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LAWS ON SEXUAL HARASSMENTIndian Laws dealing with this Crime
We shall regularly be featuring articles on various
legal aspects of Women's issues. The articles are
intended to create awareness amongst women of
their rights under the law.
Our first series will be dealing with what is no doubt
the most burning issue faced by todays woman-
Sexual Harassment at the Workplace. In todays
changing social and economic environment,
women have become more independent and are
increasingly being exposed to non-traditional tasks.
Sexual harassment at the workplace has become
ubiquitous in every part of the world and Indian
women are no exception to this evil. The
awareness on this issue, as well as the law
pertaining to it,
is very minimal and such ignorance is no longer
bliss. The social reality is that women are
blatantly exploited and discriminated by the
society. Sexual harassment is a topic that has
received little systematic study in our country,
despite the multiple adverse effects both on
women and work.
In contrast, most law schools in the US now offer
courses on Feminist Legal Theory and Thought.
Indian Policy makers would do well to take a cue
from their American counterparts in this regard. A
study by the International Labor Organization in
1992 found that sexual harassment of women is
acquiring menacing dimensions the world over,
compelling many of its victims to quit jobs or suffer
humiliation.
In the absence of specific legislation and
guidelines, the Courts in India were dependent on
two Sections of the Indian Penal Code, namely
Section 354 (outraging the modestly of a woman)
and Section 509 (insulting the modesty of a
woman). These sections however do not safeguard
the interests of working women. In order to remedy
the inadequacies and in particular address the
issue of "Sexual Harassment at the Workplace" the
Supreme Court, in the case of Vishakha v State of
Rajasthan, has earnestly tried to delineate the
concept of sexual harassment in the workplace.The
Court while forming guidelines (which has the force
of law), to ensure the prevention of sexual
harassment of women have defined the concept as
-
Sexual harassment includes such unwelcome
sexually determined behaviour (whether directly
or by implication) as physical contacts and
advances, a demand or request for sexual
favours, sexually coloured remarks, showing
pornography, and any other unwelcome physical,
verbal, or non verbal conduct of sexual nature.
The Court has held that in the absence of domestic
law occupying the field, any international
convention not inconsistent with the fundamental
rights and in harmony with its spirit must be read
into these provisions to enlarge the meaning and
content thereof and to promote the object of the
constitutional guarantee. Each incident of sexual
harassment of women at workplace results in
violation of the fundamental rights of 'Gender
Equality' and 'Right to Life and Liberty'.
Another logical consequence of such an incident is
the violation of the victim's fundamental right
under Article 19(1)(g) 'to practice any profession or
to carry out any occupation or trade or business'.
Such violations attract the remedy under Article 32
for the enforcement of these fundamental rights of
women. The guidelines have laid down certain
norms, which also take into consideration men who
use or threaten to use economic, social or
organisational power in addition to the actual or
threatened use of force to overcome unwilling but
subordinate, and therefore vulnerable women.
The problem of sexual harassment of women is not
only a legal issue, it is also a psychological and
social issue. Even the best legislations will have no
effect unless the mentality and perception people
have of women, undergoes a drastic change.
Law on Sexual Harassment - II
-by Deepali Chandhoke
As mentioned in the previous article, undeterred by the absence of legislation
covering the issue of Sexual Harassment at the Workplace, the Supreme Court has
laid down the necessary guidelines and norms in, Vishaka v. State of Rajasthan,
for the protection of the fundamental rights of women, violated, as a result of
Sexual Harassment at Work.
The Court has emphasised that the guidelines and norms being laid down by it had
to be duly observed at all workplaces or other institutions until a legislation is
enacted for this purpose and that these should be treated as law under Art 141 of
the Constitution.
These guidelines are in accordance with the recommendations and conventions of
various international organisations like the ILO and the European Communities
Commission.
The European Communities Commission has emphasised worldwide that the most
effective method of combating with this menace is to develop and implement a
preventive policy at the enterprise level.
Taking their recommendations into considerations, the Supreme Court has laid
down the following guidelines:
Preventive steps : The employers should take appropriate steps to prevent
sexual
harassment.
These include:
(a) Express prohibition of sexual harassment at the workplace should be notified,
published and circulated in appropriate ways.
(b) The rules/regulations of government and public bodies relating to conduct and
discipline should include rules/regulations prohibiting sexual harassment and
provide for appropriate penalties in such rules against the offender.
(c) 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 workplaces and no woman employee should have reasonable grounds
to believe that she is disadvantaged in connection with her employment.
Criminal Proceedings:
Where such conduct amounts to a specific offence under the Indian Penal Code or
under any other law, the employer shall initiate appropriate action in accordance
with law by making a complaint with the appropriate authority.
In order to ensure that the victims are not discriminated against, while dealing with
complaints of sexual harassment, the victims should have the option to seek transfer
of the perpetrator or their own transfer.
Disciplinary action:
Where such conduct amounts to misconduct in employment as defined by the
relevant service rules, disciplinary action should be initiated by the employer in
accordance with these rules.
Complaint Mechanism:
Whether or not such conduct constitutes an offence under law or a breach of the
service rules, a complaint mechanism should be created in the organisation for
redress of the complaint made by the victim.
Complaints Committee:
A complaint mechanism should provide for a Complaints Committee. The
Complaints Committee should be headed by a woman and not less than half of its
members should be women. Further, to prevent the possibility of any undue
influence from senior levels, the Committee should involve a third party, either NGO
or any other body familiar with the issue of sexual harassment.
Workers initiative:
Employees should be allowed to raise issues of sexual harassment in workers
meetings and other appropriate forums.
Awareness:
Awareness of the rights of female employees in this regard should be created in
particular by prominently notifying the guidelines.
Third party harassment:
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.
The Supreme Court has held in Apparel Export Promotion Council V. A.K.Chopra,
that in any case involving charge of sexual harassment or attempt to sexually
molest, the courts are required to examine the broader probabilities of the case and
not get swayed by insignificant discrepancies or narrow technicalities or the
dictionary meaning of the expression 'molestation'. The Court also held that the
statement of the victim must be appreciated in the background of the entire case.
Notwithstanding the availability of potential remedies under labour or criminal or
tort laws to a victim of sexual harassment, it is now widely accepted that the most
effective way of combating with this menace is to situate the primary remedy
against sexual harassment in the Sex Discrimination Law itself.
About the author :
Deepali Chandhoke is a practising Advocate and she is a Partner at Luthra & Luthra
law firm