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Workplace sexual harassment in India, was for the very first time recognised by the Supreme Court of India in its landmark judgment of Vishaka v. State of Rajasthan; so it laid down certain guidelines making it mandatory for every employer to provide a mechanism to redress grievances pertaining to workplace sexual harassment which were being followed by employers until the enactment of a legislation. This case is the foundation of the law against sexual harassment of women at the workplace in India.
Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 also called the POSH Act was enacted with the objective of preventing and protecting women against workplace sexual harassment and to ensure effective redressal of complaints of sexual harassment.
In 1992, a lower caste social worker Bhanwari Devi, employed with the rural development programme of the Government of Rajasthan as a Development Project Worker, was brutally gang raped by five men of the upper-class on account of her efforts to stop a child marriage in her village. She went to the police station to lodge a complaint against the offenders but no thorough investigation was launched. To get justice, she took her case to the Trial Court where Court acquitted the accused for the reason of lack of the medical evidence and the reason that they were of a higher social caste and would not be expected to touch or associate with her, who was of a lower social caste.
Thus, women’s rights activists and lawyers filed a PIL against the state of Rajasthan in the Supreme Court of India under the banner of Vishaka. This incident revealed the hazards that working women were exposed to on a day to day basis and highlighted the urgency for safeguards to be implemented in this regard.
Supreme Court held that sexual harassment includes many things: Unwelcome sexually determined behaviour & demands from males employees at workplace, such as:
any physical contacts and advances
sexually colored remarks
passing lewd comments or gestures
sexual demands by any means
any rumors/talk at workplace with sexually colored remarks about a working woman
spreading rumours about a woman’s sexual relationship with anybody
It laid down guidelines and norms to be observed to prevent sexual harassment of working women. These guidelines are applicable to all employers and institutions to prohibit, prevent and redress sexual harassment of women at the workplace.
All employers or persons in charge of work place whether in public or private sector should take appropriate steps to prevent sexual harassment, which are:
Express prohibition of sexual harassment at the work place should be notified, published and circulated in appropriate ways.
The rules of government and public sector bodies relating to conduct and discipline should include rules prohibiting sexual harassment and provide for adequate and appropriate penalties against the offender.
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
No employee woman should have reasonable grounds to believe that she is disadvantaged in connection with her employment.
Employees should be allowed to raise issues of sexual harassment at a workers’ meeting and in other suitable forum and it should be affirmatively discussed in employer-employee meetings.
Awareness of the rights of female employees in this regard should be created in particular by prominently notifying the guidelines (and appropriate legislation when enacted on the subject) in a suitable manner.
Provide a safe working environment to its female employees which includes safety from persons they come into contact with at the workplace.
Where sexual harassment occurs as a result of an act or omission by any third party or outsider, the employer and person in charge will take all steps necessary and reasonable to assist the affected person in terms of support and preventive action.
Organise orientation programmes for members of the ICC and training programmes to sensitise employees.
The central/state governments are requested to consider adopting suitable measures including legislation to ensure that the guidelines laid down by this order are also observed by the employers in the Private Sector. They are:
Disciplinary action: Where such conduct amounts to misconduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules.
Complaint Mechanism: Whether or not such conduct constitutes an offence under law or a breach of the service rules, 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.
Where such conduct amounts to an offence under the IPC or under any other law, the employer shall initiate appropriate action in accordance with law by making a complaint with the appropriate authority.
All complaints regarding sexual harassment of a woman employee would be dealt by this committee only. Appropriate action in this regard shall be initiated by the employers in accordance with the concerned law.
Such committee has to be headed by a woman employee only and half of the members of a committee should be comprised of women only.
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 complaint committee must make an annual report to the government department concerned of the complaints and action taken by them..
The committee would advise and recommend to the victim for the further course of action.
A letter written by Medha Kotwal highlighted a number of individual cases of sexual harassment stating that the Vishaka Guidelines were not being effectively implemented.
Converting the letter into a writ petition, the Supreme Court took cognizance and undertook monitoring of implementation of the Vishaka Guidelines across the country by directing State Governments to file affidavits emphasizing on the steps taken by them to implement the Vishaka Guidelines. The result showed a poor performance by a majority of the states.
