18 National Legislative Framework – Sexual Harassment of Women

Trishna Mohan Kripalani

By the end of the chapter the reader should be able to:

• Acquire an understanding of the Constitutional provisions relating to sexual harassment of women generally and at the workplace;
• Identify the Vishakha guidelines and how these created responsibilities for states and employers
• Identify the important provisions of the Sexual Harassment of Women in the Workplace (Prohibition, Prevention & Redressal) Act (2013)
• Critically understand and analyse certain contentious questions pertaining to sexual harassment in contemporary India.

Introduction:

The right to life is guaranteed under Article 21 of the Constitution of India. The scope of Article 21 has been expanded over the years, and it unequivocally interprets the ‘Right to Life’ to be a ‘Life with Dignity’. The fundamental right to perform any occupation, trade or profession under the Constitution of India, is dependent on the availability of a ‘safe’ working environment. Further, the right to gender equality encompasses protections against sexual harassment at the workplace which can also violate one’s right to life and liberty and correspondingly, the right to work with dignity. Moreover, the Convention on the Elimination of All Forms of Discrimination (CEDAW), to which India is a state party, recognizes the right to work as an inalienable right of all human beings and requires all state parties to take appropriate measures to eliminate discrimination against women in the field of employment in order to ensure equality of men and women.

Today, a large portion of the workforce is constituted of women. There has been a need to facilitate a safe and enabling working environment for women, and for this purpose, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter the 2013 Act) was passed. The passing of this act was not a simple act of the Legislature and Parliament. The journey has been one of hardship and perseverance. The present status of the protection against sexual harassment which the law provides is primarily by way of constitutional guarantees, criminal law provisions and the 2013 Act. Legal protections may also be found in international human rights law; however, as India is not a state party to the Optional Protocols that establishes the individual complaints mechanisms, these mechanisms are unavailable as a means of redress.

This chapter will give an introduction to the issues pertaining to sexual harassment in India. It will give a historical overview of the developments from the Vishakha guidelines to the 2013 Act. The module will delve into the key provisions of the 2013 Act and proceed to discuss significant developments since this Act has come into force.

Sexual Harassment in India:

A world without consequences causes an escalation of criminal activities and criminal behaviour. Staring, lewd remarks, touching etc. have become part of a woman’s everyday life in India. Women have chosen to ignore and dismiss these incidents as routine so that they may go on with their life. These instances also permeate the work life of women.

India seems to have a long standing tryst with sexual harassment. Though the term sexual harassment at the workplace may be said to have come into popular use in India fairly recently, the issue has existed as long as people have worked together. The issue of sexual harassment at the workplace may affect both men and women, however, in India, the law only pertains to women.

The Indian National Bar Association (INBA) recently undertook a survey of 6,047 male and female participants; the survey reported that 38% of the participants had faced harassment at the workplace and 69% did not complain about it. There are several reasons why sexual harassment goes unreported. Women often fear ridicule, further harassment, a lack of support in ensuring cases are investigated, and in extreme cases, the loss of her job. One such example is a case pertaining to Air India.

In 2012, an employee working at a restaurant at the Indira Gandhi International Airport, New Delhi, filed a case against a senior Air India official, accusing him of sexually harassing her. The employee worked with a firm to which Air India had outsourced work. The woman said the official showed her porn clips, nude pictures, and made physical advances. While the police launched a probe, the woman said her complaint to an assistant general manager (AGM) at Air India was ignored: “I complained to the AGM who said that I should take a 15-day break and would be given a job at a different department. When I went back, the security staff refused to let me in. I was sacked for complaining against a higher official,” the woman had said. This demonstrates a significant social barrier that prevents effective reporting.

Historical Overview:

Constitutional Provisions

Part III of the Constitution of India guarantees certain fundamental rights to all Indian citizens, and some of these rights are guaranteed to every human being regardless of their citizenship. A number of these rights may be relied upon to promote the elimination of sexual harassment at workplace. The most important of these is guaranteed in Articles 14 (equality before the law), 15 (prohibition on the basis of, amongst other things, sex), 16 (right to equality in all matters relating to employment), 19 (rights to freedom) and 21 (the right to life). The objective of the law in these provisions is to remove the formal as well as substantive notions of equality.

