Sexual Harassment is a topic of interest and an area of concern to the present era. The sexual harassment results in violation of the basic fundamental rights of women especially right to equality under article 14 & 15 of the Indian constitution and her right to life and to live with dignity under article 21 of the constitution. The origin of the sexual harassment has been taken from Bhanwari Devi case.
Sexual harassment at workplace is an extension of violence in everyday life and is discriminatory and exploitative as it affects women’s right to life and livelihood. It is a violation of fundamental rights of a woman to equality as per Articles 14 and 15 & her right to live with dignity enshrined in Article 21 of the Constitution of India. India became the signatory to the Convention on the Elimination of all forms of Discrimination against Women (CEDAW) on July 9, 1993.In India, for the first time in 1997, a petition was filed in the apex court to enforce fundamental rights of working women, after the brutal gang rape of Bhanwari Devi a social worker from Rajasthan. Apart from the Vishaka guidelines in the case of Vishaka & Ors. v. State of Rajasthan, Sexual Harassment of Women at workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter referred to as POSH Act) has also been enacted.
Sexual harassment of women is a global phenomenon prevalent both in developed as well as in developing countries. Cutting across religion, culture, race, caste, class and geographical boundaries it has spread like virus in the society. It, being offensive to human dignity, human rights and gender equality, has emerged as a fundamental crisis the world over. It is a complex issue involving women, their perceptions and behaviour, and the social norms of the society which emerges from gender discriminatory attitudes and is a complex interplay of gender, power and sexuality. In India, a woman is sexually harassed every 12 minutes. Due to industrialisation, globalisation, development in various fields, role of women is changing rapidly in India. Today, women in India are showing progress in almost all the fields such as education, economics, politics, media, art, space and culture, service sectors, science and technology, etc. As the role of women has shifted from household work to commercial world, offences against women are also increased day by day. Inspite of rising incidences of sexual harassment, their reporting is almost nil as women fear loss of personal & professional reputation and livelihood owing to the social stigma.
The Supreme Court of India defined Sexual Harassment as any unwelcome sexually determined behavior (whether directly or by implication) such as;
1. Physical contact and advances,
2. A demand or request for sexual favors,
3. Sexually colored remarks,
4. Showing pornography,
5. Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
A key part of the definition is the use of the word unwelcome. Such unwelcome or uninvited conduct/act is totally prohibited. Sexual or romantic interaction between consenting people at work may be offensive to observers or may also lead to the violation of the workplace’s policy, but it is not sexual harassment.
Constitutional Safeguards Against Sexual Harassment at Workplace:
The Constitution of India ensures and guarantees every individual the right “to practice any profession, or to carry on any occupation, trade or business” as enshrined under Article 19(1) (g). Every woman has a constitutional right to participate in public employment and this right is denied in the process of sexual harassment, which compels her to keep away from such employment. Sexual harassment of woman at the place of work exposes her to a big risk and hazard which places her at an inequitable position vis-à-vis other employees and this adversely affects her ability to realize her constitutionally guaranteed right under Article 19(1) (g). Sexual harassment of women at workplace is also a violation of the right to life and personal liberty as mentioned in Article 21 that no person shall be deprived of his life or personal liberty. Right to livelihood is an integral facet of the right to life. Sexual harassment is the violation of the right to livelihood. For the meaningful enjoyment of life under Article 21 of the Constitution of India, every woman is entitled to the elimination of obstacles and of discrimination based on gender. Since the ‘Right to Work’ depends on the availability of a safe working environment and the right to life with dignity, the hazards posed by sexual harassment need to be removed for these rights to have a meaning. The preamble of the Constitution of India contemplates that it will secure to all its citizens – “Equality of status and opportunity.” Sexual harassment vitiates this basic motive of the framers of the constitution. The concept of gender equality embodied in our Constitution would be an exercise in ineffectiveness if a woman’s right to privacy is not regarded as her right to protection of life and liberty guaranteed by Article 21 of the Constitution of India. In view of the fact that sexual harassment of women at the workplace violates their sense of dignity and the right to earn a living with dignity, it is absolutely against their fundamental rights and their basic human rights.
Convictions under POSH Act
According to the data provided by the National Crime Records Bureau (NCRB), the number of cases filed under the sexual harassment provisions has been growing. In 2014, when the NCRB first started collecting data on sexual harassment, only 54 cases were filed. In 2016, there were 119 cases, 530 in 2017, 570 in 2018 and 965 in 2019 (Press Information Bureau. Ministry of Women and Child Development, 2019). Conviction rates can enable us to assess the working of the law on sexual harassment. There is very little information on conviction rates. However, numbers don’t tell the complete story.
The law on sexual harassment requires that each company and institution share the number of cases reported to and resolved by the ICC. The same should be published in the Annual Reports of companies and shared with the Board of Directors. However, these checks and balances often falter when the accused are in leadership positions or happen to be ‘star performers’. Often times women working in various institutions, whether in the private or in the public sector, are unaware of the provisions and protections under POSH. This stems from a lack of training or information dissemination by the employers. As a result, when these women encounter sexual harassment at workplaces, they often times do not know how to seek any form of restitution. Even in the cases where women come forward and speak out against the perpetrators of sexual harassment, often procedures for finding redressal under POSH are shrouded by the employers in opacity. This allows the leadership within the institutions, including the perpetrator himself to run rough shod over the women, bullying them to either not to complaint or to withdraw their complaints, or remove complaining employees and continue in their positions unchallenged. Unfortunately, the scenario described here is the norm rather than the exception when it comes to the implementation of POSH. This also explains, to a great degree, the low conviction rates experienced under POSH.
The low conviction rates under the POSH Act are also due to the unique nature of the act. As long as a complaint of sexual harassment is front of the ICC of an institution it is a matter under civil law. It is only when a complaint is filed in a police station that criminal law is invoked. The journey from the occurrence of the harassment to the ICC and onwards to a police station and a court is often fraught. As we saw in the aforementioned section, a lack of awareness, power relations, precarious job positions and a general lack of support from employers, often force women to abandon any attempt at seeking address for sexual harassment in the early stages itself. It is for this reason that it is hard to pin down the precise conviction rates under POSH.
A study conducted in 2017 on sexual harassment at the workplace (Sahgal & Dang, 2017), mapping the experiences of women managers and organisations, found that behavioural harassment was highest, followed by verbal and then physical harassment. Another survey on sexual harassment by the Indian National Bar Association (2017) found that incidences of sexual harassment were not limited to male bosses and female employees, but also common among co-workers and the perpetrators ranged from in-house workers to third parties like suppliers. Women refrained from reporting incidents of sexual harassment perhaps because of embarrassment or simply because of a lack of information about the reporting mechanism.
Conclusion:
To conclude, we highlight the complexities involved in the implementation of the sexual harassment law in India. How can we change the nature of power imbalances in these institutions? Why does the filing of a complaint of sexual harassment lead to systematic denial of employment opportunities and character allegations for the woman? Why are leadership qualities of the perpetrator brought into question, diverting attention from the case? What is the role of the law in providing a safe and fair trial? What are the factors that perpetuate this pattern in cases of sexual harassment? How can the women’s movement widen its net and navigate these complex yet everyday spaces where law, politics, gender and other axis of power intersect, more dexterously? In raising these concerns, we aim to underscore the significance of due process and the rule of law in cases of sexual harassment. These are the fundamental safeguards that can allow a fair trial, building in features of natural justice, so that women can come forward to file complaints without fear of a backlash and retribution.
Aishwarya Says:
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