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Sexual Harassment at the workplace is one of the issues faced by women in the modern world. It not only violates their right to equality, life, and liberty but also discourages their participation in economic activities. A recent case involving a Senior Editor and former Union Minister has put some light on this issue once again.
In this case, a journalist initially made allegations of sexual harassment against the former Union Minister. In turn, a criminal defamation case was filed in Delhi High Court against the journalist by Union Minister. However, Delhi High Court acquitted the journalist of the Criminal Defamation charges in its very recent verdict.
What are the observations made by the Delhi High Court in its recent verdict?
During its verdict, Delhi Court made the following observations:
- Sexual abuse takes away the dignity and self-confidence of women. when a woman files a police complaint against any person who has sexually abused her, in that case her right to dignity gets protected but not the right of the reputation.
- The women have the right to put her grievance even if the incident has occurred a decade before. Vishaka Guidelines and the Sexual Harassment of Women at Workplace Act, 2013 were not available at the time of the harassment.
What is sexual harassment at the workplace?
The Sexual Harassment of Women at Workplace(prevention, prohibition and redressal) Act, 2013 defines sexual harassment as one or more of the following unwelcome acts or behavior. Such as
(i) physical contact and advances; or
(ii) a demand or request for sexual favours; or
(iii) making sexually coloured remarks; or
(iv) showing pornography; or
(v) any other unwelcome physical, verbal or non-verbal conduct of sexual nature;
The workplace includes any government or private sector organisation, establishment, etc. It also covers unorganised and domestic workers, hospitals, any sports institute, stadium or complex, any place visited by the employee during her course of employment, etc.
Condition in India:
- Following is the data provided by the Ministry of Women and Child development
- Between 2015-2017, a total of 1631 cases have been filed under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
- There is a wide disparity among states. Uttar Pradesh recorded for nearly 25% of all cases, followed by Delhi (16%).
- Indian National Bar Association conducted a survey of over 6,000 employees in 2017. The survey found that sexual harassment is widespread in different job sectors. They also found the harassment varies from vulgar comments to an outright demand for sexual favours.
Initiatives aimed at preventing, prohibiting and redressing Sexual harassment at workplace:
- Prior to the Act sexual harassment was addressed under the Indian Penal Code (IPC) provisions dealing with outraging the modesty of a woman, either by force (Section 354) or by word, gesture, or act (Section 509).
- India has signed the CEDAW (Convention on the Elimination of all Forms of Discrimination against Women) 1980. India also ratified the convention later.
- In 1997 as part of the Vishaka judgment, the Supreme Court laid down specific guidelines known as Vishaka guidelines. The guidelines focused on the prevention of sexual harassment of women at the workplace.
- The government enacted The Sexual Harassment of Women at Workplace(prevention, prohibition and redressal) Act, 2013. The major provisions of the Act were,
- The Act defines sexual harassment at the workplace. The Act creates a mechanism for redressal of complaints. It also provides safeguards against false or malicious charges.
- Every workplace is required to constitute an Internal Complaints Committee (ICC). The ICC is mandatory at each office or branch with 10 or more employees.
- These Internal Complaints Committees have the powers of civil courts for gathering evidence.
- It prescribes penalties for employers. Non-compliance with the provisions of the Act shall be punishable with a fine.
- In case of repetition of violations, higher penalties and cancellation of license or registration to conduct business is also present.
- Further, Section 354A was added to the Indian Penal Code through the Criminal Law (Amendment) Act, 2013. It also provides for enough punishment for sexual harassment of women at the workplace.
- Union Ministry for Women and Child Development had set up a committee under Justice JS Verma to curb sexual harassment at workplaces following the #MeToo campaign on social media.
- The Ministry of Women & Child Development (MWCD) has published a Handbook regarding Sexual Harassment at the workplace. The handbook gives detailed instances of behaviour that constitutes sexual harassment at the workplace.
- The MWCD also created an online complaint management system known as SHe-box. Women can use this SHe-box for registering complaints related to sexual harassment at the workplace.
Impacts of Sexual Harassment in the Workplace:
- Emotional Well-Being: Sexual harassment can endanger the victim’s emotional and mental health. It can lead to the loss of self-esteem, and it may even compromise personal relationships. Further, it can cause significant stress and anxiety.
- Physical Health: Weak emotional health often leads to physical health issues, such as loss of appetite, headaches, weight fluctuations, and sleep disturbances.
- Financial Challenges: Sexual harassment frequently leads to financial challenges. Victims may even face broader career repercussions, such as the loss of job references. Women may even decide to leave their employment to avoid a hostile work environment.
- For example, A study led by the ILO found that lewd behaviour and threatening at workplaces were the most well-known reasons due to which women left the workforce in Uttar Pradesh.
- Global Consequences: low productivity, employee turnover, low morale, and legal costs arising from sexual harassment costs in Millions of Dollars. The economy also suffers due to premature retirement and higher insurance costs (paid if women left the job).
Challenges with the Act:
- The Act does not cover women working in the agricultural workers and armed forces. These are largely male-dominated sectors.
- Not Gender Neutral: The law does not take into account sexual harassment faced by men, transgender, and transsexual individuals.
- Non-compliance of Companies: There are many private companies that don’t have a committee (ICC) to look into the complaints of sexual harassment at the workplace.
- Issues with ICC: Most of the committees lack people who have knowledge about legal technicalities involved in conducting the inquiry, cross-examinations, and its importance.
- Victimization: Victimization in sexual harassment often occur especially when a woman lodges a complaint against a superior. The Act is silent on victimisation and has neither any preventive provisions nor any remedies.
For example, A survey revealed that nearly 70% of women did not complain due to fear, embarrassment, lack of confidence in complaint mechanism, etc.
- The government might amend the Act to include some important recommendations of Justice JS Verma committee. The important recommendations were,
- The committee recommended Rape and sexual assault are not merely a crime but also seen as an expression of power. So, any non-consensual penetration of a sexual nature has to be included in the definition of rape.
- It had recommended a tribunal, instead of an ICC. Because dealing with such complaints internally could discourage women from complaining.
- Rather than functioning as Civil court, the tribunal may choose its own procedure to deal with each complaint. The Committee believed that this will result in speedy disposal of complaints
- The committee opposed penalizing women for false complaints. The committee observed punishing women can nullify the very objective of the law.
- Further, the amendment should also include women in armed forces, agriculture to get their grievances redressed. The Act should focus on gender-neutral.
- The government can form a committee to identify the companies not formed the ICC, companies victimizing the women, etc. We can punish these companies either financially or name and shame the company. This will make companies act according to the provisions of the Act.
- The government might create a Gender equity company index like LGBT+ workplace equality index. This will create a healthy gender-sensitive competition among companies to hire more women, providing them with enough respect, etc.
- More than this the attitudinal change is the need of the hour, Government has to raise the awareness about gender-sensitive child-rearing practice. The government can also introduce a gender-equity syllabus at school level. This will provide a long term solution.
The legislation to prevent, protect and redress sexual harassment at the workplace is only a first step. To improve the Gender-equity in society, we need proper enforcement of the legislation, good child-rearing practice and other much-needed steps.