Discrimination on the grounds of sex has been the subject matter of several cases before the Supreme Court of India, both with regard to discrimination at the workplace and otherwise. In 1996 the Supreme Court held in C. Masilamani Mudaliar v Idol of Swaminathaswami Thirukoil that every woman is entitled to the elimination of gender obstacles and discrimination. The case further recognized that the state has an obligation to eliminate gender based discrimination and to create conditions and facilities conducive for women to recognize their right to economic development while enjoying social and cultural rights.

Article 19(1)(g) of the Indian Constitution guarantees to everyone the right to ‘practice any profession, or to carry out any occupation, trade or business’. Gender discrimination against women during employment violates a woman’s freedom to carry out her occupation. While several case laws look at gender discrimination as violating a woman’s right to work, the decision of Vishakha v State of Rajasthan was the first to recognize that one of the consequences of incidents of sexual harassment at workplace is a violation of the right to work. The fundamental right to carry on any trade, occupation or profession depends on the existence of a ‘safe’ working environment, something which cannot exist when sexual harassment at work places women at an unfair disadvantage. Further Article 19(1)(a), (c), and (d) which guarantee the freedom of speech and expression, the right to form associations and unions and the freedom to move freely, may also be violated due to sexual harassment at workplaces.

Vishakha v State of Rajasthan – the beginning of the current legislative framework.

In the landmark case of Vishakha & Ors. vs State of Rajasthan & Ors. decided on 13 August 1997 the Supreme Court of India decided to fill the vacuum of specific legislation on how to prevent and respond to sexual harassment at the workplace by passing guidelines. In the absence of legislative measures, the need to find an effective alternative mechanism was found to be of urgent social need. The immediate cause for the filing of a Writ Petition under Article 32 of the Constitution of India, was an incident of brutal gang rape of a social worker in a village of Rajasthan. This petition was brought as a class action by social activists and NGOs with “the aim of focussing attention towards this societal aberration, and assisting in finding suitable methods for realisation of the true concept of ‘gender equality’; and to prevent sexual harassment of working women in all work places through judicial process, to fill the vacuum in existing legislation.”

This petition specifically prayed for the enforcement of fundamental rights of working women under Articles 14, 19 and 21 of the Constitution of India. It was stated that such incidents result in 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.

In view of the above, and in the absence of enacted law to provide for the effective enforcement of the basic human right of gender equality and guarantee against sexual harassment and abuse, particularly at work places, the Supreme Court gave guidelines and norms to be observed at all work places or other institutions, until a legislation was enacted for this purpose. These guidelines came to be known as the Vishakha Guidelines.

The Vishakha Guidelines

The guidelines and norms created as part of the Vishakha judgment drew from the definition of human rights under Section 2(d) of the Protection of Human Rights Act, 1993. It elaborated the duty of the employer or other responsible persons in work places and other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps required.

It defined sexual harassment as:

For this purpose, sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as:

a) physical contact and advances;

b) a demand or request for sexual favours;

c) sexually coloured remarks;

d) showing pornography;

e) any other unwelcome physical verbal or non-verbal conduct of sexual nature.

The preventive steps prescribed included the following:

• Express prohibition of sexual harassment as defined above at the work place should be notified, published and circulated in appropriate ways.
• The Rules/Regulations of Government and Public Sector bodies relating to conduct and discipline should include rules/regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender.
• As regards private employers steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946.
• Appropriate work conditions should be provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at work places and no employee woman should have reasonable grounds to believe that she is disadvantaged in connection with her employment.

In addition to prescribing the possibility of pursuing appropriate criminal remedies and initiating disciplinary actions, a detailed complaint mechanism was set out.

Complaint Mechanism:

Whether or not such conduct constitutes an offence under law or a breach of the service rules, an appropriate complaint mechanism should be created in the employer’s organization for redress of the complaint made by the victim. Such complaint mechanism should ensure time bound treatment of complaints.

Complaints Committee:

The complaint mechanism, referred to above, should be adequate to provide, where necessary, a Complaints Committee, a special counsellor or other support service, including the maintenance of confidentiality.

The Complaints Committee should be headed by a woman, and not less than half of its member should be women.

Further, to prevent the possibility of any undue pressure or influence from senior levels, such Complaints Committee should involve a third party, either NGO or other body who is familiar with the issue of sexual harassment.

