By: Sheetal Parkash
India has recently grabbed the wrong kinds of headlines, mostly having to do with the prevention and prosecution of sexual assaults and rapes of Indian and foreign women. But there is another battle being fought which escapes media attention, particularly outside India. That is the fight for protection of women against sexual harassment in the workplace.
Over the years, women in and out of the workplace have been and continue to be objectified by men who take liberties with remarks laced with sexual innuendo and even go to the extent of outright demands for sexual favors. Binding guidelines to protect women from sexual harassment in the workplace have been the law of the land ever since the Supreme Court’s decision in Vishaka vs State of Rajasthan (1997 SCR 3011). Vishaka established that each incident of sexual harassment was a violation of a woman’s constitutional right to equality and dignity in all workplaces and institutions. Lofty sentiments expressed in the Constitution, statutes and case law, however, are often lax in the enforcement. The guidelines were never effectively implemented let alone enforced. Thus, the focus of efforts to prevent and punish acts of sexual harassment shifted to employers, requiring them to enforce mechanisms to protect their women employees from sexual harassment in the workplace. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act of 2013 (Sexual Harassment Act), effective April 22, 2013, imposes upon the employer the responsibility to prevent a hostile work atmosphere for its women employees.
Sexual harassment is a violation of the fundamental rights of a woman to equality as guaranteed under Articles 14 and 15 of the Constitution of India, her right to life and to live with dignity as per Article 21 of the Constitution and right to practice or to carry on any occupation, trade or business under Article 19(1) (g) of the Constitution, including the right to a safe working environment.
The ambit of the act is wide enough to make it applicable in the organized as well as the unorganized sectors. The definition of “workplace” includes all government bodies, private and public sector organizations, non-governmental organizations, organizations carrying on commercial, vocational, educational, entertainment, industrial, financial activities, hospitals and nursing homes, educational institutes, sports institutions and stadiums used for training individuals. “Employees” include daily wage basis laborers and contract laborers, who either directly or through an agent, work with or without the knowledge of the principal employer, whether for remuneration or on a voluntary basis, or whether the terms of employment are express or implied. The term “employee” includes co-workers, probationers, trainees, and apprentices. A woman of any age subjected to any form of sexual harassment whether at the workplace or a dwelling house is covered by the Act. Sexual harassment includes unwelcome physical or verbal contact, showing of pornography, demands for sexual favors as well as sexually colored remarks. Every offence is treated as non-cognizable. (A non-cognizable offence under Indian criminal law requires a court-ordered warrant in order for the police to make an arrest.)
Section 19 of the Act requires the employer to provide a safe working environment by displaying conspicuously at the workplace the criminal consequences of acts constituting sexual harassment. The composition of the Internal Complaints Committee in the workplace, workshops and awareness programs at regular intervals to sensitize employees on such issues, are some of the measures required by the Act. Sexual harassment is misconduct of a serious nature and the offender risks prosecution and punishment. Where an employer fails to comply with the provisions of the Act, it imposes a penalty of up to INR 50,000 (U.S. $830 based on the official exchange rate in June/July 2013, or roughly $2,500 on a purchasing power parity basis).
The Act also requires the employer to timely address grievances of sexual harassment in the workplace and to initiate action against the complainant in case of a malicious complaint. This provision is designed to deter false allegations against co-workers.
Due to the growing awareness of the need for an enforcement mechanism, Section 354A has been added to the Indian Penal Code, 1860, which lists the acts constituting the offence of sexual harassment that are punishable with imprisonment for a term of one-to-three years, or a fine, or both. Thus, the amendment criminalizes all acts of sexual harassment against women and imposes harsh penalties upon the convicted offender.
India’s economic liberalization has continued to bring with it unprecedented social and demographic mobility for men and women. That mobility has laid bare the ostensible conflict between traditional and modern values. Paradoxically, Indian mythology and folklore typically place mothers and sisters on a pedestal, but only if they play their assigned roles as mothers and sisters within a patriarchal system. Moving from deifying women in the traditional sense to simply treating them with respect and dignity in the workplace should not be difficult. Apparently, it is, and women have had no option but to advocate for moves by Parliament to criminalize sexual harassment as the most important component of a campaign to restore civility in the workplace.
It is to be hoped that the threat of prison and fines under the legislation of 2013 will at last reduce, if not eliminate, the scourge of sexual harassment. A typical working woman may finally see herself treated with respect in the workplace, and accepted not as one with goddess-like characteristics or some mythological ideal of “woman,” but just as a woman who is an equal member of society deserving of the same respect, dignity and freedom as any man.
Sheetal Parkash is an advocate with LawQuest, a Mumbai-based law firm. Her practice includes corporate law, civil law, property law, litigation and intellectual property rights. She can be reached at email@example.com.