Kerala High Court asked (March 17) organisations associated with the film industry to take steps to constitute a joint committee to deal with cases of sexual harassment of women, in line with the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act of 2013. This is a timely intervention as more and more Indian women are now becoming part of work force while the mindset of the society is yet to accept women beyond their sexuality and learn to respect their individuality and rights to dignity and freedom. This was evident when during the #MeToo movement, a number of women in India called out influential men — actors, standup comics, senior journalists — for alleged sexual harassment.
The need for such legislation was observed first time by the Supreme Court, in Vishaka vs State of Rajasthan. In the absence of any law at that time providing measures to check the evil of sexual harassment of working women, the Supreme Court, in exercise of power available under Article 32 of the Constitution, framed guidelines to be followed at all workplaces or institutions, until a legislation is enacted for the purpose.
The Supreme Court incorporated basic principles of human rights enshrined in Constitution of India under Article 14, 15, 19(1)(g) and 21, and provisions of Convention on Elimination of All Forms of Discrimination against Women (CEDAW), which has been ratified in 1993 by the Government of India. The Vishaka guidelines were laid down by the Supreme Court in a judgment in 1997. This was in a case filed by women’s rights groups, one of which was Vishaka. They had filed a public interest litigation over the alleged gangrape of Bhanwari Devi, a social worker from Rajasthan. In 1992, she had prevented the marriage of a one-year-old girl, leading to the alleged gangrape in an act of revenge. The guidelines laid down by the Supreme Court were to be treated as the law declared under Article 141 of the Constitution.
After 16 years of Vishaka, The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 (“the Act”) was enacted with the objective to provide protection against sexual harassment of women at workplace3 and for the prevention and redressal of complaints of sexual harassment and for matter connected therewith or incidental thereto. The Visakha guidelines, which were legally binding, defined sexual harassment and imposed three key obligations on institutions — prohibition, prevention, redress. The Supreme Court directed that they should establish a Complaints Committee, which would look into matters of sexual harassment of women at the workplace.
Definition of sexual harassment
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. Any act of unwelcome and sexual nature shall be considered as sexual harassment. The Delhi High Court clarified in Shanta Kumar vs CSIR held that “undoubtedly, physical contact or advances would constitute sexual harassment provided such physical contact is a part of the sexually determined behaviour. …a physical contact which has no undertone of a sexual nature and is not occasioned by the gender of the complainant may not necessarily amount to sexual harassment.”
The Act also provides the circumstances under which an act may amount to sexual harassment. These are:
(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 Ministry of Women & Child Development has published a Handbook on Sexual Harassment of Women at Workplace with more detailed instances of behaviour that constitutes sexual harassment at the workplace. These include, broadly:
* Sexually suggestive remarks or innuendos; serious or repeated offensive remarks; inappropriate questions or remarks about a person’s sex life
* Display of sexist or offensive pictures, posters, MMS, SMS, WhatsApp, or emails
* Intimidation, threats, blackmail around sexual favours; also, threats, intimidation or retaliation against an employee who speaks up about these
* Unwelcome social invitations with sexual overtones, commonly seen as flirting
* Unwelcome sexual advances.
The Handbook says “unwelcome behaviour” is experienced when the victim feels bad or powerless; it causes anger/sadness or negative self-esteem. It adds unwelcome behaviour is one which is “illegal, demeaning, invading, one-sided and power based”.
Additionally, the Act mentions five circumstances that amount to sexual harassment — implied or explicit promise of preferential treatment in her employment; implied or explicit threat of detrimental treatment; implied or explicit threat about her present or future employment status; interference with her work or creating an offensive or hostile work environment; humiliating treatment likely to affect her health or safety.
Institutional mechanism for complaints and redress
The important feature of the Act is that it envisages the setting up of Internal Complaints Committee at every office of the organisation or institution, having more than 10 employees, to hear and redress complaints pertaining to sexual harassment. Where the number of employees are less than 10, the Act provide for setting up of Local Committee in every district by the District Officer. The committee while inquiring into such complaint shall have the same power as vested in a civil court. The Delhi High Court in its judgment in Ruchika Singh Chhabra vs M/s Air France India and Anr. “…directed that the ICC should be constituted in strict compliance with the requirements under law…”.
