Sexual Harassment as an unwelcome behavior of sexual nature. Sexual harassment can be broadly defined as ‘an unwelcome sexual advance that leads to the creation of a hostile and offensive work environment for a person’. The laws of different countries is defined it in different ways. In the modern legal contexts it is illegal.
According to a survey In women anger, annoyance and emotional responses are there when someone harasses 41% annoyance, 36% embarrassment , it can lead mental problems, depression , psychological problems etc. Which can affect the physical health or mental health . A person who sexually harasses primarily responsible for sexual harassment case. It can cause physical effects like fatigue, headaches sleeping disturbances and eating disturbances some forms of sexual harassment includes discussing sexual relationships , physical acts of sexual contact, sexual coloured remarks, unwanted touching and showing pornography.
Sexual harassment at workplace is a universal problem in the world whether it be a developed nation or a developing nation or an underdeveloped nation, cruelties against women is common everywhere. It is seen to be happening more with women and it is a very serious problem across the globe. India’s law on prevention of sexual harassment of women at workplace was enacted in 2013
What is sexual harassment?
Sexual harassment has been identified as the range of behaviors. It is defined by both nation and international level. The term is subjected to different interpretations. As per the High Court of Delhi a ‘physical contact’ constitutes ‘sexual harassment’.
“Sexual Harassment” includes the following namely:
• Physical contact or advances
• A demand or request for sexual favors
• Making sexually colored remarks
• Showing pornography without consent
• Any other unwelcome physical, verbal or non-verbal conduct of a sexual nature
• Unwanted deliberate touching, leaning over, corner or pinching.
• Actual or attempted rape or sexual assault.
• Whistling at someone.
What constitutes ‘workplace’?
The definition of ‘workplace’ means places visited by employees during employment, or reasons arising out of employment including transportation provided by the employer for commuting to and from the place of employment.
In a case where a female employee had alleged that sexual harassment done by a colleague during a visit to Hyderabad, the High Court of Delhi upheld the employer’s decision to terminate the employment of the accused based on the recommendations and decisions with regard to Internal Committee.
Indian constitution on sexual harassment
Sexual harassment clearly violates the fundamental rights of women to Equality under Article 14(2) and Article 15(3), her right to life under Article 21(4).
The power of the Supreme Court under article 32 of the constitution for the enforcement of the fundamental rights and the executive power of the union have to meet the challenge to protect the working women from sexual harassment and to make their fundamental rights meaningful. Governance of the society by the rule of law mandates this requirement as logical commitment of the constitutional scheme.
The Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act, 2013
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 is an act in India protects women from sexual harassment at their work place. It was passed by both the houses of the Indian Parliament i.e. Lok Sabha and Rajya Sabha. Thus the Act came into force from 9 December 2013.
Main features of the act
1. The POSH Act defines sexual harassment at the work place and creates a mechanism for redressal of complaints and it also provides safeguards against false or malicious charges.
2. The Act covers the concepts of ‘quid pro quo harassment’ and ‘hostile work environment’
3. The definition of “aggrieved woman”, who will get protection under the POSH Act.
4. An employer has been defined as any person who is responsible for management, supervision, and control of the workplace.
5. The Committee is required to complete the inquiry within a time period of 90 days.
6. The Complaints Committees have also the powers of civil courts (cpc) for taking evidences.
7. This Act also lays down a penalty of Rs 5000 on the person who has breached confidentiality.
How should the inquiry proceedings be conducted?
The High Court of Delhi stated that if the employer believes that an allegation is true, then a new International convention needs to be formed and the proceedings should start fresh.
Adhering to the principles of natural justice, the High Court of Delhi pointed that in the inquiry proceedings, strict rules of evidence are not required to be followed.
The High Court of Kerala pointed out that the inquiry as per the Protection of Women from Sexual Harassment at workplace, 2013 is supposed to be a full-fledged inquiry, similar to a disciplinary inquiry in cases of misconduct. The High Court of Delhi reiterated that the findings of an IC should not be ignored on vague and general grounds.
Case laws enable employers and their internal committee to deal with sexual harassment complaints keeping in mind the judicial interpretation of the law.
Sexual harassment could be a serious problem in the workplace and it receives a lot of negative attention. The cruel reality of sexual harassment cases at workplace is that there is more to worry about under-reporting than people misusing the law. With the appearance of this present legislation, a paradigm shift may be noticed in the way employers are made liable for the breach of law by its employees. Thus, the law that aims to produce a secure working and operating environment for women puts the encumbrance on the woman to prove that she doesn’t have a safe and secure workplace environment or atmosphere and doesn’t make it the legal responsibility of the employer.
This is symptomatic of neo-liberal policies where victims are “empowered” to seek legal redressal with little state or institutional commitment to social equity. However, whereas the Government of India has been taking steps to monitor implementation of the 2013 POSH Act in government offices, there is an absence of mechanism to check execution in the private sector. The damage that is happening as a result of state apathy is unpardonable and irreparable.
Author: Anjali Thakur,
Gitarattan international business school ip university