The Complaints Committee must make an annual report to the government department concerned with the complaints and action taken by them. The employers and person in charge will also report on the compliance with the aforesaid guidelines including on the reports of the Complaints Committee to the Government department.

Among other guidelines, the court also detailed norms pertaining to spreading awareness of the right of women in the workplace as well as the state providing support to ensure these guidelines are complied with in all workplaces including the private sector.

Although the Supreme Court directed that these guidelines must be strictly observed in all work places, compliance was very low. The Medha Kotwal Lele & Ors. V Union of India case heard by the Supreme Court in 2012 demonstrates this: Goa, Gujarat, Himachal Pradesh, Orissa, Meghalaya, and Arunachal Pradesh were found to have not made amendments to its Civil Services Conduct Rules; and none of the above or Jharkhand, Tamil Nadu, Nagaland, Manipur, Madhya Pradesh, Assam, Bihar, Rajasthan, Karnataka, Haryana, had made any amendments to the Standing Orders. The Court passed the directions upholding the Vishakha judgment and reinforcing the obligation for all states to uphold the guidelines set down therein.

Whilst giving the Vishakha judgment the Supreme Court recognized the urgency of the matter and urged the legislature to pass an appropriate legislation. Despite the recommendation, it was only in 2013, after the Verma Committee gave its report, which was constituted after the infamous December 2012 rape case, and issued the same recommendation, that the Act was passed, thus taking almost 16 years for the act to come into effect.

The 2013 Act, has largely adopted the guidelines that were issued in 1997.

Important Provisions of the 2013 Act

The statement of object and reasons of the Sexual Harassment of Women in the Workplace (Prohibition, Prevention & Redressal) Act 2013, recognises the protection to be accorded to women against sexual harassment, as a human rights issue. This is fortified by India’s commitment to upholding its constitutional provisions and from its obligations drawn from CEDAW. The Act largely adopts the guidelines in the Vishakha case discussed above. Some of the salient features of this Act are:

1. It recognizes the responsibility of the employer to prevent and prohibit sexual harassment in the workplace.
2. It calls for the constitution of Internal Complaints Committees (ICC) within the office/institution or branch, of any organization having at least 10 employees. If there are less than 10 employees, then such complaints can be made to a Local Complaints Committees that is set up at the district level by the Government.
3. There is a penalty prescribed for non-compliance of the provisions of the act which may extend to INR.50,000.

4. The ambit of the 2013 Act is very wide. It applies to the organized and unorganized sector. Some of the well-defined terms used in the Act are:

The definition of sexual harassment as given by this Act is in line with the Supreme Court’s definition in the Vishakha Judgment, discussed above.

Employee: means a person employed at a workplace for any work on regular, temporary, ad hoc or daily wage basis, either directly or through an agent, including a contractor, with or, without the knowledge of the principal employer, whether for remuneration or not, or working on a voluntary basis or otherwise, whether the terms of employment are express or implied and includes a co-worker, a contract worker, probationer, trainee, apprentice or called by any other such name; 

Employer: (i) in relation to any department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit of the appropriate Government or a local authority, the head of that department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit or such other officer as the appropriate Government or the local authority, as the case may be, may by an order specify in this behalf; (ii) in any workplace not covered under sub-clause (i), any person responsible for the management, supervision and control of the workplace. Explanation. —For the purposes of this sub-clause “management” includes the person or board or committee responsible for formulation and administration of polices for such organisation; (iii) in relation to workplace covered under sub-clauses (i) and (ii), the person discharging contractual obligations with respect to his or her employees; (iv) in relation to a dwelling place or house, a person or a household who employs or benefits from the employment of domestic worker, irrespective of the number, time period or type of such worker employed, or the nature of the employment or activities performed by the domestic worker;

Aggrieved woman: (i) in relation to a workplace, a woman, of any age whether employed or not, who alleges to have been subjected to any act of sexual harassment by the respondent; (ii) in relation to dwelling place or house, a woman of any age who is employed in such a dwelling place or house;

Respondent: a person against whom the aggrieved woman has made a complaint under section 9;

Grievance Redressal Mechanism

Developments and Concerns:

