The term sexual harassment
had been first coined in USA. This term as
a legal concept
gained importance in mid 1970s when the US courts held
sexual harassment at workplace as a form of sex discrimination prohibited under
Title VII of the Civil Rights Act,1964. In India, the term sexual harassment was first defined in a formal sense in 1997 by the Supreme Court in Vishaka v.
State of Rajasthan[i].
Words used to define sexual harassment are: sexual molestation in Italy,
sexual blackmail in France and unwanted intimacy in Netherlands. Sexual
harassment may take varied forms. It is limited not only to the demands of
sexual favours made under the threats of adverse job consequences. Sexual
harassment is any sexually oriented behaviour that may endanger the victim's job
performance or undermine the victim's personal dignity. Conduct constituting
sexual harassment encompasses physical as well as psychological consequences.
Two main forms of sexual harassment are identified are:
Sexual blackmail (Quid Pro Quo Harassment)
Hostile environment harassment
Quid pro quo harassment involves the denial of an economic benefit. Such denial
is to punish the victim for rejecting a sexual demand. It may either be a
refusal to hire, denial of promotion, forced resignation, increase in workload
etc. Hostile environment involves a intimidating and offensive working
The US Supreme Court held that a claim of sexual harassment can be of two
harassment that involves conditioning of concrete employment
benefits on sexual favours, and harassment that do not affect economic benefits,
creates a hostile or offensive working environment
[ii] Quid pro quo harassment
has been accepted as a part of law in India since Vishaka judgement and finds
reflection in section 3(2) of the 2013 act. The phrase hostile work environment
is found in Article 2 of Vishaka guidelines.
In Chaychuk v. Best Cleaners & Contractors Ltd.
[iii], the Supreme Court
of British Columbia used the term sexual coercion
to depict quid pro quo
and sexual annoyance
to depict hostile environment as forms of sexual
harassment at workplace.
Sexual harassment at workplace attacks the dignity and self:respect of the
victim both as an employee and as a human being. An ILO publication says:
Those who have experienced sexual harassment, know what a deeply humiliating
and demeaning thing it is: so humiliating in fact, that the victim often avoids
taking action against the harasser, not only for fear of reprisal but also so as
not to have to remember and relive the incident or incidents again and again
However, the negative effects of sexual harassment are not confined to the
individual alone. Research show that the workplaces in which sexual harassment
is allowed to occur tend to have sharply falling productivity. Research
activities, both at national and international level, has shown that sexual
harassment is a serious problem for millions of working women. It is a
widespread phenomenon and pervades a large number of occupations, employments,
jobs, business etc. Rampant discrimination in employment has been practiced
against women for generations. In 1999, J.S. Verma observed for the Indian
Supreme Court that violation of the fundamental rights of working women under
articles 14, 19 and 21 of the constitution of India is not uncommon.[v]
In the landmark case of
Vishaka v. State of Rajasthan
,[vi] the Supreme Court defined sexual
harassment as follows:
Sexual Harassment includes such unwelcome sexually determined behaviour
(whether directly or by implication) as:
a) physical contact and advances;
b) a demand or request of sexual favours;
c) sexually coloured remarks;
d) showing pornography;
e) any other unwelcome, physical, verbal or nonverbal conduct of a sexual
Where any of these acts are committed in circumstances under which the victim of
such conduct has a reasonable apprehension that in relation to the victim's
employment or work (whether she is drawing salary, or honorarium or voluntary
service, whether in government, public or private enterprise), such conduct can
be humiliating and may constitute a health and safety problem, it amounts to
sexual harassment at workplace. It is discriminatory, for instance, when the
woman has reasonable grounds to believe that her objection would disadvantage
her in employment or work (including recruiting or promotion), or when it
created a hostile work environment. Adverse consequence might result if the
victim does not consent to the conduct in question or raise any objection
This definition was formulated in the guidelines laid down by the Supreme Court
in Vishaka judgement
for the prevention and punishment of sexual
harassment at workplace.
This definition has now been crystallised in the sexual harassment of women at
workplace (Prevention, Prohibition and Redressal) Act, 2013.
Section 2(n) states that:
Sexual harassment includes any one or more of the following acts of behaviour
i) physical contact or advances; or
ii) a demand or request for sexual favours; or
iii) making sexually coloured remarks; or
iv) showing pornography ;or
v) any other unwelcome physical, verbal or non:verbal conduct of sexual nature.
