Overview

“No man is above the law and no man is below it: nor do we ask any man’s permission when we ask him to obey it.” ~ Theodore Roosevelt

In today’s world where everyone is talking about the empowerment of women and making them visible on the Boards of Organizations/Companies and at other higher echelons etc., however, on the flip-side we find that women are not safe even at their work place, where all employees work as a team/family to attain the ultimate goal of the organization, in line with the vision and mission statement. There is not even an iota of doubt that women of the new generation are doing better at jobs, but at the same time harassment caused to them is the greatest threat to the amount of success, women can aspire to achieve. Finally at long last and taking a cue from the famous Vishaka case of 1997, Indian Parliament has legislated Sexual Harassment of Woman at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

Vishaka judgment, which had laid down ‘Code of Conduct for Workplace’, was the result of a Public Interest Litigation (“PIL”) to enforce the fundamental rights of working women under Articles 14, 19 and 21 of the Constitution of India. The said PIL was filed after Bhanwari Devi, a social worker in Rajasthan was brutally gang raped for stopping a child marriage. The Supreme Court decided that the consideration of “International Conventions and norms are significant for the purpose of interpretation of the guarantee of gender equality, right to work with human dignity in Articles 14, 15, 19(1)(g) and 21 of the Constitution and the safeguards against sexual harassment implicit therein.” It is significant to note that before 1997 there was no stringent law in India to deal with the cases of sexual harassment. Women facing sexual harassment had to lodge their complaint under Section 354 or under Section 509 of the Indian Penal Code (“IPC”) and often they faced the negligence and mischief of police officers in filing their complains.

After due hearing, in 1997 Supreme Court finally laid down the guidelines to deal with the sexual harassment at work place which is now popularly known as the Vishakha Guidelines. Supreme Court had held, “These directions (“Vishaka guidelines”) would be binding and enforceable in law until suitable legislation is enacted to occupy the field.”

Though Vishaka Guidelines were a remarkable victory in the history of India but the need for more severe law was indispensable. Demands for a stable and stringent law were raised from various forums constantly but the draft bill had been languishing in the Parliament for a long time.

The crime against women is rising every year and the existing law is found to be insufficient to deal with the issue but the infamous Delhi gang rape on 16th December, 2012 came as another jolt to the safety and security of the women and it further revolutionized the demand for legal reforms, towards their safety and security. As a result “the Sexual Harassment of Woman at Workplace (Prevention, Prohibition and Redressal) Act, 2013” (“the Act”) and “the Criminal Law (Amendment) Act, 2013” has been legislated.

The Sexual Harassment of Woman at Workplace (Prevention, Prohibition and Redressal) Act, 2013- Brief Background

The Sexual Harassment of Woman at Workplace (Prevention, Prohibition and Redressal) Act, 2013 is a significant Act dealing with the sexual harassment widening the definition of workplace and aggrieved woman as laid down in the Vishakha Guidelines. Initially, the Sexual Harassment of Woman at Workplace (Prevention, Prohibition and Redressal) Bill, 2012 had not covered the women working in armed forces and women working in agriculture. Further, in the draft bill, the onus of proof was on the aggrieved woman to prove the harassment and in case of being  guilty of registering a false complaint she (the complainant woman) could be prosecuted, this provision raised a concern that women would be afraid to file a complaint against the wrongdoer.

After considering all the concerns, the Act was finally passed by Lok Sabha on 3rd September, 2012 and by Rajya Sabha on 26th February, 2013. After getting the President’s assent on 22nd April, 2013 it was notified in official gazette of India on 23rd April, 2013 and it came into force from 9th December, 2013.

Salient Features of the Act

Sexual Harassment, defined

The Sexual Harassment of Woman at Workplace (Prevention, Prohibition and Redressal) Act, 2013 defines “sexual harassment” in a broader sense. As per the Act the term “sexual harassment” includes any one or more of the following unwelcome acts or behavior (whether directly or by implication) namely:-

(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 term “sexual harassment” is used in defining violence occurring in the general community, which is defined as:

“Physical, sexual and psychological violence occurring within the general community, including rape, sexual abuse, sexual harassment and intimidation at work, in educational institutions and elsewhere, trafficking in women and forced prostitution.”

The Act has identified sexual harassment as a violation of the Fundamental Rights of a woman to equality under Article 14 and Article 15 of the Constitution of India and her right to life and to live with dignity under Article 21 of the Constitution as well as the right to practice any profession or to carry on any occupation, trade or business which includes a right to a safe environment free from sexual harassment.

The Act also states that the protection against sexual harassment and the right to work with dignity are universally recognized human rights by International Conventions and instruments such as Convention on the Elimination of all Forms of Discrimination against Women, which had been ratified on the 25th  June, 1993 by the Government of India.

Amendment in Criminal Law Act

The Criminal Law (Amendment) Act, 2013 brings significant changes in the IPC, making sexual harassment an expressed offence under Section 354A of IPC, committing which is punishable with imprisonment of up to three years and or with fine. The Amendment also introduced new sections making acts like disrobing a woman without consent, stalking and sexual acts by person in authority an offence.

Though enhancement in legal and moral environment is still needed to deal with the cases of sexual harassment but a significant foundation in this direction has been laid by the above two legislative acts.

Conclusion

Each individual has the right to work in an environment free from demeaning and humiliating sexual harassment. So, women should also be given all the rights they are entitled to. But even today, a significant number of women are still facing several obstacles in the way to improving their life and career, due to the gender discrimination of the culture that is being followed nowadays. The Government of India should give a serious thought to the fact mere passage of strict legislations would not solve the problem and effective implementation of the same should also be there. The Act provides for mandatory “Sexual Harassment Policy” and constitution of “Internal Complaint Committee” to look after the offences of harassment at work place for every eligible organization where women are working, many organizations do not have the same and this needs to be altered at the earliest. The Government must create appropriate mechanisms to track the implementation of this legislation at every organization to achieve the objectives of these legislative reforms.