Understanding The Sexual Harassment Of Women At Workplace Act, 2013

Introduction

“One of the clearest indicators of the development of a society is the position and status women enjoy in that society. Even women’s rights are recognized as human rights… their standing in our society is deplorable.”

The above lines by our former President K.R. Narayana talk about a latent yet prevalent form a social toxin—which is of utmost importance from a legal perspective—a gender-biased mindset and its effects on the functioning of the society. Talking about socio-legal problems, the most prevalent social toxin in today’s world is the creation of unwanted hindrances in the progress of youth, especially, of women. Our Constitution deals with such barriers and tries to navigate the society towards a gender-neutral state through the following women/female-centric acts:

  • Protection of Women from Domestic Violence Act (2005)
  • National Commission for Women Act (1990)
  • Immoral Traffic (Prevention) Act (1956)
  • Indecent Representation of Women (Prohibition) Act (1986)
  • Sexual Harasment of Women at Workplace (Prevention, Prohibition and Redressal) Act (2013)

This article is an attempt to explore and investigate the “Sexual Harassment at Workplace Act, 2013”, bring out its highlights and analyse its effects on Indian society.

Image via Getty

What Is Sexual Harassment?

Sexual Harassment can be termed as unwanted or unwelcome deliberate advancements of verbal or physical actions towards a person which make them uncomfortable. It includes:

  • Actual or attempted rape or sexual assault.
  • Unwanted pressure for sexual favours.
  • Unwanted deliberate touching, leaning over, cornering, or pinching.
  • Unwanted pressure for dates.
  • Unwanted sexual teasing, jokes, remarks, or questions.
  • Referring to an adult as a girl, hunk, doll, babe, or honey.
  • Turning work discussions to sexual topics.
  • Sexual innuendos or stories.
  • Asking about sexual fantasies, preferences, or history.
  • Personal questions about social or sexual life.
  • Sexual comments about a person’s clothing, anatomy, or looks.
  • Kissing sounds, howling and smacking lips.
  • Telling lies or spreading rumors about a person’s sex life.
  • Neck massage.
  • Touching an employee’s clothing, hair, or body.
  • Giving personal gifts.
  • Hanging around a person.
  • Hugging, kissing, patting, or stroking.
  • Touching or rubbing oneself sexually around another person
  • Standing close or brushing up against a person.
  • Looking a person up and down (elevator eyes).
  • Staring at someone.
  • Sexually suggestive signals.
  • Facial expressions, winking, throwing kisses, or licking lips.
  • Making sexual gestures with hands or through body movements.

The development of jurisprudence in the field of Sexual Harassment at Workplace has given rise to two forms of sexual harassment:

  • Sexual Blackmail (quid pro quo harassment): It can be characterised by hints by a manager or a head to a subordinate to make him or her sexual favours to attain some extra perks and promotions.
  • Hostile Environment Harassment: It is a more subtle and restrained form of sexual harassment. It is unwarranted discrimination and favouritism on the basis of caste, sex or colour.

The Preamble:

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 aims to provide women with protection and redressal against matters related to sexual harassment, their aftereffects along with any other acts or omissions which fall under the umbrella of this act. In order to be an act of sexual harassment, it has to fulfill certain criteria.

It can be noted that the acts of sexual harassment conflict with the idea of equal and uniform distribution of rights to each and every citizen of the country. It can be claimed with the fact that sexual harassment violates a woman’s fundamental rights to equality as specified by Articles 14 and 15 of the Constitution of India, which ultimately leads to the violation of Article 19 of the same. In severe cases, it might also violate her Right to Life and to practice any occupation under Article 21(3) of the Constitution of India.

Introduction Of Sexual Harassment Act In India

The need for such an act had first been majorly observed in the case Vishaka & Ors vs. State Of Rajasthan & Ors” on August 13, 1997. It is a landmark case regarding the protection of women against sexual harassment at workplace. A lower caste social worker named Bhanwari Devi was allegedly gang raped by five upper-caste men, just because she was trying to stop child marriage.