Thus, SC issued further orders to national organisations such as the Bar Council of India, to respect and implement the Vishakha Guidelines in spirit.
In its judgment, the Supreme Court observed that “the implementation of the Vishaka Guidelines has to be not only in form but also in substance and spirit so as to make available safe and secure environment for women at workplace in every aspect and thereby enabling working women to work with dignity, decency and due respect.”
Not being satisfied with the implementation of the Vishaka Guidelines, it directed States to put in place sufficient mechanisms to ensure effective implementation of the Vishaka Guidelines. Finally, the Supreme Court asserted that in case of a non-compliance or non-adherence of the Vishaka Guidelines, it would be open to the aggrieved persons to approach the respective High Courts.
A 23-year-old trainee physiotherapist woman was brutally raped repeatedly by five adult men and a juvenile on the night of 16th December 2012 onto a moving bus in Delhi. She got attacked with an iron rod due to which she had her intestines pulled out. Later, she died.
The Bench unanimously passed the judgment of Death penalty to all the accused except juvenile. The juvenile who was equally involved in the incident and raped the woman was convicted and sentenced to three years in a reformation center. This incident led to various legislative reforms in rape laws.
After the incident, a panel was set up under the chairmanship of JS Verma and as per the recommendations, Criminal Law (Amendment) Act, 2013 was passed which provides for the amendment of Indian Penal Code, 1860; Code of Criminal Procedure, 1973, Indian Evidence Act, 1872 and Protection of Children from Sexual Offences Act, 2012 in relation of sexual offences related laws.
Act widened the scope of rape’s definition and provided for capital punishment in rape cases that cause the death of the victim or leave her in a permanent vegetative state. Act also provides for several new offenses to make laws more stringent.
SC gave the following directions:
The state government shall give comprehensive publicity to the notifications and orders issued by it in compliance of the guidelines framed by this court in Vishakha’s case and the directions given in Medha’s case by getting the same published in the newspapers having maximum circulation in the State after every two months.
Wide publicity be given every month on Doordarshan, about various steps taken by the state government for implementation of the guidelines framed in Visakha’s case and the directions given in Medha’s case.
Social welfare and the Legal Service authority of Sikkim shall also give wide publicity to the notifications and orders issued by the state government not only for the government departments of the state and its agencies but also for the private companies.
Independent Thought is an NGO which deals with child rights. It filed a public interest litigation in the Supreme Court of India. It challenged the constitutional validity of exception 2 to section 375 (Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape) of the Indian Penal Code.
Issues raised were, Whether sexual intercourse between a husband and wife, where she is between 15 and 18 years of age would amount to rape and whether section 375, exception 2 is violative of fundamental rights of a girl child?
In the judgment, Supreme Court has criminalized the sexual intercourse with a minor wife whose age lies between 15 and 18 years. The Court opined that the exception 2 in section 375 is violative of Articles 14, 15 and 21 of the Indian Constitution which allows intrusive sexual intercourse with a girl who is below 18 and above 15 years on the ground of marriage.
Such exception clause in Indian rape laws negates the very purpose of Prohibition of Child Marriage Act, it violates the provisions of Protection of Children from Sexual Offences Act (POCSO) in context of the age of consent and some other international conventions to which India is a signatory.
Supreme Court has struck down section 375, exception 2 of the Indian Penal Code. Now, the law cannot protect a man who is engaged in sexual relations with his wife where she is between 15 and 18 years because irrespective of the status of a child whether married or not, she will always remain a child.
In this case, the Supreme Court upheld the dismissal of a superior officer of the Delhi based Apparel Export Promotion Council who was found guilty of sexually harassing a subordinate female employee at the workplace.
Supreme Court enlarged the definition of sexual harassment by ruling that physical contact was not essential for it to amount to an act of sexual harassment.
The Supreme Court explained that “sexual harassment is a form of sex discrimination projected through unwelcome sexual advances, request for sexual favours and other verbal or physical conduct with sexual overtones, whether directly or by implication, particularly when submission to or rejection of such conduct by the female employee was capable of being used for affecting the employment of the female employee and unreasonably interfering with her work performance and had the effect of creating an intimidating or hostile work environment for her.”