Sexual
Harassment – Meaning
As per Indian Laws Sexual harassment can be defined as acts such as unwelcome sexual gesture or behavior whether directly or indirectly , sexually colored remarks, physical contact and advances showing pornography ,a demand or request for sexual favors, any other unwelcome physical, verbal/non-verbal conduct being sexual in nature and Passing sexually offensive and unacceptable remarks. The critical factor is the unwelcomes of the behavior, thereby making the impact of such actions on the recipient more relevant rather than intent of the perpetrator.
Sexual
harassment – Law Provisions
Laws and Acts under Indian Penal Code (IPC)
• Section 209: Obscene acts and songs, to the annoyance of others like:
a) does any obscene act in any public place or
b) sings, recites or utters any obscene song, ballad or words in or near any public place.
Punishment: Imprisonment for a term up to 3 months or fine, or both.
(Cognisable, bailable and triable offense)
• Section 354: Assault or use of criminal force on a woman with intent to outrage her modesty.
Punishment: 2 years imprisonment or fine, or both
• Section 376: Rape
Punishment: Imprisonment for life or 10 years and fine
• Section 509: Uttering any word or making any gesture intended to insult the modesty of a woman
Punishment: Imprisonment for 1 year, or fine, or both. (Cognisable and bailable offense)
The Indecent Representation of Women
(Prohibition) Act (1987)
Although it is not known to have been used in cases of sexual harassment, the provisions of this act have the potential to be used in two ways:
Although it is not known to have been used in cases of sexual harassment, the provisions of this act have the potential to be used in two ways:
• If an individual harasses another with books, photographs, paintings, films, pamphlets, packages, etc. containing ‘indecent representation of women’; they are liable for a minimum sentence of two years
• A ‘hostile working environment’ type of argument can be made under this act. Section 7 (Offences by Companies) – holds companies where there has been ‘indecent representation of women’ (such as the display of pornography) on the premises guilty of offenses under this act.
Punishment: Minimum sentence of two years
Additional News
The President Pranab Mukherjee has given his assent to a bill under which cases of sexual harassment at workplace, including against domestic help will have to be disposed of by in-house committees within 90 days failing which a penalty will be imposed.
Repeated non-compliance of the provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) law, can lead to higher penalties and even cancellation of license or registration to conduct business.
The bill was cleared by Parliament in February 2013.
The new law brings in its ambit even domestic workers and agriculture labor, both organized and unorganized sectors.
As per the act, sexual harassment includes any one or more of unwelcome acts or behavior like physical contact and advances, a demand or request for sexual favors or making sexually colored remarks or screening pornography.
Non-compliance with the provisions of the act shall be punishable with a fine of up to Rs 50,000. It has also provisions for safeguard against false or malicious charges.
A Parliamentary Standing Committee, which had examined the bill, had held the firm view that preventive aspects reflected in it has to be strictly in line with the Supreme Court guidelines in the 1997 Vishaka case.
The apex court's judgement in the case not only defines sexual harassment at workplace but also lays down guidelines for its prevention and disciplinary action.
A summary of Vishaka case, Supreme Court, 1997 for Sexually Harassed women in India
Introduction
Vishaka case of sexual harassment at workplace is a case of landmark judgement by Supreme Court of India. Not because it was attack on working women’s fundamental right to work without fear and prejudice. Not becase it is a saga of immense torture of a naïve working woman. Not because a woman showed exemplery courage to fight against the male ego our immoral society.
It is a landmark case because first time ever it was officially recognized at such a high level of need for laws for sexual harassment and laying down of guidelines of sexual harassment of working woman. Till 1997 even after India’s independece of 50 years there was hardly any law to safeguard sexual harassment of working women. As I write this, I’m very much ashamed of being an Indian and even more being an Indian women. It is no less than a curse.
The women harassment bill, 2010 is still being worked out. And there no special laws to safeguard sexually harassed working women. Just some guidelines from different courts in India, more importantly from Supreme Court of India.
However I want to narrate short summary of Vishaka case guidelines of Supreme Court for a layman. I’m not a legal expert, but only a layman like you, but yes a victim of sexual harassment.
