Hon’ble The Chief Justice
K. Vinod Chandran
Hon'ble Smt. Justice
Gunnu Anupama Chakravarthy
Hon'ble The Chairperson
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.
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