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Sexual Harassment at the Workplace

Sexual harassment at the workplace is a situation faced by many people all over the world. At a time when equality has transcended all boundaries of religion, nationality and gender, sexual harassment is still prevalent. It has negative effects on humanity as a whole. Sexual harassment can be defined as unwelcome sexual advances, requests for sexual favours, and other verbal or physical conduct of a sexual nature in relation to conditions of employment[1].

Domestic law in India prior to the case of VIshaka v State of Rajasthan pertaining to sexual harassment at the workplace was only limited to Sections 354 and 509 of the Indian Penal Code. However, with the passage of time and after international conventions and treaties, India passed the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

Vishaka v State of Rajasthan
The judgment in this case[2] was passed by the Supreme Court based on class action filed under Article 32 to deal with sexual harassment at the workplace. The petition was filed after an alleged brutal gangrape of social worker in Rajasthan. The Court noted that sexual harassment at the workplace was a clear violation of the fundamental rights of equality[3], freedom to practice one’s profession[4] and life with dignity[5] guaranteed under the Constitution of India to all the citizens. It also observed the need for judicial process to step in to fill in the legislative vacuum.

It relied largely on the United Nations Convention on the Elimination of all Forms of Discrimination Against Women, which urges state parties to take measures to ensure equal inalienable rights relating to employment[6], provision of safe working environments[7] and sexual harassment in the work place[8]. It laid down a broad definition of sexual harassment, as which includes unwelcome sexually determined behaviour as:
1. Physical contact and advances;
2. A demand or a request for sexual favours;
3. Sexually coloured remarks;
4. Showing pornography;
5. Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

In the absence of legislative measures to deal with this issue, it laid down guidelines that would be binding on all courts of law[9] until the legislative vacuum was filled:
1. It is the duty of the employer to prevent, deter, settle, resolve and prosecute acts of sexual harassment at the workplace;
2. Employers, whether private or public, must take steps to prevent sexual harassment by encouraging awareness, listing appropriate penalties and provide a healthy environment for work;
3. Employers should initiate criminal proceedings by reporting the matter to the concerned authorities, if the conduct amounts to an offence under the Indian Penal Code;
4. Employers should take strict disciplinary action in case of misconduct;
5. Employers should provide for a complaint mechanism for redressal of grievances;
6. A Complaints Committee in the organisation should be set up to provide counsellors or other support services, which should be headed by a woman and must include a third party in it, such as an NGO.

The Legislature is empowered by law to create laws for the safety of women[10]. Further Article 42 puts the burden on the state to provide humane conditions at work and Article 51A, as a fundamental duty, instructs citizens to renounce practices that are derogatory to women. The state may also enact laws in order for giving effect to international agreements[11]. In view of this, the Legislature enacted the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act in 2013. This Act provides for setting up of an Internal Complaints Committee[12] for organisations or Local Complaints Committees[13] in case an Internal Complaints Committee has not been formed in organisations of less than ten workers or the complaint is against the employer itself. A woman who has been subjected to harassment can file a complaint with the respective committee within a period of three months from the date of the incident[14]. The Committee may try conciliation between the victim and the respondent[15], however, if the actions of the respondent constitute an offence, the Committee may file a complaint with the police under Section 509 and other relevant provisions of the Indian Penal Code[16].

The Act also lays down duties of the employer such as[17]:
1. Providing a safe working environment;
2. Creating awareness about such issues and setting up an Internal Complaints Committee;
3. Cooperation with Internal Committee or the Local Committee;
4. Aiding aggrieved women in filing complaints;
5. Treat sexual harassment as a misconduct under the service rules.

Sexual harassment at the workplace is a global phenomenon and affects men as well as women. It is pressing concern in today’s world. The case of Vishaka v State of Rajasthan was the first case that tackled this issue, thereby spawning other cases and finally, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act in 2013. The Act aims to provide redressal mechanisms to aggrieved women, including conciliation and criminal complaints, as the case may be. It puts the burden on employers to create a safe working environment and to aid victims. There are, however, several shortcomings in the Act such as a strict time frame to file complaints, lack of penalty on employers in non-maintenance of a safe environment, bias of the Internal Committee and so on. The law is far from satisfactory in this aspect and needs to be more victim-friendly, rather than complicating the complaint mechanism.

[1] As defined by the US Equal Employment Opportunity Commission
[2] (1997) 6 SCC 241, AIR 1997 SC 3011
[3] Article 14, Constitution of India
[4] Article 19(1)(g), supra
[5] Article 21, supra
[6] Article 1(a), CEDAW
[7] Article 1(f), supra
[8] Article 22, supra
[9] Article 141, Constitution of India: “The law declared by the Supreme Court shall be binding on all courts within the territory of India.”
[10] Article 15(3), Constitution of India
[11] Article 253, Constitution of India
[12] Section 4(1), Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
[13] Section 6(1), supra
[14] Section 9(1), supra
[15] Section 10(1), supra
[16] Section 11(1), supra
[17] Section 19, supra

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