Sexual Harassment – The Law Blog

Creating a Safe Work Environment –Best Practices to Deal with Sexual Harassment at Workplace

Posted on 26 Apr 2018 by The Law Blog

“Giving women equal rights and entire nations are more stable and secure. Deny women equal rights, and the instability of nation is certain.”

-HILLARY CLINTON

INTRODUCTION

The very Indian Constitution provides right to equality to both women and men. Women have equal right to choose any profession and area of work or business activity. But in practice, women are discriminated against both in their homes and outside their homes.

Discrimination, on most of the times, includes elements of harassment and violence against women. Though the economic liberalization has provided a lot of job options and opportunities to educated women, and availing the same women are coming out of their homes to work in the profession of their choices. And presently, women are more career-oriented than ever before.

The above-mentioned socio-economic change has brought positive changes in the lives of women in the sense that a working woman feels economically independent and liberated. But at the same time, it has also increased the vulnerability of women for the crimes such as sexual harassment at workplace. Still, the things that keep on hovering over my mind regarding the equality of women pings me to think over these following questions that whether being a girl is a punishment? Is being a girl means losing her own self-respect and still working for her family, for others? Is being a girl means to spend her life in just four walls of her house?

The questions above being asked are because of the irrational and undesirable behaviours of men in and outside homes, which every second girl has to face daily in her routine life. This kind of unexpected behaviour is known as Sexual Harassment.

What is Sexual Harassment at Workplace?

To portray it very simply, it can be understood as an unwanted direct or indirect sexual contact, remarks or conduct on part of the male colleagues against their women colleagues at any workplace. Thus, sexual harassment at workplace includes both physical as well as mental aspects. Though it is difficult to put forth what constitutes sexual harassment at workplace but the Supreme Court of India has defined it in the case of Vishakha v. State of Rajasthan, 1997 as:

“Any unwelcome sexually determined behaviour (whether directly or by implication) as physical contact and advances, a demand or request for sexual favours, sexually coloured remarks, showing pornography or any other unwelcome physical, verbal or non-verbal conduct of sexual nature.”

Thus the above-mentioned definition under the Vishakha Guidelines cases makes it crystal clear that any unwelcome sexually coloured behaviour by a male against a female employee will be treated as sexual harassment at workplace.

SEXUAL HARASSMENT AND ITS LEGALITY

Sexual harassment is intimidation, bullying or coercion of a sexual nature, or the unwelcome or inappropriate promise of rewards in exchange for sexual favours. Gender equality in all dimensions is a basic human right and the Constitution of India (“Constitution”) guarantees all its citizens equality of status and opportunity.

Sexual harassment is considered as a violation of a woman’s fundamental right to equality, which right is guaranteed by Articles 14 and 15 of the Constitution. Workplace sexual harassment creates an insecure and hostile work environment, thereby discouraging women’s participation in work and adversely affecting their social and economic growth.
The Constitution also provides every citizen the ‘right to practice or carry out any occupation, trade or business’.
It includes the right to a safe environment, free from all forms of harassment. India’s first legislation specifically addressing the issue of workplace sexual harassment was enacted in 2013. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“Prevention of Workplace Sexual Harassment Act”) was made effective from December 09, 2013 by the Ministry of Women and Child Development, India[1].

Conclusion

On the crux, The Prevention of Workplace Sexual Harassment Act extends to the ‘whole of India’ and stipulates that a woman shall not be subjected to sexual harassment at her workplace. It can be said that though we now have a specific law to prohibit sexual harassment at workplace apart from already existing landmark guidelines of the Supreme Court of India but the menace cannot be controlled until and unless the mentality of males, in general, would not change. Until and unless the basic human dignity of women is not recognized and respected by men, no law will be effective. It is imperative that constitutionally guaranteed principles of equality among both the genders do not remain only empty words but also upheld in practice.

