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Sexual Harassment of Women; A detailed study of its criminal liability at workplace

Sexual Harassment is the unwanted behaviour exhibited by someone, irrespective of the gender which is of a sexual kind that makes an individual feel uncomfortable and humiliated. Now let's talk about how these sexual harassments takes place and what type of impact it can make. It is when someone, who calls you in a sexual way and spreads rumors about you such as commenting on your body type; creating a bad and unfriendly environment around you. Sexual harassment can happen in front of someone, over a phone call or maybe over online medium resulting to depression, anxiety and can also lead to problems like sleeping disorders.

Talking about the status of women in India, it has seen many ups and downs over the years, starting from post-independence period of 1950 till 2020. It is a very harsh reality that women across India face exploitation but very few have the ability to raise their voices against it because of lack of family support, lack of education, social stigma and low literacy level, basically in the rural areas.[1] In the later point of time, we can see that the Supreme Court set a few guidelines and it took the parliament 16 years to make this into a law. In this research paper we are going to deal with the amendments made by the government and to look if they are effective or not.

Basic Introduction To Sexual Harassment:

One can face sexual harassment at workplace which deliberately makes an unwanted and stressful atmosphere for the employee to work there leading him/her anxious about going to work. According to a survey from non-profit Stop Street Harassment, it is found that the majority of women in their workplace faces these type of harassments and half of the male does too. It is said that people had experienced sexual abuse in different sectors such as in public spaces, school, college and even at their home.

The study found out that nationwide, 81% of women and 43% of men reportedly experienced some form of sexual harassment and/or abuse and assault in their lifetime, according to Holly Kearl, a founder of Stop Street Harassment and the study's author.[2] As per the facts and figures, public places were the most frequent location of getting harassed with an whopping (66%), followed by temporary jobs and internships (38%) and lastly at their own house (35%). Most of the cases went unreported, even when any men or women has been catcalled and verbally got harassed in the streets. Out of 10 women and out of 20 men also 1 of them usually tries to change their jobs or quit going to work just to avoid the harassment and has the guts to file a complaint to the police or their authority. Sexual harassment is considered to be a discrimination which is very much unlawful under the Equality Act 2010.[3]

It restricts three types of sexual harassments in a workplace, firstly the unwanted conduct of a sexual nature to someone like sexual advances. The unwanted conduct doesn't always mean that it's related to actual sex or happening of a sexual assault but can also include mean jokes about women or making sexist remarks about them. The least favourable treatment can happen on a women's rejection to her boss's sexual advances like appealing and intimidating her for promotion or increase in salary on her submission to those harassments.[4] The main outlook of the law and the inception of the guidelines, which are made by the Supreme Court of India came from the NGO named Vishaka, on an incident that took place in Rajasthan in the year 1997. This was the case when supreme court first noted that there was a lack of legal authority against sexual harassment. Before the Supreme Court set the law against sexual harassment at workplace in order, such cases were dealt under IPC Section 354 (outraging the modesty of women) and Section 509 (using a word, gesture or act intended to insult the modesty of a woman).[5]

Just after the Supreme Court gave the judgement to the case of Vishaka and Ors V/S. State of Rajasthan (AIR 1997 SC 3011), situations were still the same and not under the control; there were no such efforts to enact a law. Very few committees were set up for lodging complaints and the judgement was not taken seriously by people.[6] After the legislation finally brought in the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, the woman of the country got a ray of hope seeking prevention against sexual harassment though the awareness among people continue to be very dim.[7]

This Act seeks to guard women from harassment at their place of work in an exceedingly abundant wider sense. Despite the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013[8], which seeks protection of women at workplace came into force, still most of the cases of sexual assault or may it be harassment went unreported, even when any women have been catcalled and verbally got harassed in the streets. A national survey from non-profit Stop Street Harassment reveals that, Out of 10 women and out of 20 men, only 1 of them usually tries to change their jobs or quit going to work just to avoid the harassment and has the guts to file a complaint to the police or their authority[9].

It seems like the Government is now to be held liable for bringing in new laws which will be much stricter in taking actions. There are numerous cases of Sexual Harassments that takes place in our country. Not only women at their workplace gets verbally abused and are looked in bad ways but also gets assaulted and also sometimes we can see their fellow colleagues making mere sexist remarks. According to National Crime Record Bureau, more than 32,500 cases of rape were registered with the police in 2017, about 90 a day, according to the most recent government data. Indian courts disposed of only about 18,300 cases related to rape that year, leaving more than 127,800 cases pending at the end of 2017.[10]

Inception Of The Guidelines:

This Chapter deals with the inception of the Guidelines, the status of women in India has seen a lot of changes over the time, starting from the post independent period of 1950's till 2020. People root out practices such as female infanticide, child marriage, dowry and the concept of Sati, but that took a long time for people to understand. Women are the ones who looked into as a tool in our society till now and they are relegated to the household works, submitting to the male dominant society. But their impact and dedication towards the nationalist struggle was not less than any other men, still they were dragged down to become homemakers and to support their men in building up a proper space for themselves.

