs. Idol of Sri Swaminathaswami Thirukoif, 1996 AIR 1697, the Supreme Court held that equality, dignity of person and the right to development are inherent rights in every human being. For the meaningful enjoyment of the right to life under Article 21, every woman is entitled to the elimination of obstacles and of discrimination based on gender. The Supreme Court reiterated that the State has an obligation to eliminate gender-based discrimination and to create conditions and facilities conducive for women to realise the right to economic development, including social and cultural rights.

In Bodhisattava Gautam Vs. Subhra Chakraborty, (1996) 1 SCC 490, the Supreme Court stated that women have the right to life and liberty under Article 21 of Constitution of India. Similarly, they also have the right to be respected and treated as equal citizens. The Supreme Court held that offences of rape were acts of aggression aimed at degrading and humiliating women. Such offences were crimes against basic human rights and are also violative of the fundamental right to life under Article 21. The Judges emphasized that the ... dignity of women cannot be touched or violated. Thereby, the right to life includes the right of women to live with dignity and to lead a peaceful life.

The Vishaka Judgement Workplace sexual harassment in India, was for the very first time recognized by the Supreme Court of India in its landmark judgment of Vishaka & Ors Vs State Of Rajasthan & Ors, AIR 1997 SC 3011. Vishaka & other women groups filed Public Interest Litigation against State of Rajasthan & Union of India to enforce the fundamental rights of working women under Articles 14, 19 and 21 of the Constitution of India. The Petition was filed after Bhanwari Devi, a social worker in Rajasthan was brutally gang raped for stopping a child marriage. The Supreme Court of India created legally binding guidelines basing it on the right to equality and dignity accorded under the Indian Constitution as well as by the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).

The guidelines were:

  1. It shall be the duty of the employer or other responsible persons in workplaces or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps required.
     
  2. Sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as:
    (a) physical contact and advances;
    (b) a demand or request for sexual favours;
    (c) sexually-coloured remarks;
    (d) showing pornography;
    (e) any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
     
  3. All employers or persons in charge of workplace whether in the public or private sector should take appropriate steps to prevent sexual harassment. Without prejudice to the generality of this obligation they should take the following steps: (a) Express prohibition of sexual harassment as defined above at the workplace should be notified, published and circulated in appropriate ways. (b) The rules/regulations of government and public sector bodies relating to conduct and discipline should include rules/regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender. (c) As regards private employer’s steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946. (d) Appropriate work conditions should be provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at workplaces and no woman employee should have reasonable grounds to believe that she is disadvantaged in connection with her employment.
     
  4. Where such conduct amounts to a specific offence under the Indian Penal Code or under any other law, the employer shall initiate appropriate action in accordance with law by making a complaint with the appropriate authority. In particular, it should ensure that victims, or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment. The victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer.
     
  5. Where such conduct amounts to misconduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules.
     
  6. Whether or not such conduct constitutes an offence under law or a breach of the service rules, an appropriate complaint mechanism should be created in the employer's organization for redress of the complaint made by the victim. Such complaint mechanism should ensure time-bound treatment of complaints.
     
  7. The complaint mechanism, referred to in (6) above, should be adequate to provide, where necessary, a Complaints Committee, a special counsellor or other support service, including the maintenance of confidentiality. The Complaints Committee should be headed by a woman and not less than half of its members should be women. Further, to prevent the possibility of any undue pressure or influence from senior levels, such Complaints Committee should involve a third party, either NGO or other body who is familiar with the issue of sexual harassment. The Complaints Committee must make an annual report to the Government Department concerned of the complaints and action taken by them. The employers and person-in-charge will also report on the compliance with the aforesaid guidelines including on the reports of the Complaints Committee to the Government Department.
     
  8. Employees should be allowed to raise issues of sexual harassment at workers’ meeting and in other appropriate forum and it should be affirmatively discussed in employer-employee meetings.
     
  9. Awareness of the rights of female employees in this regard should be created in particular by prominently notifying the guidelines (and appropriate legislation when enacted on the subject) in a suitable manner.
     
  10. Where sexual harassment occurs as a result of an act or omission by any third party or outsider, the employer and person-in- charge will take all steps necessary and reasonable to assist the affected person in terms of support and preventive action.


