A broader brush and gender-neutral legislative structure that adequately addresses the harassment of all types and for all genders is the need of the hour. Further, the regulatory structure should be adaptable in catering to the needs of an evolving society with rapidly changing workplace interactionsHarassment remains a pervasive problem at workplaces in our country. Any act of...
A broader brush and gender-neutral legislative structure that adequately addresses the harassment of all types and for all genders is the need of the hour. Further, the regulatory structure should be adaptable in catering to the needs of an evolving society with rapidly changing workplace interactions
Harassment remains a pervasive problem at workplaces in our country. Any act of harassment at a workplace assumes a different tone since the means and manner of addressing such harassment are often determined by hierarchical structures that exist at the workplace. Owing to the lack of a special legal framework that deals specifically and holistically with harassment at a workplace, remedies available under extant criminal laws are often disproportionate and ineffective.
Despite the passing of the Sexual Harassment of Women
at Workplace (Prevention, Prohibition and Redressal)
Act 2013 (Act), India is far from suitably addressing
harassment at a workplace in entirety. In this article,
we attempt to outline a short history of the evolution of
laws relating to harassment at a workplace in India and
the road ahead.
Genesis of Laws Governing Sexual
Harassment at the Workplace: The
Vishaka Judgment
Prior to 1997, there was no specific law or statute to
combat sexual harassment at workplaces in India.
Consequently, there was no specific legal obligation
on an employer to ensure and provide a safe working
environment for women at workplaces. Therefore, any
instance of sexual harassment could be dealt with only
as a criminal offence under the Indian Penal Code (
IPC
),
more particularly, Section 354 of the IPC, which deals
with criminal assault outraging a woman’s modesty,
or Section 509 of the IPC, which penalizes the use of
any word/gesture or act to insult a woman’s modesty.
This was the backdrop when the Supreme Court of India
(
Supreme Court
) heard the case of
Vishaka and Ors.
vs. State of Rajasthan1. The petition was filed by a few
women’s groups including Vishaka, seeking protection
from and remedy against sexual harassment of women
at workplaces on the basis that it amounts to a violation
of every woman’s fundamental rights under Articles 14,
19 and 21 of the Constitution of India. Eventually, in
what is widely regarded as a watershed in the rights
of women at workplaces, the Supreme Court went
on to frame a set of guidelines that employers were
required to adhere to in order to avoid and effectively
address instances of sexual harassment of women at
workplaces.
In the case of
Vishaka
, the Supreme Court ascribed
a broad definition to the term ‘sexual harassment’,
bringing within its ambit any unwelcome sexually
determined behavior, including physical contact and
advances, a demand/request for sexual favors, sexually colored remarks or any other physical, verbal or non-verbal
conduct that is sexual in nature. Any such act, if committed
in a manner so as to cause a woman to perceive it to be
humiliating or detrimental to her well-being, would amount
to the offence of sexual harassment. As a recourse, the
Supreme Court prescribed the establishment of an internal
mechanism within every employer organization that would
facilitate the resolution of matters involving the sexual
harassment of women at workplaces in a more effective
and gender-sensitized manner so as to make it easier for
a woman to pursue a complaint of this nature without the
apprehension of hostile treatment from her colleagues.
However, the findings and observations of the Supreme
Court were not embedded in any legislative structure and
remained mere guidelines with no mandate on employers
to put in place a redressal system as envisaged by the
Supreme Court.
Codification of Vishaka Guidelines:
The Sexual Harassment of Women at
Workplace (Prevention, Prohibition And
Redressal) Act 2013
While the Vishaka judgment is regarded as progressive,
the lack of legislative enforcement of the Supreme
Court’s guidelines rendered the landmark decision
practically ineffective. The much-needed
legislative impetus finally took shape
in 2013 when the Sexual Harassment
of Women at Workplace (Prevention,
Prohibition and Redressal) Bill 2012
(
Bill
) was enacted by the Parliament as
an Act.
A notable contribution of the Act
in addition to the observations
and jurisprudence developed
by the Supreme Court is
the expansive and broad
definition ascribed to the
term ‘workplace’ to ensure
that the benefits of the Act
are available to all women
at every kind of workplace.