[1] The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“Prevention of Workplace Sexual Harassment Act”) was made effective from December 09, 2013 by the Ministry of Women and Child Development, India.

ABOUT THE AUTHOR

Priyal Kothari

Priyal Kothari is a competitive, diligent, hardworking and adaptive law student currently pursuing law from Bangalore Institute of Legal Studies and has chosen law as a career path for its veracity and scope which has thousands of opportunities for intellectuals to succeed in this field. Open to accepting new challenges and willing to gain practical knowledge and experience for carving a niche in the field of law. Apart from being into this field of law she has a great interest towards the world of writing and has written various articles and research papers too which has definitely given her a better insight. She has interned at Indus Towers Ltd., Shetty and Hegde, Kharliya and Associates, Singhvi and Co., and Mehta Chambers which definitely been an enthralling experience. Among this busy canvas, life’s commitments, personal accordance and passion coupled with the taste of happy and bitter things became and actually are the artist of her life with different colours of strokes getting widened and stretched day by day.

Pride and Dignity: Women at workplace

Posted on 9 Oct 20179 Oct 2017 by The Law Blog

In the era of globalization, modernization, and rationalization, one thing which is most applauded about is women empowerment. International leaders, celebrities, politicians, youth, and even the laymen talk about the blurring gap between men and women and uplifting women, not only socially but politically as well as economically. But the irony is, it is all loose talk in the air, because when the time comes to execute it practically, women are always portrayed as weaklings, needing male support at all times.

The esteemed workplace where she can prove herself itself becomes the place where her wings get clipped. The question which arises is, what stops her in her workplace to work efficiently? What stops her to work freely without fear? The answer is, unfortunately, SEXUAL HARASSMENT AT WORKPLACE. Statistics show seven out of ten women are sexually harassed at the workplace. Around ninety percent women are not aware how to deal with the situation or what can be done to stop it or is there any way out? Fortunately, the answer to all these questions is, YES! And the credit for such steps goes to the judiciary as well as the government of India. Now, what is needed is generating awareness among women as well as people regarding prevention of sexual harassment at workplace.

The Supreme court in Vishaka & others versus State of Rajasthan and others laid down guidelines directing that these guidelines would be strictly observed in all workplaces for enforcement of gender equality of women at the workplace.

The facts of the case were, there was a writ petition filed by some social activists with the aim of bringing the attention towards growing incidents of sexual harassment at workplace. It was aimed at preventing sexual harassment at workplace by laying down certain guidelines.

But the immediate cause for filing such petition was the gangrape of a social worker in a village in Rajasthan. It was contended that sexual harassment leads to violation of fundamental rights under Art. 14 (equality before law), Art. 15 (Prohibition of discrimination), and Art 21 (right to life and personal liberty) of a woman. But by laying down necessary directions court had endeavoured to ensure “A safe working environment to women”. The court even directed central as well as state governments to consider the appropriate legislation for the same.

The second step was the Sexual harassment of women at workplace (prevention, prohibition and redressal) act 2013 [SHW ACT]. The act defines sexual harassment as ANY Unwelcome sexually determined behaviour, and demands, from male employees at the workplace, which includes:

- any physical contacts and advances
- sexually coloured remarks
- showing pornography
- passing lewd comments or gestures
- sexual demands.

It mandates all the employers to constitute an INTERNAL COMPLAINTS COMMITTEE [ICC] at each office or branch with ten or more employees and requires fifty percent should be women. It requires time-bound redressal of complaints which should be confidential. It requires employers to conduct education and sensitization programs and provide a safe working environment.

The other initiative was Justice Verma committee; it recommended Employment Tribunal comprising two retired judges, two sociologists and a social activist to obviate the need of ICC which was not functioning as it was intended.

The latest and the most technically efficient initiative the government has launched is the SHE BOX (sexual harassment electronic box). Recently government launched an online platform, which will enable women employees to file complaints related to sexual harassment at workplace.