Despite the 2013 Act being so recent and having had so long to evolve before being enacted, it has significant shortcomings. The act imposes a time limit upon the filing of a sexual harassment complaint, something that neither Vishakha nor any other case discusses. Whilst the period to report within is 90 days there doesn’t appear to be any reason that justifies this short and arbitrary limitation. Additionally, the Statute provides for the setting up of a conciliation mechanism by the very same body which, if the mechanism fails, is to be responsible for adjudicating the issue. The Civil Procedure Code clearly provides for a conciliation set-up, in general, to be coordinated by a body separate from that of the adjudicating body. The Justice Verma Committee had made strong suggestions against this in their report. Another provision which has also been tagged by the Verma Committee in its report is the provision for punishing those filing false and malicious complaints. There is a significant concern here that women who feel they do not have a strong case and fear being labelled as a malicious complainant will not file complaints or that women who are unable to substantiate their complaints with enough evidence may be wrongly punished.

Another strong criticism of the existing law is that it fails to create or provide for adequate compensation for a woman who has been a victim of sexual harassment. While conditions have been enumerated that must be taken into account while deciding compensation; there is very little that falls upon the offender’s role in compensating the victim. Also, since the act states that compensation must be decided according to the income and financial position of the victim, there have been questions raised as to whether lower paid employees will be compensated lesser for the same act of sexual harassment compared to higher paid employees, indirectly shifting a higher level of vulnerability onto them. In another matter of the punishment itself, critics have pointed out that the Act is very vague about the quantum of punishment, leaving significant room for interpretation and inconsistency. Further, the Act only relates to ‘employment’ relationships, leaving behind a whole set of scenarios in a workplace set-up which should ideally be covered.

The fact that the act is not gender neutral has further broadened the gap between men and women and has completely failed to recognise the existence of sexual harassment against non-heterosexual persons or transgenders as a tool for oppression, intimidation and violence. Though some companies in their internal policies are making room for men to lodge complaints these are sporadic. Making the legislation gender neutral would not only help resolve this issue but would also bring the Act into conformity with emerging global consensus and help to quell claims that women take advantage of this law and men have no remedy.

Since the enactment of the 2013 Act, there has been an increase in reporting of cases. This is often seen as a positive indicator, as it shows the Act’s provisions are being utilised. However, without effective structures to hear the complaints hope for successful resolution of complaints does unfortunately not inspire confidence. According to National Crime Records Bureau data, cases of sexual harassment within office premises has more than doubled from 57 to 119 (2014-15). 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.  Despite the rise of cases and therefor the increase in awareness of the law there have been several high profile cases showcased by the media that demonstrates sexual harassment by powerful men within the workforce remains rife and enforcement of the law remains weak.

Some of the famous cases in the news that demonstrate things have not significantly improved after the passing of the Act are as follows:

The infamous Tarun Tejpal case where he was accused of raping a staff member of Tehelka magazine. Although the case was registered immediately, the accused was let out on bail within a period of six months. The managing director of Tehelka was also criticized for trying to hush up the complaint.

The case of AK Ganguly was a huge blow to the judiciary. He was a Supreme Court Judge, and one of his interns levelled a case of sexual harassment against him. Initially, the intern was scared to come forward and report it. She wrote a blog about the incident of sexual harassment that the Supreme Court judge had subjected her to and this received a sensational response. It was taken up by the then Chief Justice of India who set up a fact-finding panel to ascertain the veracity of the former intern’s allegations. However, no FIR was lodged, and the case was dropped after the Home Ministry said there was no evidence.

Another example is the Doordarshan case. An employee of Doordarshan alleged that her supervisor in Patna had sexually harassed her. She alleged that the supervisor passed obscene comments, made physical advances, and harassed her. She officially lodged a complaint in April 2015, and while her allegations were found to be true after an internal probe, no action was taken against the accused. She was then transferred to another Doordarshan office.

There are several such similar instances with All India Radio, Greenpeace, Wipro, The Energy and Resources Institute (TERI) etc. It would seem that no sector is free from complaints of sexual harassment from the private sector to the non-profit as well as the judiciary, the complaints seem to be many.

Further in terms of legislative changes it was seen that, in addition to the enactment of the 2013 Act, the Criminal Amendment Act 2013 introduced sections 354 A-D to the IPC: 354A being sexual  harassment, 354C voyeurism, 354D stalking, and the Protection of Children from Sexual Offences Act that speaks of sexual harassment of a child.