You should try to understand it in simple terms and please don’t contact any lawyer in the first place. Yes, please do contact nearby women cell, women right activists or at least contact us or raise the issue in ournon-profit Indian working women’s forum. If you raise it in the working women’s forum then we’ll try to contact appropriate women cells/activists or lawyers to answer you query(eventhough the forum may be empty, but we’re watching it for support requests)
General Points
- Gender equality includes protection from sexual harassment and right to work with dignity as per our constitution.
- Extra hazard for a working woman compared her male colleague is clear violation of the fundamental rights of ‘Gender Equality’ & Right to Life and Liberty.
- Safe working environment is fundamental right of working woman.
- In no way working women may be discriminated at workplace against male employees. (If a woman is, then it must be documented in company policies, for example limitation of women in police and armed forces)
- Working with full dignity is the fundamental right of working women.
- The right to work as an inalienable right of all working women
- The right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction(pregnancy, maternity & nursing etc) is fundamental right of working women
Following can be termed as sexual harassment
- Anything at work that can place the working woman at disadvantage compared to other male employees in her official career just because she is a woman – can be termed as sexual harassment
- Unwelcome sexually determined behaviour & demands from males employees at workplace:
- any physical contacts and advances
- sexually colored remarks
- showing pornography
- passing lewd comments or gestures
- sexual demands by any means
- Any roumors/talk at workplace with sexually colored remarks about a working woman. Even spreading rumour about a woman’s sexual relationship with anybody
Employers Duty
It is an obligatory requirement for employers:
- Appropriate notification/advertisement to be issued for prohibition of sexual harassment at workplace for the employees of the company.
- State government, central government and PSU bodies to include in their conduct and discipline rules/regulations prohibiting sexual harassment plus mention of penalties for those found guilty of sexual harassment.
- For private employers, prohibition of sexual harassment and penalties to be included in the standing orders under the Industrial Employment (Standing Orders) Act, 1946.
- Employers need to provide conducive & appropriate work conditions for women staff in the view of : work, health, hygiene & leisure. In short there mustn’t be any conditions creating hostile environment towards working women staff and any conditions which could put women at an disadvantage position with regards to her career compared to other male employees of the company.
- The employer will need to have a written complaint mechanism which will need to include time frame of resolution of sexual harassment claims.
- Employer should help the victim phychologically with counselling etc.
- Employer should maintain confidentiallity of the complaint and the identity of the woman who raised the complaint and complaint specifics.
- Employers are bound to inform the details of sexual harassment complaints to appropriate government bodies/labour department etc, every year. In short it’ll be illegal to hide any sexual harassment complaints raised in the company or with the employer and not report to government authorities.
- Employer should allow and encourage the employees to raise sexual harassment issues in worker’s meetings and at appropriate forums. And all those complaints need to be affirmativelydiscussed. In other words the employer must provide easy way to discuss sexual harassment issues and should not show any lack of interest.
- Employer should take steps to make working women aware of their rights to equality in everything in workplace by prominently notifying the guidelines by appropriate means ( like sending emailers, sending letters, displaying rules on notice boards)
- If the sexual harassment is due to third party that is not anything related to the employer but by another person from different organization which you interacted with him as part of discharging your official duties whether in office space or outside, then the employer will need to take all necessary steps to assist and help the victim in the terms of support & preventive action
Employers duty after receiving a sexual harassment complaint
- The employer must assess the crime and if required legally, it must register complaint with appropriate government authorities. For major sexual harassment cases, it beehoves on the employer to immediately bring the issue to notice of local Police and also nearby women cells. The employers should not delay filing a police complaint just try to save it’s company’s image.
- The employer will need to ensure that the victim is not further traumatized or victimized. Employer must not persecute the victim in any way due to a woman’s complaint.
Setting up of Complaint Committee by the employers
- Committee should be headed by a woman
- More than 50% of committee members should be women
- The committee should also consist of third party members not affialiated to the company or employer in anyway. Preferably from NGO’s, women right activists who are familiar to the issue of sexual harassment. If you’re a victim then you should be quite vigilant to this member as every company/employer tries to include their "friends" in such committes which will not object to the decisions made by the committee members on their payrols and loyal to the company, prejudicing the sexually harassed woman. If it is the case, then please contact us immediately.
Advantage to the victim
The victim of sexual harassment should be given the option to seek the transfer of the culprit or her own transfer to another department/palce etc.