Women always had the only role of a wife, and if a woman ventured out to work, she was seen as a bad and, cruddy women in front of the society. Women were only expected to look after their family and children and wasn't allowed to study and neither to work in the leading sectors. They also faced discrimination while working in the same workplace as of a man, such as tremendous pay-cut in their wages while putting up the same efforts, what a man did.[11]

Now slowly women feel more empowered and started to come forward rather than suffer in silence, raising their voice which led to forced stop them. Men have never been able to submit to the women's intelligence and this is the main root cause for sexual abuse and harassments towards them. An incident happened in the year 1992, when Bhanwari Devi a social worker in Rajasthan while trying to stop a child marriage, got brutally gang raped by a number of men. Bhanwari Devi was very much determined to get justice and henceforth lodged a complain against the wrongdoers. However, the accused was acquitted by a trial court and the case was too lenghty. This grievous injustice towards Bhanwari Devi, inspired several women's groups and NGOs to file a petition in the Supreme Court under the collective name of Vishaka and opened their eyes to fight for women.

In the case of Vishaka and Ors V/S. State of Rajasthan (AIR 1997 Sc 3011), a woman named Bhanwari Devi was gang raped by a group of Thakurs, as a punishment for trying to stop a child marriage in their family and this particular incident brought in the Supreme Court guidelines. Bhanwari Devi, a social worker in her village who was involved with the development programme initiated by the State of Rajasthan. Her work was to fight against child and multiple marriages in the village and as a part of her work she tried to stop the marriage of Ramkaran Gujjar's infant daughter, with the order of the local administration. But her attempt was unsuccessful and marriage took place anyhow, whereas the family of Gujjar was very much furious with Bhanwari Devi.

On a certain day of September 1992, she was gang raped by a group of 5 men, while working in front of her husband. The doctor refused to examine her and only confirmed her age without even having any reference of rape in the report. Even at the police station, she got harassed and taunted by a female police constable and was told to leave her lehenga there as an evidence. She had to wear her husband's bloodstained dhoti, and had to return to the village at night as their pleas for sleeping at the police station was turned down. After all these, Bhanwari Devi didn't let her down and was very much determined to fight and get justice.

The accused were acquitted by the trial court and were discharged for not being found guilty saying that it was a case of gang 2rape which is done as a revenge, though her determination inspired a lot of women across the country and with all the women's group and NGO's support, a new program was launched for the justice of Bhanwari Devi, under the name Vishaka. The groups had filed a petition to the Supreme Court with the plea of having certain directions to what needs to be done when a woman faces sexual harassments at their workplace. As a matter of fact, on 13th of August 1997, the Supreme Court came out with its guidelines and from then it is termed as the “Vishaka Guidelines”[12]

Judgement And It's Post Scenario:

In this chapter we will see the effect of the Vishaka Judgement and its post scenario.
Just after the Vishaka's judgement, situations were still not under the control and there was no such efforts to enact a law. Very few committees were set up for lodging complaints and the judgement was not taken seriously by people. The only positive side of it, was that many organisations became aware of these types of harassment and knew about the rights which are provided to a woman. No sooner another incident happened in M.S. University at Baroda where, a student got harassed by her professor and there was a huge protest by groups of women, filling writ petition. This case was taken into consideration by following the Vishaka's guidelines.

Consultations were organised to make the Vishaka guidelines even more strong and Supreme Court passed two interim orders in this matter. First, asking several institutions to follow every steps of the vishaka guidelines and secondly, which came in the year 2004 stated that whatever the complaint committees under Vishaka conducts regarding any cases related to sexual harassments, it would be taken as the final one. The Solicitor General of India made a statement on behalf of the Central Government that there needs to be a law passed on this particular subject. In the view of this, National Commission for Women (NCW) prepared a draft bill on sexual harassment in 2001. The draft was circulated among various organisations and NCW conducted various meeting to have consultations and ultimately the bill was made for civil remedies.[13]

Sexual Harassment At Workplace (Prevention, Prohibition And Redressal) Act, 2013:

Sexual Harassment At Workplace (Prevention, Prohibition And Redressal) Act, 2013 includes several provisions of the Vishakha Guidelines, that first thing that's required, is the formulation of “a code of conduct for work place.” The Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act, 2013 tends to protect women from harassment at their place of work in an exceedingly abundant broader sense.

