Sexual harassment at workplace is a universal problem in the world whether it be a developed nation or a developing nation or an underdeveloped nation, atrocities and cruelties against women is common everywhere.
Protection of Women From Sexual Harassment At Workplace
Today’s world is accustomed to the term Sexual harassment. Sexual Harassment can
be identified as a behavior. It can in general terms be defined as an unwelcome
behavior of sexual nature. Sexual harassment at workplace is a universal problem
in the world whether it be a developed nation or a developing nation or an
underdeveloped nation, atrocities and cruelties against women is common
everywhere. It is a problem giving negative effect on both men and women. It is
seen to be happening more with women gender as they are considered to be the
most vulnerable section of the society these days. Sexual harassment therefore
is a serious problem in the workplace and it has become one of those issues that
receive a lot of negative attention.
What Is Sexual Harassment?
Sexual harassment has been identified as a term which is difficult to define as
it involves a range of behaviors. Efforts have been made at both national and
international levels to define this term effectively. often, the term is
subjected to different interpretations. Some believe that it is better not to
mingle with female colleagues so that one does not get embroiled in a sexual
harassment complaint. The reality of sexual harassment incidents at the
workplace is that there is more to worry about under-reporting, than people
misusing the law.
In 1997, in the landmark judgment of Vishaka and others v. State of
Rajasthan, the Supreme Court of India defined sexual harassment at the
workplace, pronounced preventive, prohibitory and redress measures, and gave
directives towards a legislative mandate to the guidelines proposed.
Sexual Harassment includes many things:
1. Actual or attempted rape or sexual assault.
2. Unwanted deliberate touching, leaning over, cornering or pinching.
3. Unwanted sexual teasing, jokes, remarks or questions.
4. Whistling at someone.
5. Kissing sounds, howling and smacking lips.
6. Touching an employee’s clothing, hair or body.
7. Touching or rubbing oneself sexually around another person.
Indian Constitution On Sexual Harassment-
Sexual harassment clearly violates the fundamental rights of a women to Equality
under Article 14 and Article 15, her right to life under Article 21,
and her right to practice any profession and carry on any occupation, trade or
business, which includes a Right to safe environment free from sexual
IPC on Sexual Harassment-
In 2013, substantial changes were made in the way sexual harassment was viewed
within the criminal justice system in India. The Criminal Law Amendment Act of
2013, which commenced on April 3, 2013, included Section 354A of the Indian
Penal Code, 1860 that defined sexual harassment. The India Penal Code, 1860 has
also defined the term sexual harassment and related offences and put forth
punishments for the same:
· Section 354A- Sexual harassment is: unwelcome physical contact and
advances, including unwanted and explicit sexual overtures, a demand or request
for sexual favors, showing someone sexual images (pornography) without their
consent, and making unwelcome sexual remarks
Punishment: Up to three years in prison, and a fine.
· Section 354B- Forcing a woman to undress.
Punishment: From three to seven years in prison, and a fine.
· Section 354C- Watching or capturing images of a woman without her
Punishment: First conviction – one to three years in prison and a fine. More
than conviction–three to seven years in prison and a fine.
· 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).
Punishment: First conviction – up to three years in prison and a fine. More
than one conviction–up to five years in prison and a fine.
The same definition is given in the law enacted specifically for Sexual
Harassment of Women at Workplace (Prevention Prohibition and Redressal) Act
Pre- Vishaka Scenario-
Before the Vishaka guidelines came into picture, the women had to take matter of
Sexual Harassment at Workplace through lodging a complaint under Sec 354 and 509
Sexual Harassment as we know has become a global problem which is a kind of
violence against women. International community has recognized in their
International treaties and documents, the protection from Sexual Harassment as a
human rights of women. All the legal instruments dealing with this matter have
been laid down to protect life and liberty and these instruments have been used
as a means to curb and address this issue.
In India until the Vishaka’s judgment was given out, there was no law to govern
this matter and the guidelines which came as an outcome of this case were
derived from the Convention on the Elimination of all forms of Discrimination
Against Women (CEDAW). TheIndian Constitution had grounded provisions in the
form of fundamental rights.
Vishaka And Others V. State of Rajasthan-
In the case of
Vishaka and Ors v. State of Rajasthan and Ors, the Hon’ble Supreme Court
has laid down guidelines and norms to be observed to prevent sexual harassment
of working women.
All employers or persons in charge of work place whether in public or private
sector should take appropriate steps to prevent sexual harassment. Without
chauvinism to the generality of this obligation they should take the following
a. Express prohibition of sexual harassment at the work place should be
notified, published and circulated in appropriate ways.
b. The rules of government and public sector bodies relating to conduct and
discipline should include rules prohibiting sexual harassment and provide for
adequate and appropriate penalties against the offender.
c. As regards private employers, 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 work places and no employee woman should have reasonable
grounds to believe that she is disadvantaged in connection with her employment.
