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Sexual harassment: An Endemic to the society

Sexual harassment is the most common form of harassment that women face at their work place. Sexual harassment can be defined as a behavior which includes any act/conduct of a person whether it is of a physical nature or not. It is an act that is totally uncalled for. The most important feature of sexual harassment is that it is one sided and unwanted. It is an on growing problem and all trying their best to tackle this problem by introduction of new policies and measures.

The definition of sexual harassment varies from jurisdiction to jurisdiction and from person to person. It is different for everyone.
The definition of Sexual Harassment in simple words is any unwanted or inappropriate sexual attention. It includes touching, looks, comments, or gestures.

There is a significant difference between sexual harassment and friendship and romance, since both of them constitute the same mutual feelings that people have. It is very important for the victim to acknowledge that it is not her fault that she has gone through sexual harassment; the fault lies with the person who has harassed her.

Sexual harassment is the unwelcome behavior of a person (whether directly or through implication) that includes the following:

  1. Physical contact and advances,
  2. A demand or request for sexual favors,
  3. Sexually colored remarks,
  4. Showing pornography,
  5. Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

However, sexual or romantic interactions between two consenting people might be offensive to others and might also violate the policy of the workplace, but it cannot be considered as sexual harassment.

Sexual harassment usually takes place because one person has a power over the other. It is not merely because of the physical attraction; it's about the power. It is observed that many times the incidents are not being reported because of the fear of the victim. The victim fears of the guilt of the society, or being demoted or fired from her job, fear of jeopardizing their career if the incident is reported. Some women also lack knowledge to what constitutes to sexual harassment and fail to report the same.

It is a widespread problem that is slowly and gradually developing daily. Every country is facing this problem daily. No female worker can be considered safe and there is a lack of sense of security. However there are new laws and policies that are being introduced daily by various countries to protect women workers from sexual harassment.

According to a survey conducted, it was observed that almost 40-70% of women suffer through sexual harassment at their workplace and its percentage is increasing daily. The acts include whistling, passing sexual remarks, kissing sounds, howling, smacking lips, Touching an employee's clothing, hair, or body, touching or rubbing oneself sexually around another person etc.

Formation of the Act
The problem of sexual harassment is not a new one; it is an old phenomenon that has existed for a long time. It has been a part of every woman's life at one point of time in her life. Sexual harassment is a problem that has played a bad role in discouraging women in engaging in the economic and social development of the society and showing the male dominance. It is one of the most offensive and grieving incidents that an employee can suffer while trying to make recognition whether it is a workplace, or an institution.

Women have been facing sexual harassment since the early 80's in India. Action was taken against the sexual harassment of nurses in public and private hospitals by doctors, patients and their male relatives, other staffs, teachers by colleague's principals, students by teachers, professors and other staff in the year 1980. There were many social activists and workers that tried to bring all the cases of sexual harassment to light and fought against Sexual harassment at workplace. There was an incident where the CM of the state of Goa was accused of allegedly harassing his secretary. An NGO namely 'Women's Voice held rallies and demonstrations against the CM until he resigned from his post.

After this incident, a PIL was filed by the same NGO in order to bring amendments to the old rape law which defined a heinous crime like rape in a narrow sense in the year 1990.
It was held by the Supreme Court in the landmark judgment of Vishaka and others v/s. State of Rajasthan that sexual harassment at workplace is recognized as a violation of human rights and also a personal injury to the woman who has faced harassment.

The judgment laid down the guidelines and the rules to be followed by the employer for preventing and redressel of complaints by women who are sexually harassed at a workplace. The guidelines put the employer under the obligation of providing a safer and a healthy environment at the workplace. It is the duty of the employer and other responsible persons in workplace to prevent or deter any acts of sexual harassment from taking place.

Before the Vishaka judgment there were no guidelines for Sexual harassment and women had to file complaint under section 354 and section 509 of the Indian Penal Code. All the guidelines were accumulated after considerable elimination of forms of Discrimination against Women (CEDAW) before the Vishaka judgment in India after thorough analysis of previous cases since no law was incorporated before for such matters.

The Vishaka Judgment led to the initiation of a countrywide debate on workplace sexual harassment and threw out wide open an issue that was thrown under the carpet for the longest time. The first case which came before the Supreme Court after Vishaka in this respect was the case of Apparel Export Promotion Council v. A.K Chopra.