The Bill was first introduced by Women and Child Development Minister Krishna Tirath in 2007 and approved by the Cabinet Union in Jan 2010 and got linked with Lok Sabha in Dec 2010 and observed the Parliamentary commission on Human Resources Development. The committee's report was printed in November 2011, the Cabinet Union approved change to incorporate domestic employees in the year 2012. The amended Bill finally elapsed the Lok Sabha in September 2012.

In the month of February, of the year 2013 the Bill elapsed in Rajya Sabha. It got the approval of the President of India on April 2013 and finally came into force in December 2013.

The important provisions of this act are strictly mentioned and are as follows:
  1. The definition of “aggrieved woman”, WHO can get protection beneath the Act is extraordinarily wide to hide all girls, no matter her age or employment standing, whether she is working within the organized sector or the unorganized sector, public or personal and it also covers purchasers, customers and domestic employees similarly
  2. The Act defines harassment at the work place and provides a mechanism for redressal of complaints and also safeguards against the false charges.
  3. Whereas the “workplace” within the Vishaka tips is confined to the normal workplace set-up wherever there's a transparent employer-employee relationship, the Act goes abundant additional to incorporate organisations, department, office, branch unit etc. within the public and personal sector, organized and unorganized sectors, women working in hospitals, nursing homes, academic establishments, sports institutes, stadiums, sports advanced and anyplace visited by the worker throughout the course of employment and also during their time of transportation.
  4. Each leader is needed to represent an interior Complaints Committee at every workplace or branch with ten or a lot of staff. The District Officer is needed to represent a neighbourhood Complaints Committee at every district, and if needed at the block level.
  5. The Committee is needed to complete the inquiry inside a fundamental quantity of ninety days. On completion of the inquiry, the reports are sent to the leader or the District Officer, because the case could also be, they're mandated to require action on the report inside sixty days.
  6. The Complaints Committees have the powers of civil courts for gathering proof.
  7. The Complaints Committees square measure needed to supply for conciliation before initiating Associate in Nursing inquiry, if requested by the litigant.
  8. Penalties are prescribed for employers. Non-compliance with the provisions of the Act shall be punishable with a fine of up to fifty thousand.[14]

Laws Related To Sexual Harassment:

The laws those are related to sexual harassment in our country are as follows and this particular area talks about them:
Any kind of conduction of sexual harassment, can also constitute an offence and can be penalized under the IPC. Prior to the Criminal Amendment Act, 2013 it was brought within the scope or extent of Section 354 which made any act outraging the modesty of a woman is considered to be a crime. After the said amendment, Section 354A of the Indian Penal Code, has been inserted to make sexual harassment a particular offence.

The following sections address the offence of sexual harassment:
Section 294:
Obscene acts in any public place, singing obscene songs to annoy others. Violation of all these can lead to the Punishment under this Section and Imprisonment for a term of up to 3 months or fine, or both can be charged against the offender.

Section 354 (A):
Commitment of any physical contact, unwelcomed and explicit sexual touches; or demanding sexual favours; or showing pornography against the will of a woman; or making racial sexual discrimination, shall be guilty of the offence of sexual harassment. It entitles a punishment of rigorous imprisonment for a term which may extend to three years.

Section 509: Uttering any word or making any unaware or uninvited gesture intended to insult the modesty of a woman and breaching her privacy. The offender is punished with simple imprisonment for a term which may extend to three years, and also with fine.[15]

CONCLUSION:
Sexual harassment is a violation to women's fundamental rights, and falls against the human rights set by UDHR or the CEDAW. In a democratic country like India, it is important that the rights of both the genders must be equally protected. Vishaka case of sexual harassment of women at workplace is a landmark judgment as per the Supreme Court of India. Not just because there had been attack on a women's basic right that to without concern and prejudice. It is an adventure story of a girl from the village, whose work was to safeguard the children and she was following her duty. It is her right that she showed exemplary bravery to fight against the male ego of our immoral society.

