June 7, 2011

Sexual Harassment in work place in India & its Recourse

This image is taken from Here
Sexual harassment in India is termed and described as: unwelcome sexual gesture or behaviour whether directly or indirectly as sexually coloured remarks; physical contact and advances; showing pornography; a demand or request for sexual favours; any other unwelcome physical, verbal/non-verbal conduct being sexual in nature. In its decision in Vishaka v State of Rajasthan (1997) the apex court determined that sexual harassment is not confined to instances of rape or assault.

Although there is no specific law against sexual harassment at workplace in India but many provisions in Constitution & other legislations protect against sexual harassment at workplace.
                    # According to India's constitution, sexual harassment infringes the fundamental right of a woman to gender equality under Article 14 of the Constitution of India.
               # Infringes Article 21 of the Constitution, as it is against her right to life and live with dignity.
              # Section 354, IPC deals with “assault or criminal force to a woman with the intent to outrage her modesty.
              # Section 509, IPC deals with “word, gesture or act intended to insult the modesty of a woman.
             # Section 294, IPC  deals with (a) does any obscene act in any public place, or (b) sings, recites and utters any obscene songs, ballads or words, in or near any public space.
             # In case of private companies, Industrial Employment (Standing Orders) Act, 1946. 
                 # Indecent Representation of Women (Prohibition) Act (1987)
             # Civil case: A civil suit can be filed for damages under tort laws. That is, the basis for filing the case would be mental anguish, physical harassment, loss of income and employment caused by the sexual harassment.

Accordingly, the principles laid down for constitution of the Sexual Harassment Committee, are, interalia, as follows:
  • It should be headed by a Woman;
  • At least half of its members should be Women;
  • Further, to prevent the possibility of any undue pressure or influence from senior levels, such Sexual Harassment Committee should involve a third party, either an NGO or other body who is familiar with the issue of sexual harassment.
  • Typically, the Committee may consist of 5 members, (ideally an odd number is recommended) to ensure the final decision is not split.

The above said principles, avoids any undue influence or pressure from the employer, I.e. who is involved in the said act. As the committee is to be headed by a women and involvement of third party, such as NGOs or other body who is familiar with the issue of sexual harassment provides an advantage to complainant.

Protection of Women against Sexual Harassment at Workplace Bill, 2010:
Women employees in India can now sue their colleagues for sexual abuse and harassment after the Union Cabinet on Thursday finally approved the introduction of the Protection of Women against Sexual Harassment at Workplace Bill, 2010 in Parliament.

Women employees in India can now sue their colleagues for sexual abuse and harassment after the Union Cabinet on Thursday finally approved the introduction of the Protection of Women against Sexual Harassment at Workplace Bill, 2010 in Parliament.

Since there is a possibility that during the pendency of the enquiry the woman may be subject to threat and aggression, she has been given the option to seek interim relief in the form of transfer either of her own or the respondent or seek leave from work.
There are few case laws, where Honorable Courts has taken the recourse on the employer for their action taken on the complainant in case of sexual harassment:

In N Radhabai vs. D. Ramchandran, (AIR 1995 SC 1476,) When Radhabai, secretary to D. Ramchandran, then social minister for state, protested against his abuse of girls in welfare institutions, he attempted to molest her and dismissed her in 1992. The Supreme Court in 1995 passed the judgement in her favour, with pay and perks from the date of dismissal. 

In Shehnaz Mudbhatkal vs Saudi Arabian Airlines: Shehnaz was subjected to sexual harassment by her boss in 1985, and dismissed when she complained to higher authorities. She won her case in 1996 when the Bombay labour court judged it to have been a case of unfair dismissal under the Industrial Disputes Act. It ordered her re-instatement with full back payment, perks and promotions.
This image is taken from Here

Vishaka Guidelines:
The Vishakha guidelines lays down certain preventive steps that an employer or responsible persons within the organisation should keep in mind in order to prevent women from sexual harassment at workplace. They can be summarized as follows:
(a) Express prohibition of sexual harassment as defined (in this decision) at the workplace 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.
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 workplaces and no woman employee should have reasonable grounds to believe that she is disadvantaged in connection with her employment.”
Complaints mechanism- an appropriate complaints 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.
Complaints Committee- The complaints mechanism should be adequate to provide, where necessary, a complaints committee, a special counsellor or other support service, including the maintenance of confidentiality.
In Apparel Export Promotion Council v. A.K. Chopra, (1999) 1 SCC 759 the Hon'ble Supreme Court held that sexual harassment cases are required to be dealt with great sensitivity. Sympathy in such cases in favour of the delinquent officer is wholly misplaced and mercy has no relevance. Any lenient action in such a case is bound to have a demoralising effect on working women.

The aim of Vishaka case was to ensure a fair, secure and comfortable work environment, and completely eliminate possibilities where the protector could abuse his trust, and turn predator, or the protector-employee would insensitively turn a blind eye.

But, in many cases victims couldn’t prove their point due to lack of evidences; culprits of the act are not punished because of this and enjoy a normal life, even after committing the crime. This refrains a victim to complain, she gradually succumb to the crime. In the opinion of the author, Surveillance cameras should be set up in the office and working places for all should be there should be no rooms for this kind of heinous act.  

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