Sexual Harassment at work place

The landmark judgment:

In Vishaka Vs. State of Rajasthan(AIR 1997 SUPREME COURT 3011), Supreme Court of India laid down the guidelines for instituting an anti-sexual harassment policy at the workplace.

1. The definition:
In the above case, Supreme court has defined sexual harassment as following:
“2. Definition :
For this purpose,sexual harassment includes such unwelcome sexually
determined behaviour (Whether directly or by implication) as :
a) Physical contact and advances;
b) a demand or request for sexual favours;
c) sexually coloured remarks;
d) showing pornography;
e) any other unwelcome physical, verbal or non - verbal conduct of sexual
nature.”
2. Preventive Step :

Supreme court did not restrict itself to defining the offence only, but further laid down a guidelines for the employers, to prevent sexual harassment at the workplace.

“All employers or persons in charge of work place whether in the public or private sector should take appropriate steps to prevent sexual harassment. Without prejudice to the generality of this obligation they should take the following steps:

(a) Express prohibition of sexual harassment as defined above at the work place should be notified, published and circulated in appropriate ways.

(b) The Rules/Regulations of Government and Public Sector 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) As regards private employers steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946.

(d) 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 work places and no employee woman should have reasonable grounds to believe that she is disadvantaged in connection with her employment.”

3. Supreme Court further directs the employer :

a. To initiate appropriate action in accordance with law by making a complaint with the appropriate authority, if the conduct amounts to a specific offence under the Indian Penal Code.

b. To ensure that victims, or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment. The victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer.

c. An appropriate complaint mechanism should be created in the employer's organization for redress of the complaint made by the victim. Such complaint mechanism should ensure time bound treatment of complaints. The complaint mechanism, should be adequate to provide, where necessary, Complaints Committee, a special counselor or other support service, including the maintenance of confidentiality.

The Complaints Committee should be headed by a woman and not less than half of its member should be women. Further, to prevent the possibility of any undue pressure or influence from senior levels, such Complaints Committee should involve a third party, either NGO or other body who is familiar with the issue of sexual harassment. The Complaints Committee must make an annual report to the Government department concerned of the complaints and action taken by them.

Status prior to the Vishakha's case

Prior to the landmark judgement in Vishakha's case such offences were directly/indirectly covered by following sections of the Indian Penal Code (IPC)

Section 209: Obscene acts and songs, to the annoyance of others like:
a) does any obscene act in any public place or
b) sings, recites or utters any obscene song, ballad or words in or near any public place.
Punishment: Imprisonment for a term up to 3 months or fine, or both. (Cognizable, bailable and triable offence)
Section 354: Assault or use of criminal force on a woman with intent to outrage her modesty.
Punishment: 2 years imprisonment or fine, or both
Section 376: Rape
Punishment: Imprisonment for life or 10 years and fine
Section 509: Uttering any word or making any gesture intended to insult the modesty of a woman
Punishment: Imprisonment for 1 year, or fine, or both. (Cognizable and bailable offence)

Apart from IPC, The Indecent Representation of Women (Prohibition) Act (1987) also covers the following circumstances:
If an individual harasses another with books, photographs, paintings, films, pamphlets, packages, etc. containing ‘indecent representation of women’; they are liable for a minimum sentence of two years.

Applicability of International conventions

In Vishaka Vs. State of Rajasthan the Supreme Court explicitly said that, the writ petition was filed for the enforcement of the fundamental rights of working women under Arts. 14, 19 and 21 of the Constitution of India in view of the prevailing climate in which the violation of these rights is not uncommon and the present petition was brought as a class action by certain social activists and NGOs with the aim of focusing attention towards this societal aberration, and assisting in finding suitable methods for realisation of the true concept of gender equality and to prevent sexual harassment of working women in all work places through judicial process, to fill the vacuum in existing legislation. Therefore in the above referred judgment the court explicitly mentions that, 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, to promote the object of the constitutional guarantee.In, Apparel Export Promotion Council versus A.K. Chopra,(1999) Supreme Court emphasized, that while discussing constitutional requirements, court and counsel must never forget the core principle embodied in the International Conventions and Instruments and as far as possible give effect to the principles contained in those international instruments. The Courts are under an obligation to give due regard to International Conventions and norms for construing domestic laws more so when there is no inconsistency between them and there is a void in domestic law.

Status of Legislation on Sexual Harassment at work place

The National Commission for Women has drafted a “The sexual harassment of women at work place (prevention, prohibition and redressal) bill, 2006”
This has been arrived at with inputs from women’s movement groups. The bill is yet to be tabled in the Lok Sabha