Section 3(2) further states that:
The following circumstances, among other circumstances, if it occurs or is
present in relation to or connected with any act or behaviour of sexual
harassment at workplace may amount to sexual harassment:
i) Implied or explicit promise of preferential treatment in her employment or
ii) Implied or explicit threat of detrimental treatment in her employment or
iii) Implied or explicit threat about her present or future employment status or
iv) Interference with her work or creating an intimidating or offensive or
hostile work environment for her or
v) Humiliating treatment likely to affect her health or safety.
The Legal Test For Sexual Harassment
The conduct to be regarded as sexual harassment must be unwelcomed, which means
that the advance, request or conduct was not solicited or invited by the
recipient and the recipient regarded the conduct as offensive and undesirable.
To determine the conduct was welcomed or unwelcomed, the courts look to the
complainant's reaction at the time of the occurrence of the incident and assess
whether the complainant expressly, or by his or her behaviour, demonstrated that
the conduct was unwelcomed. If the evidence show that the conduct of the
complainant was welcomed then the complaint of sexual harassment would fail.
This determination largely turns on question of credibility and present real
problems of evidence for the trier of fact.
[viii] The reason behind it is
that in many cases the distinction between welcome and unwelcome conduct would
be difficult to find, like if a victim is passive and afraid, the perpetrator
may get the wrong message and continue the conduct. In such cases, the victim's
may in fact be a no
2) Sexual in nature:
The second test is that the conduct should be sexual in nature. A broad scope of
conduct may fall under the head of sexual harassment, depending upon the
circumstances. Such conduct may be physical, verbal or non verbal. Most common
forms of sexual harassment identified by ILO are:
# Physical harassment ( kissing, patting, pinching or touching in sexual manner
# Verbal harassment ( sexually suggestive gestures, such as nods, winks);
# Gestural harassment ( sending pornographic pictures through e:mail, putting up
pin:ups or addressing unwanted love letters to an employee);
# Emotional harassment ( behaviour which isolates, is discriminatory toward, or
excludes a person on the grounds of his or her sex).[ix]
Sexual harassment is not confined to unwelcome physical conduct on the part of
the perpetrator . Therefore, physical contact of the perpetrator with the
victim is not an essential element of sexual harassment. This was made clear by
a division bench of the India Supreme Court in Apparel Export Promotion
Council v. A.K. Chopra
[x]. The Court said that the perpetrator acted in a
manner which demonstrated unwelcome sexual advances, both directly and by
, and his actions created an intimidating and hostile working
3) Persistence and/or gravity of the conduct:
To constitute sexual harassment , it is not enough that the conduct merely be
unwelcome sexual conduct. Unwelcome sexual conduct may be insensitive, even
offensive, but it does not necessarily constitute sexual harassment. The word harass implies the instillation of fear or the infliction of damage.
There must first be unwelcome behaviour of sexual nature that has an
unfavourable effect on the workplace or sexual behaviour whose main effect is to
subordinate the maintenance of conditions and benefits to submission to
unwelcome sexual demands, or behaviour that creates an intimidating, hostile or
humiliating working environment.
Development of Law Relating To Sexual Harassment of Women In India
Until the mid: 1990's the concept of sexual harassment was not recognised by
India courts as such. There were, however, some notable exceptions. In Rupan
Deol Bajaj v. Kanwar Pal Singh Gill
[xi], the court recognised sexual
harassment as a crime falling under section 354 of the Indian Penal Code , by
interpreting the phrase outraging the modesty of a woman' to outraging the
dignity of a woman
In Saudi Arabian Airlines v. Shehnaz
[xii], the court recognised that
dismissal of a woman worker following a complaint of sexual harassment was and
unfair labour practice and illegal, and reinstalled the woman who had been
In 1992, Bhanwari Devi, a woman employed as a Saathin in the rural development
programme of the government of Rajasthan, was working within the community to
spread awareness about child marriage. Her brutal gang rape was a blacklash, a
form of punishment for organising the community to oppose child marriage.
Vishaka, a conglomerate of women's organisations active in the campaign to bring
the perpetrators to justice, filed a writ petition in the Supreme Court. The
main prayer sought a transfer of the investigation of that crime to the Central
Bureau of Investigation (CBI), with an additional prayer seeking redressal for
sexual harassment at workplace.
