Sexual harassment at the workplace: Legal framework and enforcement

ABSTRACT

We all have heard the stories of Sexual Harassment but are never urged to know whether it has some laws on it in our country. The newspapers always have a piece of article which flashes the headline of sexual harassment at the workplace. This article will discuss the legal framework and enforcement of laws on sexual harassment in the workplace. We will dive into the first case law which led to the creation of laws on this burning issue to the numerous cases which occur now. To get acquainted with the amount of contribution it had to ameliorate the safety at the workplace.

Introduction

Sexual Harassment is a serious ailment which has no geographical boundaries. It is a crime which has been neglected by the society for long. Crimes are not partial to genders. Anyone can be the victim of such unwelcomed conduct which breaches your morality. Such corrupted minds make the working environment unsafe, unhealthy and gruesome. This symbolizes the inequality and infringement of one’s mental status. The data and the studies show that almost 35 cases of sexual harassment are reported every month and almost 445 on average. Now imagine the amount of cases which are unreported as not everybody is able to take a stand for themselves and raise their voice against it. This crime needed a legal framework and was finally done in 2012.

THE UNFOLDING – (1992-1997)

The First case of sexual harassment was reported in Rajasthan. A Dalit woman named Bhanwari Devi was employed by the government in the Rural Development Program of the Government of Rajasthan as a social worker. She got the news of a child marriage happening in her area. She took responsibility and tried to convince the families of the children that they should not be conducting this child marriage as it is prohibited in India. The parents did not pay heed to her say and continued with the marriage. Now Bhanwari Devi took legal action and complained about the situation to the police. The marriages were withdrawn but the rage of the family was not settled. She had to face the detrimental causes of sticking up to her duty. Then the day came when she was gang-raped by the family members of the children at her workplace. It was revenge for being an obstacle in the marriage of their children or we can say merely following the duty assigned to her. She filed a complaint in the district court and then it was the session court. The issue was not getting justice served and now she filed the case in High Court. The unfortunate lady did not even get justice even after appealing in the High Court.

The injustice was not at all tolerated by the women of India and this collective outrage led to the formation of a platform where a group of brave women gathered and supported Bhanwari Devi in the journey of accomplishing justice. They formed their community which was named VISHAKHA. It was an umbrella NGO which comprised of several NGOs. They all came together and filed a Public Interest Litigation (PIL) in the apex court that is Supreme Court. Now things took a turn as the guidelines which Bhanwari Devi wanted were made by the Supreme Court.

THE BREAK OF DAWN- 1997

The guidelines for the Vishaka & Ors vs State of Rajasthan & Ors on 13 August, 1997 were finally given. The petition was filed for the enforcement of article 14, article 19, and article 21. These rights were being violated in the workplace. It is a societal aberration which needed the attention of the court in the era of gender equality. The court emphasised that this order would be declared by the court under Article 141 of the constitution.

• The guidelines included-

1. Duty of the Employer or other responsible persons in workplaces and other institutions.
2. Definition:
3. Preventive Steps:
4. Criminal Proceedings:
5. Disciplinary Action:
6. Complaint Mechanism:
7. Complaints Committee:
8. Workers’ Initiative:
9. Awareness:
10. 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 preventive action.
11. The Central/State Governments are requested to consider adopting suitable measures including legislation to ensure that the guidelines laid down bythis order are also observed by the employers in Private Sector.
12. These guidelines will not prejudice any rights available under the Protection of Human Rights Act, 1993.

THE MASK OF LEGALITY- 2013

The government later realised that just forming the guidelines would not stop this issue. They will have to give it a legal provision or make it an act under which punishments are given. After this discussion the POSH (Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act was formed in 2013. The Act is very important as it discusses the various instances of sexual harassment and how a woman can complain against this kind of behaviour.

In this act some important definitions were given and one of them was the definition of aggrieved women. It said that for any woman it does not matter whether the woman belonged to that workplace, she works there or not, but if any kind of harassment happened with her in the workplace, then the case will come under the POSH act.

The action will be considered as harassment was also laid down in the act. It said that

• Any kind of physical contact.
• Demand for sexual favours
• Making sexual colour remarks
• Showing pornography
• Making any unwelcomed physical verbal or non-verbal conduct of sexual nature.

All these will be seen as sexual harassment by this act.

Then the act also clarified that which places which be considered as a workplace by the act and they said that any department organization undertaking established owned controlled or wholly substantially financed by fund provided directly or indirectly by the government or the local authority. The private sector or sports institution hospitals and nursing homes. Any place which is visited by the employers.

The rules for the formation of an Internal Complain Committee –

Every office by written will have a committee named as Internal Complain Committee. It should be at every branch of the workplace. The committee will include a presiding officer who is a women employed at a higher post in the office. There will be at least two members who have experience in the social work and legal knowledge and they will be elected by the employers of the office. Then a member from a non-governmental organization or an association who has experience in the welfare of women and has some legal knowledge about the sexual harassment. The members of the internal complaint committee should not hold office for more than three years from the date of their nomination. The member who is appointed from the non-governmental organization should be paid some kind of allowance by the office for holding the proceedings by the employer. If in case the presiding officer is on fault then he will be dismissed from the committee and the vacancy of the position will be filled by someone fresh nomination.

THE REAL PICTURE –

After the formation of the POSH Act, the number of cases that were filed were lower than before. This can be understood in two ways. One way can be that the POSH Act had a great impact on society or the other one can be that many companies are not aligned with guidelines provided by the act. Still, many cases go unreported due to a lack of awareness or an inefficient complaint mechanism. In the year 2022-2023 a total of 1160 cases of sexual harassment were filed. In the year 2021- 2022, there were about 767 cases. The report also found that the number of cases increased were more than the number of cases resolved. The implementation of the POSH Act surely had an impact on society for awareness but to certain places. The people were aware of their rights and this led to improvement of workplaces to some extent. According to Smita Shetty Kapoor the CEO of the POSH Act, cases of harassment has always existed but now due to the awareness of this POSH act, the number of cases reported has increased over time. The POSH Act played a crucial role in improving gender equality and empowering women to raise their voice against sexual harassment.

CONCLUSION

In the end, we can conclude by saying that the journey which was filled with struggles from 1992 to 2013 definitely gave female workers a safe environment for working, supported them and taught them to be brave as the legal system has its back. Though it still has to climb some heights to make the cases down to negligible and make it safer for women to work. The complaint mechanism still needs to unfurl in rural areas where people are still hesitant to complain. One thing good about this act was the wider lens of women workers which included domestic to private to government servants. However, the inadequate resources and insufficient accountability of people further challenge the effectiveness of these legal mechanisms in creating a zero-tolerance culture for sexual harassment.

REFERENCES

[1] Indian Kanoon ‘Section 4 in The Sexual Harassment of Women at Workplace (Prevention, Prohibition And Redressal) Act, 2013’ https://indiankanoon.org/doc/58999784/

[2] S. Eshwar, Law relating to sexual harassment in India

https://www.primerus.com/article/law-relating-sexual-harassment-india

[3] Manju & Neha, A Review of Legal Frameworks Addressing Workplace Sexual Harassment

https://www.ijnrd.org/papers/IJNRD2403581.pdf

[4] AZB & Partners, India’s workplace sexual harassment law: a decade on

https://www.azbpartners.com/bank/indias-workplace-sexual-harassment-law-a-decade-on/