This online initiative seeks to ensure effective implementation of SHW act 2013. Once a complaint is submitted to the portal, it will be directly sent to the ICC of the concerned ministry or department.

The SHE BOX will cater effective and immediate and speedier remedy to women facing sexual harassment as well it will help the complainant to monitor the progress of the inquiry.

Currently, the complaint can be filed by central government employees only, which will later be extended to all. Under the vision of digital India program, it will help in achieving the goal of gender equality and women empowerment.

Barack Obama once quoted, “A country’s progress and future depend upon how we treat our women and girls”. Let us ensure that women can live their dreams, by ensuring a safe work environment at the workplace where they can work in par with their male counterparts with no obstacles coming in their way, and appreciation coming their way for achievements.

ABOUT THE AUTHOR

DEEKSHA KATHAYAT

Deeksha Kathayat is currently pursuing BLS LLB (third-year) from Dr. D. Y. Patil College of Law. An enthusiast debater and avid mooter, she’s into occasions where she can express her views on various issues. She believes that we realize the importance of our voice only when we are silenced. An aspiring bureaucrat, she describes herself as Unstoppable, Unconstrained, and Zealous.

Criminal Law, Cyber Law, Utility

Online sexual harassment

Posted on 17 Jan 201717 Jan 2017 by The Law Blog

In India, irrespective of whether we live in the urban or the rural area, one of the things that remains a constant is misogyny. We face misogyny from our births till the end of our lives, right from female infanticide to child marriages and dowry deaths; from sexual harassment at workplace to marital rape and eve teasing; and from eve-teasing to acid-throwing and rape, women are at the receiving end of each ill-treatment. And as offended as we are with what happens in the offline/tangible world, this blog post is not about that. Slowly, like a sickly disease, this very prejudice against women can be seen permeating the digital world as well. It is kind of scary when we think about it. The online world was and is still a safe haven for many, including me. People were protected by the computer/mobile screen which does not allow for direct face-to- face communication or real relationships. Now, not so much.

Why is this so scary?

Crimes in India are all governed by the substantive law formulated under the IPC (Indian Penal Code). This means that possibly every real world offence (either a committed or an omitted act which is a violation of a legal right) that you can think of has been defined and has a quantum of punishment under the Indian Penal Code. For example, assault and battery, rape, murder, culpable homicide, theft, trespassing, outraging the modesty of women, etc. The list is endless, really.

Crimes of a sexual nature need such a great amount of evidence that most accused are acquitted (pronounced not guilty). Either the trial takes too long, or the investigation is botched, or the accused gets away on the basis of a technicality. Thus, the reality is that not all offenders are caught and put behind bars to suffer the consequences of their actions.

In comparison to other crimes against women, cyber-bullies often do not realise the nature of the wrongful act being committed by them.

Sexual harassment is a punishable offence in India, irrespective of whether it is in tangible or intangible form. It is imperative to know which acts constitute sexual harassment, and how to fight sexual harassment to have an understanding of its online aspect. Sexual harassment is defined as the unwanted intrusion of a sexual nature in the personal space of an individual.

Online sexual harassment can be punished under Section 67 of the Information Technology Act, 2000 along with relevant provisions of the IPC. For example, outraging the modesty of a woman, showing pornographic content without consent, making sexually coloured remarks or asking for sexual favors online are punishable offences under Section 67 of the Information Technology Act. This act makes transmitting or publishing obscene material in electronic form punishable by imprisonment upto 3 to 5 years and a fine of upto 5 to 10 lakh rupees.

Online sexual harassment has been found to manifest into three large categories:

a. the victim is on the receiving end of pornographic material, lewd comments and insults.

b. offensive material is posted about the victim on a public platform; or

c. offensive material of/about someone is posted without their consent.

Online sexual harassment has now become a harrowing reality faced by more than 70% of women in urban areas. In such a reality, it is of paramount importance that you know how to protect yourself from it.

