Hon’ble The Chief Justice
K. Vinod Chandran
Hon'ble Mr. Justice
Partha Sarthy
Hon'ble The Chairman
     Sexual harassment of women at the workplace is a behavior that is inappropriate and sexist in nature. Majority of working women across the world have been victims of sexual harassment at some point or the other. The Universal Declaration of Human Rights 1948 considers sexual harassment as a violation of basic human rights and fundamental freedoms and requires state parties to address the same by adopting proper mechanisms. The law against sexual harassment at workplace in India was enacted in the year 2013. However as early as 1997, the Supreme Court formulated guidelines making it mandatory for organizations, whether working in the private or public sector to establish a mechanism to redress complaints of sexual harassment. The Honourable Supreme Court opined that such an incident results in the violation of the fundamental right to ‘Gender Equality’ and the ’Right to Life and Liberty’. Sexual harassment constitutes a clear violation of the rights enshrined under Articles 14, 15 and 21 of the Constitution.The court defined what constitutes sexual harassment. 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.

      The court issued a writ of mandamus and formulated guidelines to be followed at all workplace to prevent prohibit and contain incidents of sexual harassment. These guidelines are popularly known as the “Vishakha Guidelines”
The court laid down that:
1)It shall be the duty of the employer or other responsible persons in workplaces or other institutions to prevent sexual harassment and to provide for the resolution and settlement mechanism.

“Vishakha Guidelines”(Bhanwari Devi(Vishaka & Ors. V/S State of Rajasthan, AIR 1997 Sc 3011) Case)

2)Preventive Steps: All employers 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 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.
(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 workplaces.
3)Criminal Proceedings: Where such conduct amounts to a specific offence under the Indian Penal Code or under any other law the employer shall initiate appropriate action as per the law. The employer should file or assist the aggrieved in filing the complaint with the appropriate authority. In particular, it should 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 the transfer of the perpetrator or their own transfer.
4)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.
5)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

     6)Complaints Committee: The complaint mechanism, referred to above, should be adequate to provide, where necessary, a Complaints Committee, a special counselor or other support services, including the maintenance of confidentiality. The Complaints Committee should be headed by a woman and not less than half of its members should be women. Further, to prevent the possibility of any under pressure or influence from senior levels, such Complaints Committee should involve a third party, either NGO or other bodies who are familiar with the issue of sexual harassment. The Complaints Committee must make an annual report to the government department concerned with the complaints and actions taken by them. The employers and person in charge will also report on the compliance with the aforesaid guidelines including on the reports of the Complaints Committee to the Government department.
7)Workers’ Initiative: Employees should be allowed to raise issues of sexual harassment at workers’ meetings and in other appropriate forum and it should be affirmatively discussed in Employer-Employee Meetings.
8)Awareness: Awareness of the rights of female employees in this regard should be created in particular by prominently suitably notifying the guidelines.
9)Where sexual harassment occurs as a result of an act or omission by any third party or an 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.
      10)The Central/State governments are requested to consider adopting suitable measures including legislation to ensure that the guidelines laid down by the order are also observed by the employers in Private Sector.
The Supreme Court impressed that the myriad acts of sexual harassment should be no more seen as undamaging or trivial acts of ‘natural’ male behaviour or ‘harmless coquetry’. The guidelines issued by the Supreme Court placed a parallel obligation on the State to come out with a strong legislation that primarily seeks to prevent acts of Sexual Harassment, besides providing an in-house redress mechanism against acts of sexual harassment at workplace.
The mandate of the Supreme Court was fine-crafted by the Legislature which was notified as “The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 and the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013.
The object of the legislature behind enacting the PoSH Act was three-fold
i)to prevent acts of sexual harassment of women at workplace;
ii)to protect against sexual harassment of women at the workplace and
iii)provide an internal mechanism for redressal of complaints of sexual harassment.

      The Act casts a responsibility on every employer to uphold working women’s fundamental right to equality and dignity at the workplace. The Act provides a civil remedy in addition to prevailing laws on the subject.
"The Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act and Rules, 2013 (“Law”) mandates every Employer to “provide a safe working environment at the workplace which shall include safety from the persons coming into contact at the workplace” (Section 19 (a))."
The first step towards identifying acts of sexual harassment in workplace is to distinguish welcome and unwelcome acts. It is significant to bear in mind that Sexual Harassment at workplace is unwelcome sexual behavior and the experience is individualistic. Unfortunately during the COVID-19 Pandemic workplace sexual harassment has risen steeply. It has shown its presence virtually. Sexual harassment through online platforms like sending of obscene or sexual messages, trolling, cyber stalking by colleagues and superiors, late night- video calls etc. The Act defines “workplace” in an inclusively broad perspective. It includes all organisations irrespective of their constitution including public limited companies, private limited companies, limited liability partnerships,partnership firms, trusts, societies, associations, proprietorships, and government departments and undertakings, as also any hospitals,nursing homes,sports institutes,stadiums or any place visited by the employee arising out of or during the course of employment.
      In addition the courts of our country through several judicial pronouncements have also sought to expand the meaning of workplace to include all places that is in proximity from the place of work; is a place/residence under the control of management, where working woman is residing; and is an extension or contiguous part of working place.The definition of workplace needs to be further examined in the light of the “work from home” model adopted during the Pandemic COVID-19. More and more individuals and particularly women are finding themselves vulnerable to online sexual harassment through digital platforms.
The courts in India are wakeful of this increasing trend and have recognized that in the present digital world, the definition of “Workplace” for employees of an organisation working in the same branch and later on shifted to different branches, will be treated as one work place on a digital platform regardless of the employees being situated in different branches/States. The Act imposes a duty on employer of every organization employing more than 10 people to constitute an Internal Complaints Committee. This ICC, is a body formed to receive complaints on sexual harassment at the workplace from an aggrieved woman/victim. The ICC plays an extremely important role when sexual harassment cases arise at workplaces. Once a complaint regarding sexual harassment is made to the ICC, it inquires in detail and thereafter decides whether the complainant or the person claiming to be a victim,has actually been harassed.After its findings, it gives out its verdict and decides whether punishment is to be given to the accused and if yes, the severity of it. The Act has helped to spread awareness on the subject which in turn has resulted in effective prevention and redressal of complaints against sexual harassment.