It is a very harsh reality that women across India face exploitation but very few of them could raise their voices against it due to lack of education, social stigma and low literacy level, basically in the rural areas and along with it they don't get the family support in this type of cases. Our basic motive should be to introduce a culture in which every woman shall have a right to be free from sexual harassment and also to the right to work in a zone which is free from distressing and awful environment. We should see that every person can live with respect and dignity free from mental and physical torture irrespective of their gender. Gender violence is coming to the fore as a public issue partly because our country is now less divided by other big fault lines: religion and caste.[16] India has an extremely poor record in enforcing laws and this statute is very likely to suffer from that deficiency because it will be enforced by corrupt, poorly trained police officers. But we should be grateful for the fact that it was adopted at all, which is a small step forward in uplifting a better place to stay in.

Another development that has gradually increased is that women are reporting more rapes nowadays. According to reports, it is justified by some experts that women are willing to speak out and are having more success rate in getting police officers to register their complaints, which they were very reluctant to do. Moreover, the utmost need at this point of time is a change in the mindset of the people. They should understand the fears, compulsions, and pressures on women victims and support them fully, instead of blaming them for having invited such sexual advances. People shouldn't make such kind of speculations rather should observe the whole incident that has actually taken place and wait for the evidences to come out. Overall, the laws on sexual harassment of women has got some kind of achievement over the time but is still to get a lot more in the coming years.

References:
For Books:
  • Harsh Dobhal, Writings on Human Rights, Law and Society in India, A Combat Law Anthology (2002-2010).
For journal articles:
  • Tanima Banerjee, Here's How The Status Of Women Has Changed In India [Since 1950 Till Date], Available at:
    https://www.youthkiawaaz.com/2012/03/heres-how-the-status-of-women-has-changed-in-india-since-1950-till-date/
  • Kavisha Gupta, Supreme Court Case Analysis: Vishaka and Ors v. State of Rajasthan and Ors, Available at: https://www.latestlaws.com/articles/supreme-court-case-analysis-vishaka-and-ors-v-state-of-rajasthan-and-ors-by-kavisha-gupta/
End-Notes:
  1. Vikas Bajaj, ‘In India, Women's Issue Are Finally Out Front', New York Times (March 23,2013)
    https://www.nytimes.com/2013/03/24/opinion/sunday/in-india-womens-issues-are-finally-out-front.html
  2. https://www.refinery29.com/en-us/2018/02/191526/stop-street-harassment-data
  3. Hannah Field, ‘Sexual harassment in the workplace, Part 1 – the Equality Act 2010, what does it cover and how does it work?' Squire Patton Boggs (September 10,2019)
    https://www.employmentlawworldview.com/sexual-harassment-in-the-workplace-part-1-the-equality-act-2010-what-does-it-cover-and-how-does-it-work-uk/
  4. https://www.personneltoday.com/equality-diversity/bullying-harassment/sexual-harassment-bullying-harassment/
  5. Prabhash K Dutta, ‘Sexual Harassment at workplace Explained' India Today (October 15,2018) https://www.indiatoday.in/india/story/sexual-harassment-at-workplace-1368055-2018-10-15
  6. Akshya, ‘Sexual Harassment: Breaking the Wall Of Silence,' Lawctopus (November 8,2014) https://www.lawctopus.com/academike/sexual-harassment-breaking-the-wall-of-silence/
  7. Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
  8. Ibid,.7
  9. Judith Ohikuare, ‘The 3 Places Where Sexual Harassment Is Most Common' (February 23,2018) https://www.refinery29.com/en-us/2018/02/191526/stop-street-harassment-data
  10. Reuters Staff, ‘Statistics of rape in India and some well-known cases' Reuters (December 6,2019)
    https://in.reuters.com/article/us-india-rape-factbox/statistics-on-rape-in-india-and-some-well-known-cases-idUSKBN1YA0UV
  11. Tanima Banerjee, ‘Here's How The Status Of Women Has Changed In India [Since 1950 Till Date]' Youth Ki Awaaz (March 11,2020) https://www.youthkiawaaz.com/2012/03/heres-how-the-status-of-women-has-changed-in-india-since-1950-till-date/
  12. Vikasha and Others V. State of Rajasthan and others. AIR 1997 SC 3011
  13. Geetha K K, ‘Bill on Sexual Harassment: Against Women's Rights' JSTOR (January 21, 2012) https://www.jstor.org/stable/41419731
  14. http://legislative.gov.in/actsofparliamentfromtheyear/sexual-harassment-women-workplace-prevention-prohibition-and-redressal
  15. Section 354A, Indian Penal Code, 1860
  16. Section 509, Indian Penal Code, 1860
  17. Supra,pt 1
    https://www.nytimes.com/2013/03/24/opinion/sunday/in-india-womens-issues-are-finally-out-front.html


    Award Winning Article Is Written By: Mr.Arghyadeep Panda
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    Authentication No: MA106220413433-3-2021

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