Here is a step-by- step guide on how you can protect yourself against online offenders:

Step 1: Proceed with caution

A precautionary method to protect yourself is to privatise your social media accounts. This way, no anonymous user will ever be able to harass you as your posts will not show up on their feed. Also, make sure that the information you post on social media is not sensitive, i.e., photos of yourself and/or your phone number on public access networks. These can be used in a wrong way.

Step 2: Block, Block, Block

If the privatisation of your accounts is not enough and you still receive or are tagged in offending material, then you can block such a person. If anyone emails or texts you with objectionable material, block them. It’s the simplest way of protecting yourself from online trolls. All social media sites provide the facility of blocking hostile elements from your feed.

Step 3: Report to the host website

Any material which you find as derogatory to yourself or your views can be removed when you report such material to the host website. You can also report a person repeatedly for making derogatory remarks. This can get that person’s account shut down permanently by the host website.

Step 4: File an FIR

If a person is repeatedly sexually harassing you through multiple fake accounts, or publishing derogatory content posing as you, then you can file a police complaint against him/her to protect yourself.

Many women feel helpless when faced with online sexual harassment. However, one doesn’t need to live in fear anymore. Have faith in the judicial system and your modesty will be protected if the necessary precautions and actions are taken at the right time. Remember that Indian Penal Code as well as the Information Technology Act, 2000, have your back. One protects you in the real world whereas the other, in the virtual one. It must be kept in mind that the wheels of justice may be slow, but they exist nevertheless.

Now that you know about what steps to take in case you are ever faced by online trolls, let others gain from it too. Share the post, and let it reach far and wide, because someone somewhere might be facing an online harassment and may need help.

ABOUT THE AUTHOR

Khadija Khalil is currently pursuing 3 rd year of BLS/LLB course at Pravin Gandhi College of Law, Mumbai. With a love for the smaller things in life (being 5 ft tall), she is a geek who found law to be her fandom. Also a moot court enthusiast, because, why not.

Criminal Law, Critical Analysis

Sexual Harassment of Women at Workplace Act, 2013: An Overview and Suggestions

Posted on 29 Nov 201629 Nov 2016 by The Law Blog

This article has been written by Mohini Singla. Mohini is currently a student in Army Institute of Law, Mohali.

The need for Sexual Harassment of Women at Workplace Act was talked about for the first time after the case of Bhanwari Devi. After this case Vishaka guidelines were framed in 1997. These guidelines in 2013 came out as the Act. This Act aims at protecting women from harassed at their workplace. It is beneficial as this act provides for speedy trial as within the company’s internal committees are formed to solve such matter. But with all these benefits comes with loopholes mainly being that this act is not gender neutral. But one major point of this act is that it punishes women who file a wrong case. This helps in reducing fake cases being filed and takes back the extra leverage given to women in usual cases. This act ignores Men as they are also being harassed and there is a need to bring all such cases also under surveillance.

Failure of this Act

1 Even after the passing of the act number of cases have rapidly increased. Government data shows that there were over 300 complaints of sexual harassment last year; the figure has steadily climbed over the last few years from 107 cases in 2011, 147 in 2012 and 249 in 2013.[1] This clearly shows that the cases are increasing at a rapid rate. Law if made and is not successful in threatening the wrongdoers or if it does not reduce the number of cases, it is said to have been never there. The increasing complains are a major problem. But the unreported cases are also a major problem a lot many cases go just like that either by accepting such unwelcome responses or by quitting up of the job. Both the remedies taken up by the victim shows incompetence on the side of law.

2 The Internal committees are not set up in most of the organizations and if they are set up they are not functional. They are not having any person with legal knowledge as such hence they are sometime not capable of deciding the matter. The matter should only be decided by competent authorities and not by anyone in general. Hence selecting anyone for the committee is a failure in itself. Only competent jurists can decide upon such a matter which relates to the modesty of the women. Their protection is given in the hands of a person who does not know what all remedies could be given to the victim except this act. And it reduces the confidence of victim in the court decisions. It leads to constant disturbance in the mind of the victim as if she is in the safe hands or not. It is a crime which could be committed again and again. Hence just by a lenient order may be the crime would be committed again hence it needs a proper check by proper people at proper time in a proper manner.