The following points are notable about the complaint procedeurs:
- It is not compulsory for the aggrieved victim to file a complaint for the ICC to act. The Act says that she “may” do so — and if she cannot, any member of the ICC “shall” render “all reasonable assistance” to her to complain in writing. If the woman cannot complain because of “physical or mental incapacity or death or otherwise”, her legal heir may do so.
- The complaint must be made “within three months from the date of the incident”. However, the ICC can “extend the time limit” if “it is satisfied that the circumstances were such which prevented the woman from filing a complaint within the said period”.
- The ICC “may”, before inquiry, and “at the request of the aggrieved woman, take steps to settle the matter between her and the respondent through conciliation” — provided that “no monetary settlement shall be made as a basis of conciliation”.
- The ICC may either forward the victim’s complaint to the police, or it can start an inquiry that has to be completed within 90 days. The ICC has powers similar to those of a civil court in respect of summoning and examining any person on oath, and requiring the discovery and production of documents.
- When the inquiry is completed, the ICC must provide a report of its findings to the employer within 10 days. The report is also made available to both parties.
- The identity of the woman, respondent, witness, any information on the inquiry, recommendation and action taken, the Act states, should not be made public.
The extent of sexual harassment at work place in India
According to a survey conducted by the Indian Bar Association in 2017 of 6,047 respondents.70% women said they did not report sexual harassment by superiors because they feared the repercussions. Since the cases regarding sexual harassment at work place remain mostly unreported or rarely or partially reported data regarding it is scant and not continuous. –According to National Crime Records Bureau data, between 2014 and 2015, cases of sexual harassment within office premises more than doubled–from 57 to 119 There has also been a 51% rise in sexual harassment cases at other places related to work–from 469 in 2014 to 714 in 2015.
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, mandates listed companies to annually report the number of sexual harassment cases and the steps taken for redressal. Sexual harassment cases at workplaces in India’s largest companies fell sharply in the last financial year as these organizations shifted to remote and hybrid work models following the Corona virus outbreak. The total number of sexual harassment complaints at workplaces in 44 Nifty companies fell 38.26% in FY21, showed data analysed by anti-sexual harassment advisory complykaro.com from company annual reports. These companies received a total of 455 complaints of sexual harassment in the year ended 31 March, compared with 737 and 739 in FY20 and FY19 respectively.
Need for Change of mindset
Laws have their own limitations. As our women are increasingly becoming the part of workforce and going out, change of mindset of the male counterparts is important to ensure a dignified place for women at work place. A woman can be our mothers, wife, daughter, relative or a friend just like another woman who we do not know, but she belongs to some other family and circle. Whoever a woman is and wherever she comes from, first of all she is an individual in blood and flesh and she has equal right to freedom and dignity. We should shun double standards with regard to women’s dignity, one for “our women” and the other for “their women”. A society includes both of them and it can rise and fall together in this respect. Laws may provide redress to complaints, but isn’t it desirable in the first instance that such complaints about harassment do not arise. It is necessary for all of us to collectively decide to honour women’s right to freedom and dignity. Neither freedom and dignity nor happiness could come in any society in a fractured manner and in segments.
A value system that respects women could be inculcated through education and social awareness. This should be done right from our first school, i.e., parents and family to our formal educational set-ups including schools and universities. There is also need for an attitudinal change in society to establish a value system that holds women folk in high esteem and gives them their righteous and deserved place.
Modern societies should learn to see women beyond their feminine charm and role. Women deserve respected as an individual and for their qualities such as work and leadership skills and contributions. Appreciating women as the most beautiful creature of nature and most worthy social being is important, but at the same time societies need to respect their individuality and womanhood. And above all womanhood should not be exploited at any cost and for whatsoever reason at whatsoever place – inside home or outside, work place or otherwise. This is a matter of social determination as well. This is in the interest of all. Social values and social control can always be far more effective in ensuring women’s rights. This is not about feminism; this is about dignity and freedom of half the population of the world. It does not aim to undermine male and their manhood. It is aimed at making the world more beautiful and livable. We can imagine how beautiful the world around us becomes if we succeed in doing so.