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Evolution Of Law On Sexual Harassment Of Women

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

Introduction
Sexual Harassment has become an issue that is prevalent in both developed and developing countries. It's an issue that is now on its way to emerge as a fundamental crisis all over the globe. Studies have shown that one out of every three working women has touched an experience of sexual harassment. The numbers are now becoming way worse, especially in India where a woman is sexually harassed every 12 minutes.

Nowadays women are showing progress in almost every field be it education, politics, economics, media, art or sports, we can see a shift in the role of women from the household to the commercial world. But as this change is obtaining a pace, offenses against women are also increasing. And the worst part is the reporting of such crimes, especially in India is almost Nil cause of the fear of loss of personal and professional reputation.

What is Sexual Harassment?

According to section 354A of the Indian Penal Code, the acts that constitute the offense of sexual harassment are:
  • Physical contacts and advances,
  • A demand or request for sexual favors,
  • Sexually colored remarks,
  • Showing pornography against will or
  • Any other unwelcome physical verbal or nonverbal conduct of sexual nature
Before this, there was no explicit law that could be evoked in the case of sexual harassment. However, there were three sections in the IPC- section 294, section 354 and section 509 which were related laws that could either amount to obscenity in public or acts that violate the modesty of women. While section 294 of the IPC was applicable to both men and women, the rest are specifically for women.

How the Constitution Safeguards Against Sexual Harassment

The Indian Constitution ensures every individual the right to practice any profession, or to carry on any occupation, trade or business. Sexual harassment violates article 19(1)(g) enshrined in the Indian Constitution in which every woman has the constitutional right to participate in public employment. It places women in an unequal position by posing risks and hazards.

It also violates the right to life and personal liberty as mentioned in article 21 which states that no individual should be deprived of life and personal liberty.

Also, the concept of equal status and opportunities, and gender equality as embodied in the Indian Constitution stands ineffective. Sexual Harassment is completely against any women's fundamental rights and their basic human rights.

Law Evolving on Sexual Harassment in India

The Vishakha Judgement
Sexual harassment in the workplace was recognized firstly in the case of Vishaka & Ors. vs State of Rajasthan & Ors. in which Vishaka and other women filed public interest litigation (PIL) after Bhanwari Devi who was a social worker in Rajasthan was brutally gang-raped for stopping child marriage. The petition was filed against the state of Rajasthan and the Union of India to enforce the fundamental rights of working women in article 14, 19 and 21 of the constitution of India.

In this case, the Supreme court of India gave some legally binding guidelines which are as follows:
  • Its the responsibility of the employer to give a sense of security to every working woman
  • The government is supposed to make strict laws to prohibit sexual harassment against women
  • Disciplinary actions and criminal proceedings should be bought against the wrongdoer
  • The organization should set up a complaint mechanism for the redressal of complaints made by the victim
  • The complaint committee should include at least 50% of women so that the victims could communicate their problems comfortably
  • As there is a need for transparency, third party involvement in the form of an NGO is also necessary for the complaint mechanism
  • Making the working women aware of their rights and all the new guidelines issued by the government
  • The topic of sexual harassment should not be treated as a taboo in the worker's meeting rather it should be discussed openly
  • If this offensive act does take place then it is the duty of the employer to take reasonable steps and measures
  • These guidelines are not just limited to the public sectors but to the private ones as well.

The Post-Vishakha Developments

Apparel Export Promotion Council v. A.K. Chopra- In this case, the Supreme Court of India declared Sexual Harassment against women as gender discrimination. Also, any act or attempt of molestation done by the superior will be declared sexual harassment.

Mrs. Rupan Deol Bajaj v. Kanwar Pal Singh Gill:

The definition of modesty and privacy was changed in such a way that any act that results in inconvenience in a woman�s private or public life will be considered an offense.

Medha Kotwal Lele & Ors. v. Union of India & Ors:
This case played a great role in implementing the guidelines which were issued in the Vishaka case by issuing necessary notice to all states and unions to take necessary steps.

Amendments in the Indian Penal Code after Nirbhaya Case
  • Section 354A- Sexual Harassment
  • Section 354B- Forcing a woman to undress
  • Section 354C- Watching or taking pictures 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)

Protection of Women from Sexual Harassment Act, 2013
PoSH Act which came into effect on April 23, 2013, defined an aggrieved woman in relation to a workplace is a woman of any age whether employed or not, alleges to have been subjected to any kind of sexual harassment.

The PoSH Act applies to both organized and unorganized sectors. While Vishaka guidelines have been confined to the traditional office setup, the PoSH act has given a concept of an extended workplace which includes any place that is often visited by the employee in the due course of employment.

Provisions of PoSH Act
  • This act defines sexual harassment and creates a complaint redressal mechanism. It also safeguards against false and malicious complaints.
  • It is the responsibility of the employer to make an Internal Complaint Committee (ICC).
  • These ICCs have the power of the civil courts and they can provide conciliation if requested by the complainant before initiating an inquiry.
  • It also prescribes penalties in the case of non-compliance with the provision of the act.
  • The State Government will notify the District Officer in every district, who will constitute a Local Complaints Committee (LCC) to enable women in the unorganized sector or small establishments to work in an environment free of sexual harassment.

Conclusion
Nowadays more and more women are entering the workforce and are giving their full contribution to our nation's economy and human resources which is further leading to India's growth and development.

As Pt. Jawahar Lal Nehru rightly pointed out that if we want to look at the condition of a nation, we need to look at the status of its women, and for that, we need to give our women an equitable position and opportunities as that of men. The government needs to understand that making laws alone isn't enough if we are not able to implement them properly.

Especially in a society where patriarchy is so deeply rooted with so many other social norms that can't be counted on tips, spreading awareness is the most effective and efficient tool we have, not only for women but for men as well.

Enhancing training courses on sexual harassment and providing documentation on its prevention will also help to combat this problem.

"The liberal idea of tolerance is more and more a kind of intolerance."

References:
  • Sexual Harassment at Workplace by Astha Poonia- Assistant Professor, Jayoti Vidyapeeth Women's University, Jaipur- https://amity.edu/UserFiles/aibs/30672019%20AIJJS_47-57.pdf
  • Sexual Harassment at Workplace by Ashularbaz- http://www.legalservicesindia.com/article/716/Sexual-Harassment-at-Workplace.html
  • POSH Act (Protection of Women from Sexual Harassment Act, 2013)- https://www.clearias.com/posh-act/#:~:text=The%20PoSH%20Act%2C%20as%20mandatary,bound%20and%20extremely%20confidential%20manner
  • Sexual Harassment at Workplace (Wikipedia)- https://en.wikipedia.org/wiki/Sexual_Harassment_of_Women_at_Workplace_(Prevention,_Prohibition_and_Redressal)_Act,_2013

Written By: Kamya Pandey, B.A. LL.B., a 1st-year law student at Dr. Ram Manohar Lohiya National Law University

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