The issue questioned the source of authority (the employer), whether it was to be held accountable for any sexual harassment acts at the workplace.

The highlights of the judgement and its aftereffects are:

  • Protection against sexual harassment and the right to work with dignity is an integral part of gender equality, which is the essence of a globally accepted fundamental human right.
  • It should be the duty and responsibility of the employer to keep a check on chances of such cases happening.
  • All offices and all sectors of employment should have a special committee which deals with matters related to sexual harassment and incidents related to it. Half of the members of that committee should be women. It should deal with the cases of sexual harassment, with suitable action with regard to the law and should advise the victim with her further course of action.
  • The obligation of court to protect the interest of the citizens of the country under Article 32 coincided with that of the Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA (regional association of lawyers, judges, jurists and legal organisations, which advocates for the interests and concerns of the Asia Pacific legal profession ) region. These principles, being welcomed by the Chief Justices of Asia and the Pacific Beijing, pushed the Indian Judiciary to formulate such laws.
  • The Government of India declared its initiation of formulation and to operationalize a national act on women, which would investigate and navigate the dignity and prestige of women and act at every stage of every sector, at the Fourth World Conference on Women in Beijing.

With respect to the same argument, another such case can be cited which pushed the Indian Legislation to institutionalise laws which focused on gender equality: “Nilabati Behera vs. State of Orissa”. In this case, the following notes can be mentioned:

  • In this case, an urgent requirement of a female-centric law was further observed, which ensured women a fair share of their rights, and also, enabling them to practice their rights too.
  • In light of the “human rights” mentioned in section 2(d) of The Protection of Human Rights Act, 1993, all citizens are guaranteed rights relating to life, liberty, equality and dignity by the Constitution.

Laws which built up and contributed as precedents to the formulation of this act are:

  • Section 509 of Indian Penal Code- This law criminalises the act or attempt intended to insult the modesty of women or to portray them inferior.
  • Section 354 of Indian Penal Code- This law criminalises the act or attempt of application of force in order to outrage a woman’s modesty.

Here, it is imperative to mention that the reason of such a late implementation of this act is the deep-seated laid back attitude of the Indian society when it comes to the chance of providing women—the weaker half of the society—with their fair share of rights.

Constitution Of Internal Complaints Committee

Section 4 of the Sexual Harassment of Women at Workplace Act explains the constitution of the Internal Complaints Committee, which is to be established in each and every institution to combat the issue of sexual harassment.

Section 4(2) talks about the members of the committee. An ideal Internal Complaints Committee contains a Presiding Officer, who shall be a woman, employed at a senior level of the organization. If in case a senior woman officer is not there in the organization, Presiding Officer shall be nominated from any other workplace or department of the organization.

It is to be emphasised that at least two women employees should have past experiences in the concerned field and preferably, from a Non-Governmental Organization, provided that at least one-half of the nominated members be women. It would not only make it easy and straightforward for the victim to communicate the issue to the committee but also would make the process swifter and more efficient since women having considerable experience in the field would also contribute to the cause.

Section 4(5) of this act talks about the criteria of removal of the Presiding Officer or a member of the committee. Some of the criteria are:

  • The person is contravening the provision of section 16 (publishing or publicizing the contents of complaint, complainant or inquiry proceedings).

A person, if caught carrying out such practices, may also be held liable under Defamation, and thus, can be convicted for two years in some cases.

  • The person has been convicted or has any criminal case/inquiry/charges pending against him/her.
  • The person has misused or abused his/her position in the office so as to obtain a continuance in the office before working in the matters of public interest.

In such cases, a person might also be held liable under criminal court if the offence committed is of a certain intensity. He/she can also be held liable under breach of fiduciary responsibilities, along with revocation of powers.

Duties Of Employer

Section 19 of the Sexual Harassment of Women at Workplace Act, 2013 explains the duty in view of the legal course of action the employer is supposed to undertake when coming across a case of sexual harassment in his/her institution.