Where such conduct amounts to an offence under the IPC or under any other law,
the employer shall initiate appropriate action in accordance with law by making
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.
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.
Whether or not such conduct constitutes an offence under law or a breach of the
service rules, and 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.
Internal Complaints Committee-
The complaint mechanism should be adequate to provide a complaints committee, a
special counselor or other support service, including the maintenance of
The complaints committee should be headed by a woman and not less than half of
its member 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 complaint 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
Employees should be allowed to raise issues of sexual harassment at a workers’
meeting and in other suitable forum and it should be affirmatively discussed in
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.
Third Party Harassment-
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
The central/state governments are requested to consider adopting suitable
measures including legislation to ensure that the guidelines laid down by this
order are also observed by the employers in private sector.
These guidelines will not prejudice any rights available under the protection of
human rights act, 1993.
Post- Vishaka Scenario-
India did not have any legislation till the Bill for the Protection of Women
from Sexual Harassment was moved in the Parliament in the year 2005. After a 10
long years gap in 2010, the Bill was in the Lok Sabha with slight changes in the
old Bill. The new Bill defined “sexual harassment” and also provided for a
redressal mechanism through “Internal Complaints Committee” in the workplace or
“Local Complaints Committee” at the district level. Women who are employed as
well as those who enter the workplace as clients, customers or apprentices
besides the students and research scholars in colleges and universities and
patients in hospitals are sought to be covered under the proposed legislation.
However, domestic workers working at home are not covered. Additionally, there
were problems regarding the action to be taken against false and malicious
charges or complaints, subsequently to solve this issue the Parliamentary
Standing Committee in June 2011, submitted recommendations to remove false and
malicious charges. Then the newer version of the Bill retained the action
against false and malicious charges by ICC or Local Committee against the
Complaint under Section 14.
According to Section 13 of the Bill there are two stages of enquiry, one is once
the charges are found and proved the report of the same must be sent to the DC
(Disciplinary Committee) and it will take action as per the service rules. This
is again a time consuming process, where the victim has to produce the evidences
again and go through cross examination, which is a kind of mental torture to the
victim. The case may be different with a private sector regarding the second
process of enquiry, these stages or traditions are acting against the
In relation to this, the Apex Court in case of Medha Kotwal has
clearly laid down that the report of the committee is final and the disciplinary
committee is vested with the power to give punishment and to conduct second
Till the new Act of 2013, came into effect; the problem of sexual harassment was
governed by the guidelines laid down by the
Vishaka’s case in the year 1997. The main objective of the Act was to
implement the guidelines and to ensure an access a safe workplace by woman
The Sexual Harassment At Workplace (Prevention, Prohibition And Redressal)
The Sexual Harassment Act (Hereby called as an ‘Act’) was finally enacted in the
year 2013 for the prevention of sexual harassment against women at workplace in
the whole of India. The main objective of the act was protection of Women,
prevention and redressal of sexual harassment complaints. Sexual harassment
includes any one or more of the following unwelcome acts or behavior (whether
directly or by implication) namely:
1. Physical contact and advances; or
2. A demand or request for sexual favors; or
3. Making sexually colored remarks; or
4. Showing pornography; or
5. Any other unwelcome physical, verbal, or non-verbal conduct of sexual
Sexual harassment is a serious problem in the workplace and it has become one
that receives a lot of negative attention. However, India is a late entrant in
formalizing sexual harassment at workplace as a penal offence punishable with
imprisonment and penalty. The harsh reality of sexual harassment cases at
workplace is that there is more to worry about under-reporting than people
misusing the law. With the advent of the present legislation, a paradigm shift
can be noticed in the way employers are made liable for the breach of law by its
employees. Until the enactment of this law, vicarious liability on sexual
harassment at the workplace was non-existent. However, while the Government of
India has been taking steps to monitor implementation of the 2013 Act in
government offices, there is an absence of mechanism to check execution in the
private sector. The damage that is happening as a result of state apathy is
unpardonable and irreparable.
 (1997) 6 SCC 241, AIR 1997 SC 3011
 Article 14- Equality before law
 Article 15- Prohibition of discrimination on grounds of religion, race,
caste, sex or place of birth
 Article 21- Right to life and personal liberty
 Article 19 (1)(g)
 AIR 1997 SC 3011
 Medha Kotwal Lele vs. Union of India and others, (2013) 1 SCC 297
 Section 2(n) of the Sexual Harassment of Women (Prevention Prohibition and Redressal) Act 2013