The Supreme Court in this case put forward a wider definition of sexual harassment by ruling that physical contact was not essential for it to amount to an act of sexual harassment. It was explained by the Supreme Court that:
sexual harassment is a form of sex discrimination projected through unwelcome sexual advances, request for sexual favours whether it may be verbal or physical conduct with sexual overtones, whether or not directly or by implication, significantly when submission to or rejection of such conduct by the female worker was capable of being used for affecting the employment of the female worker and unreasonably interfering with her work performance and had the effect of resulting in an discouraging or hostile work environment for her.

POSH ACT, 2013

The first ever legislation in India that directly self addressed to the issue of Harassment at workplace; the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act) was enacted by the Ministry of Women and Child Development, India in 2013.

The Government also additionally notified that the rules under the POSH Act titled the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 (POSH Rules).

The year 2013 was also the witness of the promulgation of the Criminal Law (Amendment) Act, 2013 (Criminal Law Amendment Act) which has criminalized felonies such as sexual harassment, stalking and voyeurism.

The POSH Act, 2013 was passed in order to safeguard women from Sexual Harassment at workplace and to seek redressal for the complaints filed against sexual harassment. The statue is aimed at providing dignified working environment, free from all forms of harassment, although proper implementation of the provisions of the statute still remains a challenge.

Although the act has been in force since 2013, there is a lack of knowledge on the side of the people as to what constitutes sexual harassment and what does not, obligations of an employer, remedies/safeguards available to the victim, procedure of the investigation, etc. Many people are still not fully aware of the consequences of doing such an act.

The POSH Act protects only women workers and is not a gender-neutral legislation. Therefore, the POSH Act does not provide for provisions for the 'men victims' and are not applicable to them. It is defined under the POSH Act that 'sexual harassment' in line with the Supreme Court's definition of 'sexual harassment' in the Vishaka Judgment. According to the POSH Act, sexual harassment includes unwelcome sexually tinted behaviour, whether directly or by implication, such as:
  1. physical contact and advances,
  2. demand or request for sexual favours,
  3. making sexually coloured remarks,
  4. showing pornography, or
  5. Any other unwelcome physical, verbal or non-verbal conduct of a sexual nature.
The definition of sexual harassment under the POSH Act is wide enough to cover both direct or implied sexual conduct which may involve physical, verbal or even written conduct. It is included in the act, a form of sexual blackmail (which if translated in English, would mean this for that) known as quid pro quo sexual harassment. Many forms of sexual harassment such as sexual assault are inherently offensive and egregious, and may need to occur only once for it to be treated as sexual harassment.

Complain Mechanism
Whether the act which is committed results to an offence or not under the law, or a breach of the services rules, it is important for the formation of a complain mechanism to be created in the organization of the employer for the redressal of the complaint that is made by the victim against sexual harassment.

The POSH Act, 2013 requires the formation of such complaint mechanism to ensure time bound treatment of complaints.

Internal Committee
Moreover, the POSH Act requires for the formation of an Internal Committee (IC) by the employer in each organization or workplace having a workforce of more than 10 people to hear and redress grievances pertaining to sexual harassment. The failure to do so results in imposing of a fine under the POSH Act, 2013.

Following are the requirements for the Internal Committee:
  1. Presiding Officer - Woman employed at a senior level at the workplace from amongst the employees.
  2. Members - Not less than 2 members from amongst employees. Those who are committed to the cause of women or who have had experience in social work or have legal knowledge.
  3. External member - From an NGO or association committed to the cause of women or person familiar with issues relating to sexual harassment.
  4. Not less than half of the IC Members shall be women
  5. The term of the IC Members shall not exceed 3 years
  6. A minimum of 3 Members of the IC including the Presiding Officer are to be present for conducting the inquiry.

Local Committee
It is the duty of the government for constituting a committee at the district level for registering complaints against sexual harassment at workplace. It is the duty of this committee to investigate and redress the complaints filed where the Internal committee is not created on account of the establishment having less than 10 employees. This committee generally deals with the cases of Sexual harassment of domestic workers or where the complaint is against the employer himself or a third party who is not an employee.