The employer is not only supposed to provide a safe and secure working environment for the employees—which also includes safety from the people interacting in or with the organization at a given time—but also display the legal implications and consequences if such offences are committed in the workplace, and the committee [with respect to section 4 (1) ]. The employer is supposed to treat sexual harassment as a misconduct under the rules of the institution and carry out the appropriate proceedings in favour of the victim, along with provide necessary facilities which help the aggrieved woman in filing a case in the internal or local committee (Section 4, Sexual Harassment of Women at Workplace Act, 2013), and direct her course of action for the same. The employer is also expected to monitor the timely submission of the report on sexual harassment in the internal committee within a stipulated time.

Talking about submission of annual report, the Internal Committee is expected to prepare a yearly report which mentions the cases reported under the same act and forward it to the employer and the District Officer. The District Officer, in turn, is supposed to submit a brief report on the data collected through the annual reports to the state government.

An interesting point to be mentioned here is that the aggrieved woman can also file a complaint under a person who is not employed in the same organization as that of the aggrieved woman, and the duty lies on the employer to initiate the appropriate courses of action in light of the laws applicable in the case.

Determination Of Compensation

Section 15 of the Sexual Harassment of Women at Workplace Act, 2013 elucidates the determination of compensation for the aggrieved. The following aspects should be kept in mind while determining the extent of compensation:

  • The psychiatric injury, mental trauma, pain, suffering and emotional agony caused to the aggrieved due to the incident.
  • The loss of career or employment opportunity, only if it happened due to the incident of sexual harassment in the workplace.
  • Medical expenses sustained by the victim in healing from the traumatic experience that she was subjected to, along with the physical injury (if any) at the workplace.

Social Activism: Awareness On Sexual Harassment At Workplaces

Tarana Burke, the founder of the #MeToo movement. Image via Twitter

The revolutionary “Me too” movement is a globally widespread movement in which women from all over the world are raising voices against the acts of sexual harassment and sexual assaults. #Metoo spread virally in October 2017 is a social media hashtag, which propagated the idea to all parts of the world, provoking women to come forth with their incidents of sexual harassment/assaults and admit it on a global public platform.

The trend was started by Tarana Burke, a social activist and a community organizer, who began using this hashtag in 2006 on a social networking platform called “mypace”. This was a part of the campaign called “Empowerment through Empathy” among women of colour, who had been subjected to sexual harassment, especially in underprivileged communities of the society.

The trend was brought back into the limelight by actress Alyssa Milano on October 15, 2017.

It has created a deep impact on Indian society as well. Not only has it spread awareness among women about their rights, but it has also triggered memories of previously assaulted/harassed victims. Sneha Meshram, a private bank manager, recalls that she has been sexually harassed twice, once as a child, and once at her workplace.

Seema Hirrongany, a clinical psychologist, claims that she encounters four cases of #metoo per week. She also mentions that she has observed a sudden hike in cases related to “sexual harassment traumas”. “People feel anxious, angry, frustrated and seem to have bottled up their emotions from a lot of time” she claims.

A very famous example of Vinta Nanda, who accused Alok Nath of sexual harassment, can be brought to light at this juncture. Writer-producer Vinta Nanda came out with her encounter with a senior actor, Alok Nath who, according to her claims, allegedly raped her 19 years ago. She openly stated that this incident adversely affected her career as well as her personal life, and not to mention, it also scarred her emotionally.

At this juncture, it can be said that the Sexual Harassment of Women at Workplace Act,2013, which is gaining is momentum day by day has been of immense help to the society. Not only has it redefined the concept of law, but has also contributed to the society by ensuring a gender-neutral approach of the codified laws, and is taking the society towards a brighter tomorrow. It is imperative to mention the unleashing of the trend of #metoo since it has also contributed to the cause (due to the reasons discussed above) immensely, by spreading awareness among the women about their rights and pushing them to admit the evils at a public platform. It signals to the fact that law is equal for all, and justice is served to all.

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