Post Vishaka Developments

Pursuant to Vishaka Judgement, the Central Civil Services (Conduct) Rules 1964, were amended in 1998 to incorporate R. 3C which prohibits sexual harassment of working woman. The first case before the Supreme Court after Vishaka in this respect was the case of Apparel Export Promotion Council Vs. A.K Chopra, AIR 1999 SC 625. In this case, the Supreme Court reiterated the law laid down in the Vishaka Judgment and upheld the dismissal of a Superior Officer of the Delhi based Apparel Export Promotion Council, who was found guilty of sexually harassing a subordinate female employee at the workplace. In this Judgment, the Supreme Court enlarged the definition of sexual harassment by ruling that physical contact was not essential for it to amount to an act of sexual harassment.

Further the Apex Court in its Judgement in Medha Kotwal Lele & Ors. Vs. Union of India & Ors, 2013 (1) SCC 297 took cognizance and undertook monitoring of implementation of the Vishaka Guidelines across the country by directing State Governments to file affidavits emphasizing on the steps taken by them to implement the Vishaka Guidelines. Not being satisfied, it directed States to put in place sufficient mechanisms to ensure effective implementation of the Vishaka Guidelines.

Finally, the Supreme Court asserted that in case of a non-compliance or non-adherence of the Guidelines, it would be open to the aggrieved persons to approach the respective High Courts. The Apex Court also directed that the Complaints Committee as envisaged in the Vishaka Judgement will be deemed to be an Inquiry Authority for the purposes of Central Civil Rules, 1964 and the report of the Complaints Committee will be deemed to be an Inquiry Report under those Rules.

In pursuance of this direction, the Central Government (Department of Personnel and Training) amended Central Civil Services (Classification, Control and Appeal) Rules, 1965, R. 14, sub-r. (2) to incorporate the necessary provision.

Amendment in Indian Panel Code, Post Nirbhaya Case in 2013

  • Section 354A. Sexual harassment
  • Section 354B. Forcing a woman to undress
  • Section 354C. Watching or capturing images of a woman without her consent (voyeurism).
  • Section 354D. Following a woman and contacting her or trying to contact her despite her saying she does not want contact. Monitoring a woman using the internet or any other form of electronic communication (stalking).


Conclusion:

In this century it is very important to have gender sensitive workplace which would fulfil the needs of its employees specially the needs of the women. Many workplaces and not still gender sensitive, many people are still not aware about workplace harassment. Taking this scenario in mind it is essential to develop capacities and start a process of individual thinking. Rules norms and laws are always their but enactment and implementation is necessary and to understand this awareness is needed.

The implementation of sexual harassment Act would ensure safe and healthy work environment for women. Legal enactment for both male and female is needed for proper development of our society. Women in our Indian society take legal reporting as the last resort as they do not want any extra challenge to make their life more vulnerable.

They fear answering the society and also facing the organization and answering them. Providing a safe working environment for everyone specially women is the duty of the employer. While companies should seriously think about their corporate responsibilities, as companies should provide safe harassment free environment to every women.

This would lead to companies benefit as everyone can work freely. With the march of civilisation, the impact of social chances and developmental efforts benefit the women much less than man. Social and religious reformers, enlightened public authorities, and women's organisations waged battles against the oppressive position of women through centuries. But still illiteracy, ignorance, superstition still persists in some parts of the country resulting in exploitation of the women labourers.

India is rapidly advancing in its developmental goals and more and more women are joining the work force. The recognition of the right to protection against sexual harassment is an intrinsic component of the protection of the women’s human rights. It is all a step towards providing women independence, equality of opportunity and the right at work with dignity. Sexual harassment at the workplace is a social challenge that needs to be addressed. It is important to enhance the awareness of employers and employees on the existence of forms of sexual harassment at the workplace, preventive measures, and legal framework on preventing and addressing sexual harassment.

Dissemination and awareness raising activities should be regularly conducted and evaluated in order to improve best practice on how to address sexual harassment in the workplace, and also to forewarn and inform of forms of sexual harassment to enable potential victims to avoid them. Enhancing training courses on sexual harassment and providing documentation or a handbook on the prevention of sexual harassment at the workplace can help in combating it.

While a murder destroys the physical frame of the victim, sexual harassment degrades and defiles the soul of a helpless woman.

Written By: Damini Singh Chauhan, Semester 9th, The Law School, University of Jammu.

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