Sexual harassment is the worst form of sex discrimination done through unwelcome sexually determined behavior. It is a violation of women’s right to life, equality, justice, and liberty. It creates an insecure and hostile work environment for the women in their workplaces.
In India, the development of laws related to sexual harassment is of recent origin. Prior to 1997, there was no special law to deal with the complaints made to the authorities by women with regard to sexual harassment at the workplace. In 1997, the Supreme Court of India, for the first time in the judgment of the case titled “Vishaka v. State of Rajasthan,” held that “sexual harassment at workplace is the gross violation of basic human rights of the people.”
In this case, the Supreme Court laid down a comprehensive set of guidelines to tackle the instances of workplace harassment of women. The guidelines placed responsibility on employers to ensure that women did not face a hostile environment and prohibited intimidation or victimization of those cooperating with an inquiry, including the affected complainant as well as witnesses.
The Court directed for the establishment of redressal mechanism in the form of the Complaints Committee, which will look into the matters of sexual harassment of women at the workplace. The Complaints Committees were mandated to be headed by a woman employee, with not less than half of its members being women, and provided for the involvement of a third party person/NGO expert on the issue, to prevent any undue pressure on the complainant. The guidelines extended to all kinds of employment, from paid to voluntary, across the public and private sectors.
Nearly 15 years after the issuance of Vishaka guidelines, the Parliament passed the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. The Act defines sexual harassment as “unwelcome acts or behavior (whether directly or by implication) namely, physical contact and advances, a demand or request for sexual favors, making sexually colored remarks, showing pornography, any other unwelcome physical, verbal or non-verbal conduct of sexual nature.” The year 2013 also witnessed the promulgation of the Criminal Law (Amendment) Act, 2013 which has criminalized offences such as sexual harassment, stalking, and voyeurism. Although the law preventing sexual harassment at the workplace has been in force since 2013, there remains a lack of clarity on various aspects of that legislation, including what constitutes sexual harassment, obligations of an employer, remedies/safeguards available to the victim, procedure of investigation, etc.
According to a study conducted by Centre for Social Research (2009), “Very few cases of sexual harassment have been reported in India so far, reasons of which varies from a loss of job, damage of image, insecurity or other forms of threats.” Another notable issue is that it has been observed that even if a woman is promoted on the basis of merit, her colleagues do not hesitate to attribute it to sexual favors. This psychological pressure sometimes leads to a woman resigning from her job.
Thus, sexual harassment of a female at the place of work is incompatible with her dignity and needs to be eliminated; simply enacting laws is not at all sufficient. There is a need to handle these issues at the root level i.e. at the workplace.
While taking any decision, employers must ensure that the intent and principles of the Sexual Harassment Act are adhered to and the interest of women remains secured at all times.
The Bombay High Court has recently in the “Vidya Akhave v. Union of India and Ors.” (2015) ruled that “Court would not interfere with an order of punishment passed by the Internal Complaints Committee in relation to a sexual harassment complaint unless the order is shockingly disproportionate.” This judgment reaffirms the importance and powers of the Internal Complaints Committee that is required to be formed under the Sexual Harassment Act.
Given the sensitivities surrounding sexual harassment allegations, it is important that the Internal Complaints Committee is required to be trained to deal with such cases in a fair, proper, and dispassionate manner and based on the principles of natural justice. It is also necessary for the Internal Complaints Committee to ensure that it completes the investigation and issues its order within the time frame set under the law.
According to the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013, “The nature of punishment can be in the form of a written apology, warning, reprimand withholding of promotion, withholding of pay rise or termination from service; monetary compensation can also be paid by the respondent to the complainant, which is deducted from his salary or wages and this provision is irrespective of anything contained in the service rules; The amount of compensation is calculated on the basis of emotional distress faced by the victim, loss in career opportunity, income and financial status of the respondent.” A fundamental critique of this is that the power to decide compensation is vested in the hands of a non-judicial body as it is essentially a judicial function. Also, there is no further guidance provided as to how to arrive at the sum of compensation.
The Act provides that before initiating an enquiry, the Internal Complaints Committee or Local Complaints Committee has an option to settle the matter through conciliation only at the request of the aggrieved woman, although no monetary compensation can be a part of this process. This provision ignores the mandate of the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) and the Constitution of India which hold it unethical to expect to negotiate an outcome between the aggrieved woman and alleged perpetrator and being against fundamental rights respectively.
Although the Act does provide for a redress mechanism within the workplace, it is not short of loopholes, as mentioned above. In India, only a limited number of court cases have accorded compensation to aggrieved women following the failure of employers to comply with Vishaka guidelines. “Manisha Sharma v. Union of India” (2013) was one such case, where there was sexual harassment at the workplace in the Northern Railways. The Court held that the composition of the Inquiry Committee was not as per the Vishaka guidelines, thus the Indian Railways was held vicariously liable and had to pay compensation.
To conclude, here is a dire need to address the loopholes in the present law with a holistic decision-making approach with the participation of Government, stakeholders, NGOs, and the Female activist in that field. At the same time, it is also the duty of employers to ensure a lawfully constituted and approachable Complaints Committee in every institution.
To adding this, more and more public awareness is required with much political will to eradicate such socio-legal issues from society.
(The author is currently working as a lecturer of law in Guwahati. The views expressed in the article are her own.)