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. Furthermore, the said harassment can be both mental as well as physical. More often than not physical harassment takes the form of sexual harassment or Sexual violence. Sexual harassment in general and sexual harassment at workplace in particular is the hard reality which is faced by working girls and women in day to day life.
Though the economic liberalization has provided 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 change in society 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.
What is Sexual Harassment at Workplace
In simple terms it can be understood as 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 define 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 behavior (whether directly or by implication) as physical contact and advances, a demand or request for sexual favors, sexually colored remarks, showing pornography or any other unwelcome physical, verbal or non-verbal conduct of sexual nature.”
Thus the above definition makes it very clear that any unwelcome sexually colored behavior by a male against a female employee will be treated as sexual harassment at workplace.
Reasons of Sexual Harassment at Workplace
Reasons for sexual harassment of women at workplace are many; some reasons are of generally prevailing in the society as a whole but some are specific to workplace. A few among them will be discussed below:
The basic reason behind almost all types of harassment or violence against women lies in our society’s patriarchal structure whereby a male always thinks himself superior than the woman in every aspect of life. This superiority complex manifests itself in various kinds of discriminatory practices against women in general and also against working women. Thus, a male colleague would not like his female co-employee to work with him equally or he would not like her to reach at a higher position in the office; and to make her feel inferior or to make her uncomfortable or in order to harass her, different kinds of techniques are used by male colleagues and prominent among these are sexually colored techniques such as indecent remarks, unwelcome conduct, showing of vulgar images or videos or any other similar behavior.
Apart from this, sexual perversion of mind among certain individuals is also one of the major reasons of sexual harassment of women at workplace. While more and more female employees are being recruited by both public and private sectors, such men have got an easy access to indulge in sexually perverted behaviors.
Jealousy at Workplace:
Jealousy at workplace is also a reason for such crimes against women employees; a male employee would not like to see his female colleague to get success, promotion or incentives by the employer. And in jealousy, he would harass her through sexually perverted behavior. It is also linked to perceived superiority feeling among men that a woman could never become better than them.
Feeling of Contempt and Disrespect:
Apart from these reasons, a general feeling of contempt and disrespect for women among male species is also a prominent reason whereby women are considered only as an object to fulfill sexual desires of men. We might respect women in our homes but other women in the society are not treated as such. Women at workplace is no different; male colleagues consider them as their object of play, vulgar comments and jokes, obscene gestures, gossips of sexual nature etc are the norms of any workplace. Though, in our society we claim to respect and worship women but in reality various types of crimes committed against women shows that our claim in nothing but a falsity.
Thus, there can be several and varied reasons for sexual harassment of women at workplace but the essential elements of all such reasons is the deep rooted feeling of Male Superiority among men in general. The social conditioning of men in a patriarchal system reinforces such feeling generation after generation which creates the base for crimes like sexual harassment at workplace.
Legal Provisions to Deal with Sexual Harassment at Workplace
Sexual harassment at workplace as a specific crime was not there in statute books till 2013. Even the Indian Penal Code, 1860 do not have any section dealing with workplace sexual harassment as a separate crime. Only sexual harassment in general has been defined and made punishable under Section 354 of the IPC. Thus, sexual harassment at workplace was also being dealt with under the same section till now.
The Supreme Court of India in the case of Vishakha vs State of Rajasthan in 1997 had recognized this flaw or loophole in the IPC and gave a landmark decision whereby it gave certain guidelines which were to be followed by both public and private sector organizations to provide protection and redressal to female employees from sexual harassment in their organizations.
The said guidelines made it mandatory for employers to protect their female workers from sexual harassment; proper inquiry was made necessary in case of any complaint of such nature; it was directed that every organization must have a Complaint Committee headed by a woman to deal with such misconducts readily; rules prohibiting sexual harassment should be notified and publicized; penalties are to be imposed in case of violation of said rules; also, employers were directed to protect their women employees from third party harassments.
These guidelines were the only provisions regarding workplace sexual harassment prohibition for last 16 years; and only in the year 2013, the Parliament of India enacted a specific Act to deal with this kind of harassment of women in the name of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Prevention) Act, 2013.
Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
The Act came into effect on 9th of December, 2013. As the name suggests its objective is to prevent, prohibit and in case of violation, to provide redressal to the victim.
This Act contains almost all of the directives given by the SC in Vishakha case and it also consists of several other provisions such as: the Complaint Committees have been granted the powers of Civil Courts in garnering evidences; if the employers fail to comply with the provisions of the Act they will be liable for penalties up to Rs. 50,000; also, the Act includes in its purview workers of un-organized sectors such as daily wage laborers working in construction business or maids working in homes etc.
Thus, the Act is an attempt to provide working women a mechanism to counter the menace of sexual harassment at workplace. It has streamlined the guidelines given in Vshakha judgment and has also mandated a Statutory obligation on employers to follow its provisions.
However the Act has few loopholes also such as it has not specifically made conduct of sexual harassment as crime but only a civil wrong which is a major flaw; when the victim is willing to initiate criminal proceeding only then a criminal complaint would be filed; also there is a possibility of senior male employee or boss of the victim might force her to withdraw her complaint.
Thus, the Act can be said to be a right step but it is not entirely free of flaws and there still is a scope of improvement in it. Even now, the victim has to seek criminal remedy under the Indian Penal Code to get full justice. And again the criminal complaint would be initiated under Section 354 which does not specifically deal with sexual harassment at workplace but is a general provision.
Therefore, as per the law private and public both sectors are under statutory compulsion to protect their female employees from sexual harassment in their organizations but the problem lies in its implementation and compliance. It is still early days and most of the organizations, barring some big ones, have not yet complied with the provisions; they don’t even have formulated the Rules to publicize what constitute sexual harassment at workplace and what will be the penalty for it or what is the redressal mechanism for the victim; even the Internal Complaint Committee is not there.
The recent example is the case of Tehelka magazine where its Chief Editor was allegedly involved in such misconduct and it was later found out that there was no Complaint Committee or any mechanism to deal with sexual harassment complaints as per the Vishakha guidelines.
Thus, only the time will tell that whether the recently passed Sexual Harassment of Women at Workplace (Prevention, Prohibition and Prevention) Act, 2013 would be effective in checking and prohibiting this specific crime whose victims are ‘working women’ only.
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. Till the basic human dignity of women is not recognized and respected by men, no law will be effective. It is important that constitutionally guaranteed principles of equality among men and women do not remain only empty words and should be upheld in practice.