Even the Supreme Court of India too steps to introduce the Gender Sensitization and Sexual Harassment of Women at the Supreme Court of India (Prevention, Prohibition and Redressal), Regulations, 2013 and the Women and Child Development Ministry launched an online platform to enable women employees of the Central Government to file complaints related to sexual harassment at the workplace.

Conclusion:

A significant benefit of the Act has been that people are talking about sexual harassment at work more and more and women are feeling better empowered to demand workplace protections and accountability for their safety from their employers. Many organisations are undertaking trainings and writing of internal manuals and establishing committees ensuring implementation of the Act’s provisions and making it accessible to their employees. However, the efficiency and effectiveness of these committees is a significant question if their future full and effective implementation remains piecemeal, and stigma and victim-blaming continue to surround sexual harassment. Overcoming these and combatting patriarchal attitudes which undermine effective implementation at all levels must now be the site of future efforts to uphold rights to dignity and equality for women.

Reference

• Helen Pidd, ‘Why is India so bad for women?’, 23 July 2012, Available at: ut://www.theguardian.com/world/2012/jul/23/why-india-bad-for-women (accessed on 27 August 2017)
• USA’s Title VII laws of the Civil Rights Act (1964) Available at: https://www.eeoc.gov/laws/statutes/titlevii.cfm and the UK’s Sex Discrimination Act (1975) Available at: http://www.legislation.gov.uk/ukpga/1975/65lable (accessed on 27 August 2017)
• The Gazette of India, University Grants Commission notification, dated 2 May 2016. Available at http://www.ugc.ac.in/pdfnews/7203627_UGC_regulations-harassment.pdf (accessed on 27 August 2017)
• Report Garima, Sexual Harassment at the Workplace, Indian National Bar Association and Netrika Consulting, 2017. Available at: https://www.indianbarassociation.org/wp-content/uploads/2017/07/Garima-1INBAs-Book.pdf (accessed on 27 August 2017)
• Manu Balchandran and Madhura Karnik, India’s long history with sexual harassment at workplaces, March 15 2017. Available at: https://qz.com/931653/indias-long-history-with-sexual-harassment-at-workplaces/ (accessed on 27 August 2017).
• Veena Gopalakrishnan and Vikram Shroff, Nishith Desail, India’s New Law on Prohibition of Sexual Harassment at the Workplace, The Chambers Journal, March 2014. Available at: http://www.nishithdesai.com/fileadmin/user_upload/pdfs/Research%20Articles/India_s_New_Law_ on_Prohibition_of_sexual_harassment_at_the_work_place.pdf (accessed on 27 August 2017).
• Khushita Vasant, New Workplace Sexual Harassment Law ‘Already Out Of Date’, The Wall Street Journal, April 29, 2013. Available at: http://blogs.wsj.com/indiarealtime/2013/04/29/new-workplace-sexual-harassment-law-already-out-of-date/ (accessed on 27 August 2017).
• Rashi Aditi Ghosh /Zee Research Group, Yawning gaps in yet to be notified Sexual Harassment at Workplace Act’, 30 November 2013. Available at: http://zeenews.india.com/bbv/yawning-gaps-in-yet-to-be-notified-sexual-harassment-at-workplace-act_893373.html (accessed on 27 August 2017).
• Manisha Chachra , 70% women don’t report workplace sexual harassment, employers show poor compliance, March 04, 2017. Available at: http://www.hindustantimes.com/india-news/70-women-don-t-report-workplace-sexual-harassment-employers-show-poor-compliance/story-40pcb35iu328VSLjjjpotL.html (accessed on 27 August 2017).
• Shreeja Sen, Supreme Court grants bail to Tarun Tejpal, July 2 2014. Available at: http://www.livemint.com/Politics/Dy5w1st1NO1n0SSFWfh9IM/Sexual-assault-case-SC-grants-bail-to-Tarun-Tejpal.html (accessed on 27 August 2017).
• Ajanta Chakraborty, No case against Justice Ganguly, July 10, 2014. Available at:
• http://timesofindia.indiatimes.com/city/kolkata/No-case-against-Justice-Ganguly/articleshow/38099424.cms (accessed on 27 August 2017).
• Himanshi Dhawan, Top Doordarshan official accused of sexual harassment, March 15, 2015. Available at: http://timesofindia.indiatimes.com/india/Top-Doordarshan-official-accused-of-sexual-harassment/articleshow/46569917.cms (accessed on 27 August 2017).