By the time, the matter was heard by the Supreme Court of India, the
investigation had already been transferred to the CBI and the trail was at an
advanced stage. The Court used the opportunity to address the one remaining
issue: the glaring lacunae in the law which left women workers in the country
without any remedy when sexually harassed at work. In response to the increasing
outrage regarding sexual harassment of working women, and the appalling paucity
of legislative responses to such acts, and relying upon the ratification by
India of the UN Convention on Elimination of all forms of discrimination against
women, the Supreme Court of India took a long awaited step and created a binding
and enforceable set of guideline designed to eradicate sexual harassment of
women at the workplace. These came to be known as the Vishaka guidelines.
The expansive scope of Vishaka:
The critical advance made by the Vishaka judgement is the generous
interpretation given to Article 19(1)(g) of the Constitution of India, as sexual
harassment at the workplace has been held to be a violation of the fundamental
freedom of all women, to pursue the business, trade or profession of their won
choice. It is within the framework of constitutional law that the judgement
operates, holding that:
each such incident results in violation of the fundamental rights of
and the : Right to Life and Liberty
. It is a clear
violation of the rights under Articles 14, 15 and 21 of the Constitution. One
of the logical consequences of such an incident is also the violation of the
victim's fundamental right under Article 19(1)(g) to practice any profession or
to carry out any occupation, trade or business.
This declaration of law is not confined to the employment relationship as
traditionally understood between employer and employees, but instead widen its
focus to the workplace and all relationships that occur between those who
inhabit a common workplace and interact with each other. The intension and
purpose of Vishaka judgement has always been to provide as a wide coverage as
possible to the fundamental rights of women , and therefore applied equally to
conventional workplaces as well as other professional and technical bodies, and
a variety of other places where sexual harassment could infringe upon such
fundamental rights of women.
Post Vishaka changes in law:
Although the law developed further in a number of judicial precedents, there was
uncertainty in the public sector on the role of the internal complaints
committees, and the resistance to its application in the private sector. Slowly,
the law relating to sexual harassment at workplace advanced subsequent to
Vishaka case. Women employees and workers began to actively repudiate the
egregious and oppressive conditions of work. Each positive change represented
the courage and perspicacity of women who asserted the rights of Vishaka had
underscored, whether through complaints, petitions, negotiations with
managements and employers, or long drawn out court proceedings.
An interim order in 2004 in Medha Kotwal Lele[xiii] which made detailed
directions and thereby changed the entire dynamic of the Vishaka guidelines and
the internal complaints committee set up under it. The committee was recognised
as an enquiry committee for the purpose of taking disciplinary action against an
employer. The emphasis was on the civil services, with little or no discussion
regarding employees in private sector or in technical institutions.
On 9th October, 2012 the Supreme Court rendered the final judgement in Medha
Kotwal Lele[xiv] where it said that the findings and the report of the
Complaints Committee shall not be treated as a mere preliminary investigation or
inquiry leading to a disciplinary action but shall be treated as a
finding/report in an inquiry into the misconduct of the delinquent.
The service rules had already been amended and brought in conformity with
Vishaka guidelines, and subsequently with the directions of the Supreme Court in
Medha Kotwal Lele, and these amended rules remain in full force and effect.
Post:Vishaka and with the passage of 2013 Act, sexual harassment at workplace is
categorically prohibited across all workplaces, whether in the public or the
private domain, whether rural or urban, whether in the organised or unorganised
sector. An important aspect of the 2013 Act is that it makes significant
advances upon the Vishaka guidelines which place positive obligations upon the
employer to ensure that concrete steps are taken to spread awareness amongst the
employees about not just the existence of the Complaints Committee, but also
about the fact that sexual harassment of women at this workplace is deprecated
in no uncertain terms. It is in the interest of employer to ensure that the
women in his employ are provided the space and freedom to contribute fully and
freely to the enterprise at hand.
The 2013 Act
Despite numerous judicial precedents, there was uncertainty and resistance to
the application of the law, especially in the private sector. These advances
still left a number of women of the workforce outside the protective cover of
the law. This included women working in rural areas, domestic workers, small
enterprises, the unorganised sector and those working in home:based industries.
In global economic context, this reflected an increasing number of women working
outside the traditional workplace, characterised by tenuous contractual
relationships and job insecurity.