Section 2(o) of the Act defines
a workplace in the broadest
of terms and includes even a
dwelling place or a house where
a woman may be employed as
a domestic worker. Further, as
per Section 4, every workplace
employing more than 10 (ten)
employees is required to constitute
an Internal Complaints Committee
(
ICC
) for ascertaining the validity of any
complaint made regarding sexual harassment
by conducting an inquiry into the same. If the
ICC, after deliberation, is of the opinion that
a
prima facie
case exists, it will intimate the
police (mandatorily, within a period of 7 (seven)
days from receiving the complaint) to register a case under
Section 509 of the IPC. For workplaces employing less than
ten people, an aggrieved woman may make a complaint to
the Local Complaints Committee (
LCC
), which operates to
accommodate the needs of those establishments that do not
have a functional ICC. The District Collector will designate
one nodal officer in every block, taluka and tehsil in a
rural (or tribal) area and ward or municipality in the urban
area who will receive complaints to forward them to the
relevant LCC.
The Lacunae in Law
Given the fact that the genesis of the Act and its rationale
stemmed from the
Vishaka
judgment, it is focused solely
on addressing sexual harassment faced by a woman at a
workplace at the hands of a man. The Act does not deal
with the sexual harassment of a man at a workplace or
when the offender is a woman. While the Act is, no doubt,
a commendable first step towards establishing a robust
legal framework to address the safety of women at a
workplace, it is far from being a complete legislation
that effectively deals with harassment at a workplace.
For instance, the Act does not deal with harassment at
a workplace other than sexual harassment or sexual
harassment of a man or a woman by another woman.
Victims of such other forms of harassment continue to
be left to seek recourse solely under India’s core criminal
laws such as the IPC, as opposed to sexual harassment
under the Act having recourse before the ICC [or LCC,
as the case maybe] in addition to the right to proceed
under the IPC. A central flaw of core criminal laws such
as the IPC in dealing with harassment at a workplace
is that they tend to overlook the nitty-gritties and
dynamics between people at a workplace, which are
essential to effectively deal with the problem. By way of an
example, the conciliation process available under Section
10 of the Act is one such provision that gives a victim
of sexual harassment the option of dealing with an
offence more tactfully as compared to criminal prosecution
under the IPC.
The failure of core criminal laws such as the IPC in
dealing with harassment at a workplace is not new. In
the case of
Madan Mohan Singh v. State of Gujarat2, the
court refused to hold an employer responsible for the
abetment of his employee’s suicide, specifically stating
that
‘If prosecutions are allowed to continue on such
basis, it will be difficult for every superior officer even to
work’
. The court took a similar view in the case of
Netai Dutta v. State of West Bengal3
. These are instances that
highlight the ineffectiveness and incompatibility of
criminal law in dealing with harassment at a workplace.
Criminal laws also fail to address the less heinous
forms of harassment at a workplace such as bullying,
which by itself may not constitute an offence under
the IPC.
Need for a More Holistic Legal
Framework
More often than not, instances of harassment are
discarded as being too trivial to constitute offences
under the IPC. There has been an increased integration
of rural populace into an urban workforce, which has
brought about new complexities in the form of cultural
differences, and the nature of interactions that define
interpersonal relationships at workplaces has become
drastically different. These are some of the reasons why it
becomes increasingly important to put in place an
overarching legal framework that would aid in policing
the manner in which individuals treat each other in an
employment space.
At present, the legislative structure prevalent in India is
inadequate to deal with situations wherein the harassment
of an individual amounts to an act of discrimination,
especially when the perpetrator is higher in the hierarchical
structure of an establishment. For instance, the harassment
on the basis of caste or tribe would amount to a criminal
offence punishable under the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act 1989 but
has no censure or remedy specific to a workplace. Similarly,
harassment and discrimination on the basis of a physical
disability has recourse in law only under the Persons with
Disabilities (Equal Opportunities, Protection of Rights and
Full Participation) Act 1995 and no remedy more specifically
suitable to a workplace.
A more broad-brush and gender-neutral legislative
structure that adequately addresses the harassment
of all types and for all genders is the way to go. The
regulatory structure should be adaptable in catering to
the needs of an evolving society with rapidly changing
workplace interactions. Although it may still be
technically possible to address harassment at workplaces
by dealing with it individually under different kinds of laws,
sooner than later, a more holistic redressal mechanism is
necessary.
Footnote:
1. (1997) 6 SCC 241.
2. (2010) 8 SCC 628.
3. (2005) 2 SCC 659.
Disclaimer - The views expressed in this article are the personal views of the author and are purely informative in nature.