3 Even though awareness has increased but still number of unreported cases are also increasing. Hence still the Government and the organizations have to take reasonable steps to spread awareness about it amongst all the people. As illiterate women are also working hence to protect them also they should be given knowledge about it. Certain NGO’s have been set up by individuals and sometimes even funded by states sometimes to spread awareness. But still people in far off villages do not know about their rights or remedies which are available to them. Illiterate women sometimes even if they are in cities do not know how to react or where to go in such situations, they are adversely affected. Hence if law is made and people do not know about is in itself a failure. As laws are made for the welfare of the society and if that does not happen it means it is of no use. Even big organizations do not have this internal complain committee in their set up. As it is a new concept and they even take it as a extra unnecessary burden.

Suggestions

1 Tribunals should be set up in spite of internal complaint committee as there will be more of legal people involved to solve matter which is eminent to protection of modesty of women. Setting up of Tribunals will increase the faith of victim to file as a case as internal committee may be biased as if the case is against the owner. As the matter is concerned with a major offence which could take a worst shape afterwards, hence proper check should be there as to stop it at such an initial stage and from taking a worst shape afterwards.

2 The Act should be made gender neutralized as to give equality to all .As this grave injustice is even against men. Men are also sexually harassed at workplace hence they also need due care and Equality before law as Section 14 of Indian constitution provides for is also violated by not giving such right. They even have the right of equal protection under law, even though state can make special provisions for women and children under Article15 clause 3. But still if any injustice is taking place against both genders so the law if made, should be gender neutralized.

3 There should be awareness camps organized by government and organizations to educate women about their rights and about everything from filing of case till remedies in order to give them confidence so that they can raise their voice. They should be properly made and should go to distant villages as this would not only stop sexual harassment of women at workplace but also encourage participation of women in work as they will have a sense of freedom and safety while they work. This would indirectly increase women participation at work places.

4 There should be more legal professionals involved in the internal complaint committee as to assure they have knowledge to decide the case in the right manner. If legal professionals are included in the committee it gives the victim an assurance that she is in safe hands, hence to increase people faith towards law and executive it is necessary to have proper executive body while implementing laws made by the legislature.

5 The compensation should not be according to the salary of the accused but should rather be on the principal of being just and fair as according to how much it actually should have been and not according to the convenience of the accused.

6 Punishment to the accused should be enhanced as the punishment under the statute is not sufficient it should be increased and more stringent punishment should be awarded. Punishment discourages a man to commit further wrong. Hence, stricter penalization of fines along with putting the person behind bars should be included. As it would increase the fear of law in the mind of the wrong doer.

7 There should be free talk as to the matter as it will help in solving the problem up to a greater extend as it will form better relations between employer and employee to refer to the problems faced by them in usual course of business. Seminars, discussions and meetings should be frequently held. As it give confidence to the employees to bring any problem in front of the employer.

8 Sexual harassment awareness training should be there in every organization as to educate them via workshops, seminars, lectures and real life examples they should be taught how to react and where to go in case of any harassment done to them.

9 News television only made it worse. The case became a subject of debate, in which some started to look for inconsistencies in her account. Every “panel discussion” added to her agony. The friend says it took a long time for the woman to be able to write again. “And fighting through depression and suicidal urges was only possible with the support of close friends, family and counsellors.” Hence there should be proper check on them also to protect the victim.

[1] India: Overview Of The Sexual Harassment Of Women At Workplace.16 April, 2015. http://www.mondaq.com/india/x/348338/employment+litigation+tribunals/Overview+Of+The+Sexual+Harassment+Of+Women+At+Workplace

The November book bucket