Following are the requirements for the Local Committee:
  1. Chairperson - An eminent woman in the field of social work and committed to the cause of women.
  2. Local Woman - One of the members to be nominated from amongst the women working in block, taluka, tehsil or ward or municipality in the district.
  3. NGO members Two members, out of which, at least one shall be a woman to be nominated from a NGO or an association committed to the cause of women or a person who has dealt with issues related to sexual harassment

  1. At least one of the members should have a background in law.
  2. At least one of the members should be a woman belonging to the Scheduled Castes or Scheduled Tribes.

Powers of the IC/LC

The POSH Act specifies that the IC and LC shall, while inquiring into a complaint of workplace sexual harassment, shall have the same powers as vested in a civil court under the Code of Civil Procedure, 1908 when trying a suit in respect of:
  1. Summoning and enforcing the attendance of any person and examining him on oath;
  2. Requiring the discovery and production of documents; and
  3. Any other matter which may be prescribed.

If an aggrieved woman intends to file a complaint against a person then she is required to submit 6 copies of the complaint, along with all the necessary documents which will include the names and the addresses of all the witnesses to the IC or the LC, within 3 months from the date of the incident. If there are a series of events then it has to be filed within 3 months from the date of the last incident. The IC or LC will record in writing if there is a reasonable delay in the submission of the documents.

The IC on the request of the aggrieved woman can make certain efforts to solve the matter between both the parties through conciliation through the medium of an amicable settlement. Conciliation can be considered as an informal method of resolving complaints before the complaint escalates into a fully blown formal inquiry. Thus, after the aggrieved woman has registered the complaint against sexual harassment, she can request the IC to resolve the matter between both the parties through conciliation.

If both the parties come to a conclusion through an amicable settlement then the IC and the LC (as the case maybe) shall record in writing, the settlement arrived at and thereafter provide both the parties with the copies of the settlement.

Punishment And Compensation

The following punishments may be implied to an employee by the employer under the POSH Act, 2013:

  1. Punishment that has been prescribed under the service rules and regulations of the organization.
     
  2. If the organization is lacking a set of service rules disciplinary action including written apology, warning, reprimand, censure, with holding of promotion, withholding of pay rise or increments, terminating the respondent from service, undergoing a counseling session, or carrying out community service; and
     
  3. The wages of the respondent might be deducted in order for compensation to be given to the aggrieved woman.

False Complaints And Consequences
If the IC or the LC after conducting the investigation, have a reasonable ground to believe that the complaint was made with a malicious intent knowing it to be forged or misleading then disciplinary action will be taken against the complainant in accordance with the service rules of the organization.

Where the organization does not have service rules, it is provided in the statue that disciplinary action such as written apology, warning, reprimand, censure, withholding of promotion, withholding of incremental pay rise, terminating service, counseling session, or undertaking community service may be taken.

Consequences Of Non-Compliance
If the employer fails to form an IC then he will be charged for a monetary penalty of up to Rs 50,000/- which may be imposed under the POSH Act. If the same offence is committed again then the respondent then it will result in the punishment being doubled and even lead to the revocation of any business licenses.

If the respondent fails to pay the sum decided for compensation by the IC or the LC, then the IC might order for the recovery of the same as an arrear in land revenue to the district officer concerned.

Conclusion And Suggestions
The Act still is criticized by a lot of NGO's because the fine to be imposed on the respondent is to be decided on the basis of his income and financial stability which means that a person with higher salary will pay a higher fine as compared to a person with a low salary.

Moreover the Act does not cover the agricultural workers, armed forces (a sector which is heavily dominated by men). Enquiries done in armed forces are kept confidential within the closed rooms which should be undone. The act also lacks the mechanism to cope up with situations like men being sexually harassed.

One can stop sexual harassment by starting to confront rather than blaming anyone. The employer has the moral obligation to support the victim in filing the complaint as well as during investigation. Moreover it is the duty of the employer to provide with a safe and harassment free environment for working.

In the end I will like to conclude that women should not fear will coming forward with their problems and complaints. They must feel courageous to speak out for themselves and taking action against the person who has sexually harassed them. There must be greater involvement of public in awareness programmes and they must play a greater participatory role in governance. The wronged woman must get justice but at the same time a man should not be wronged as well.

The principles of socialism and social justice should not be pushed to extremities so as to become a weapon in the hands of few to be misused for ulterior motives. The right balance must be struck. The workplace environment should be such that the harassment matters do not go unreported and at the same time men should not be made to undergo torture and humiliation on account of false complaint.

Written By: Deepanshu Gurnani

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