The need for a statute became increasingly acute. This came with the enactment
of the 2013 Act. This statute unambiguously applies to the private sector in
employment. While in essence the 2013 Act put the main directives of the Vishaka
on a statutory footing, it does make very significant advances in the
definitional framework, recognising that in today's context many women work in
the informal sector. The prohibition of sexual harassment at the work place is
under the section 3 of the 2013 Act. This prohibition of sexual harassment at
the workplace is applicable to the country as a whole and will be a condition
for employment of all persons employed in the formal or informal sector.
For the first time an enforceable remedy has been created against private sector
employees under the 2013 Act, which places an obligation on every employer of a
workplace¯to constitute a committee to be known as the Internal Complaints
Committee¯ under section 4. Failure to do so is an offence under section 26 of
the act and invites a penalty of up to fifty thousand Indian rupees.
The 2013 act takes into account the insecurity of employment and the vulnerable
nature of employment relationships in the new globalised economic context, and
therefore defines the workplace widely to cover workers in variety of employment
The definition of workplace is wide enough to meet the existing and future
advances in work and economic relationships involving women workers, including
within the purview any place visited by the employed person in the course of the
employment. The Act also attempts to protect vulnerable workers who are
otherwise not covered by labour law and are not unionised. Responding to demands
raised by the women's movement, women domestic workers are also covered under
the 2013 Act.
The 2013 Act, therefore, has the potential to provide a redressal mechanism to
working women across the economic and social divide, including those who were
previously unprotected by the Vishaka guidelines, such as agricultural workers
and women in rural areas.
Constitutional Law And Sexual Harassment At Workplace
The Constitution of India guarantees certain basic and fundamental rights to all
Indian citizens. These fundamental rights include: the right to work and the
right to live with dignity. Certain fundamental rights have also been extended
to all persons, regardless of citizenship. These constitutionally protected
fundamental rights support the elimination of sexual harassment at the
The framers of the constitution realized the backwardness of woman and hence
they provided for certain provisions in the constitution. To fulfil these
constitutional obligations the legislature enacted various special legislations
apart from the various international obligations regarding the labour standards
and the quality of life and quantum of work as well. Thus the Constitution of
India not only grants protection to women but also gives power to the state to
adopt measures of positive discrimination of woman for neutralizing growing
socio:economic, education and political discrimination that is faced by them.
The Preamble of the Constitution of India promises to secure for all its
citizens equality of status and of opportunity. The constitutionally protected
fundamental rights support the elimination of sexual harassment at the
It examines sexual harassment at workplace as the violation of
constitutionally protected fundamental rights and is divided into the following
1) An account of the Vishaka decision and its effect;
2) Subsequent advance in the law;
3) The content of fundamental rights the sexual harassment at the workplace
4) The constitutional remedies available to victims of sexual harassment at the
As women begin to take up their new assigned role and responsibility of
contributing economically to their families, they venture out of their homes to
fill up some of the roles which were hitherto confined only to males. They go
out and work in almost all professions. However, this also brings a new
challenge in their lives as once they go out to work, they become vulnerable and
prone to Sexual Harassment in their workplaces. Any sort of harassment, whether
it is sexual or discriminatory, adversely affects the lives of women and leaves
an indelible mark on their minds and overall health.[xv]
[i] (1997) 6 SCC 241 : AIR 1997 SC 3011.
[ii] Meritor Savings Bank v. Vinsion, 477 US 57(1986), United States Supreme
[iii] Docket: C906406.
[iv] ILO, Action against sexual harassment at work in Asia and the Pacific,
[v] Vishaka v. State of Rajasthan, (1997( 6 SCC 241.
[vi] (1997) 6 SCC 241.
[vii] Vishaka v. State of Rajasthan (1997) 6 SCC 241.
[viii] Canada Human Rights Commission v. Canada Armed Forces,(1993) 3 FC 653.
[ix] Sexual harassment, an ILO Survey of Company Practice by Ariane Reinhart,
published by the International Labour Office, ILO. 1999, P.1.
[x] (1999) 1 SCC 759: AIR 1999 SC 625.
[xi] (1995) 6 SCC 194.
[xii] 1999 (1) Bom LR 687.
[xiii] Unreported Interim order dated 26:4:2004, in Medha Kotwal Lele v. UOI,
[xiv] (2013) 1 SCC 297.
Written by: Roshin Iqbal,
BALL.B(hons) 4th Year, Jamia Millia Islamia.