Sexual Harassment of Women at Workplace in Unorganized Sector: Critical Analysis

Sexual Harassment of Women at Workplace in Unorganized Sector: Critical Analysis

Author: M Sapna Kataria,

3rd year, School of Law,
CHRIST (Deemed to be University)

ABSTRACT

In the wake of globalization, the rights of women in India is gaining substantial importance. The working sector can be divided into organized and unorganized sector, wherein the latter includes fragmented workforce working individually or in a group less than ten. In the current scenario, women are not aware about the various rights provided to them under the Constitution of India and various statutes, especially in the unorganized sector. Women have been exposed to sexual harassment at workplace for over many decades now. However, the first time the crime came into highlight was in the year 2012, in the case of Vishaka v. State of Rajasthan, wherein the Supreme Court laid down certain guidelines to punish such crimes. Owing to this case, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 was enacted to ensure safe working spaces for women and to build enabling work environments that respect women’s right to equality of status and opportunity. However, the case and the Act failed to address sexual harassment of women at workplace in unorganized sector. This paper aims to critically analyse the current legal scenario in India, protecting the rights of the labour force in unorganized sector, in specific to sexual offences against women at workplace in unorganized sector. Furthermore, the paper would analyse the protection granted to women against such crimes, through international instruments such as the International Labour Organization. Additionally, the paper would draw a comparative analysis between the laws existing in India and that of international countries that have specific laws to avoid such crimes.

Keywords – Sexual Harassment, Women, Unorganized sector, equality, punishment
RESEARCH PAPER
Introduction:
With the advent of globalisation, the number of workers being employed in the factories has escalated by a great number. The workforce working in various industries can be apportioned into two categories – organized or formal sectors and informal or unorganized sectors. The expression unorganized sector is defined under Section 2(f)[1] of the Unorganised Worker’s Social Security Act, 2008, as any enterprise owned by individuals or self-employed workers who are engaged in the production or sale of goods or providing service of any kinds, the number of such workers being less than ten. Thus, it can be concluded that the unorganized workers mostly engage as home based workers, street vendors, mid-day meal workers, brick kiln workers, rag pickers, domestic workers and similar occupation.[2] A significant percentage of the jobs in this sector are managed by women who belong to lower caste. As per the survey conducted by the National Sample Survey Office, the number of estimated employed persons in 2011-12 on usual status basis were 47.41 crore, out of which 82.7% of workforce (39.14 crore persons) was in the unorganized sector.[3] Additionally, the Economic Survey of 2018-19, states that “almost 93%” of the total workforce is ‘informal’.[4] On perusal of these surveys and reports, it can be comprehended that major fragment of India’s workforce is employed in the unorganized sector.
The proportional increase in the number of women employed in the informal sector to the number of people employed in the informal sector is extremely high. According to the survey conducted by the National Commission for Women, the total number of women in the unorganized sector is an estimate of 94 percent.[5]Irrespective of the increase in the number of women employed in the unorganized sector, there are very few mechanisms available for women to protect their basic rights. The women in this sector are oblivion to the rights they can avail through the very few mechanisms available; and are prone to evils such as illiteracy, long hours of, discrimination, lack of job security and sexual harassment.[6]Moreover, the work situations and conditions of these women are not officially recorded and their working conditions are not safeguarded by law and therefore, the predicaments of female workers in unorganized sector is not appropriately recognized.

Jurisprudence:

One of the serious and pervasive problems in today’s society is the sexual harassment of women at workplace. Women face sexual harassment in all kinds of industries, but it is highly prevalent in the unorganized sector owing to certain reasons like cultural differences, illiteracy, poverty, need for oppression of women by certain classes of men, domination of men in this sector, excess consumption of alcohol or drugs[7], bad implementation of existing laws and no stringent company policies to protect the women against such crimes. Sexual harassment is not only an unlawful intrusion of her right to privacy, but it is also a serious blow to her honour and offends her dignity and self-esteem.[8] The first time the evil of sexual harassment of women at workplace came into highlight in the year 1997, in the case of Vishaka v. State of Rajasthan[9], wherein the Court emphasized on the importance of safe working environment of women is a fundamental right and held that sexual harassment of women is violative of Articles 14[10], 15[11] and 21[12] of the Constitution of India. Furthermore, the Court laid down certain points to specify that sexual harassment includes not only physical harassment but also mental harassment and defined sexual harassment to include – 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.[13] Thus, sexual harassment need not involve physical contact. Any act that creates a hostile work environment – be it by virtue of cracking lewd jokes, verbal abuse, circulating lewd rumours etc. counts as sexual harassment.[14] However, one of the shortfalls of this case was that it failed to extend the protection provided through the framework introduced to the ambit of sexual harassment of women at workplace in unorganized sector.
The Legislature nearly after almost 16 years tried to overcome this shortfall and adopt the guidelines provided in the Vishaka case[15] by introducing the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter referred to as ’POSH Act’. The Act aims to provide protection against sexual harassment of women at workplace and for the prevention and redressal of complaints of sexual harassment and for matters connected therewith.[16] It takes a step to include the unorganized sector and dwelling places and houses under the ambit of the definition of workplace.[17] It provides extensive definitions such as that of sexual harassment, domestic worker and unorganised sector. It also states who would be an aggrieved woman and employee, employer for the purpose of this Act. The Act also provides redressal of complaints of sexual harassment within the workplace. It makes it mandatory for the constitution of a Local Committee (LC) at the district level for the redressal of women in the unorganised sector. However, there are many shortcomings that come along with the enactment of this law. Firstly, the Act makes it mandatory for the allegations to be made within 6 months of the incident. This is highly controversial as women in the unorganised sector are not aware of the benefits they can avail due to illiteracy and oppression. Moreover, studies indicate that due to the conservative nature of women in India, majority of them do not resort to any kind of formal action against sexual harassment[18] Secondly, most of the Districts do not have an officer appointed to address the complaints of the unorganized sector. Moreover, the Act fails to provide qualifications for the District Officer. Thirdly, the POSH Act rests certain duties upon the employer in case of these crimes such as creating a Code of Conduct for the workplace, however it is difficult to determine who the employer is in the case of unorganized sector[19]and hence, there is no person to hold responsible in case such duties ar
e not followed. 
Before the introduction of the POSH Act, the crime of sexual harassment against women at workplace was penalised under Sections 354[20] and 509[21] of the Indian Penal Code. Therefore the POSH Act sought to eliminate specific deficiencies in the workplace environment though the labour law regime, which was not addressed earlier through the criminal law framework.
The Unorganized Labour’ Social Security Act, 2008 is the only law in India that primarily deals with protection of the interests of workmen in unorganised sector only. One of its objectives is to improve the safety conditions and safety of workers in the unorganised sector.[22]Even though, it’s the only law that revolves centrally around the ideology of protection of workers in unorganized sector, it neither provides for specific provisions for the safety and protection of women against sexual harassment in the unorganised sector, nor does it provide for penal provisions against such crimes
Domestic workers constitute a major portion of the unorganized sector and it is necessary for the laws to provide a strict framework to protect their rights and punish any crimes against them. Section 23 of the Domestic Workers (Registration, Social Security and Welfare) Act, 2008 states that sexually exploiting a women or child is as offence punishable under this Act with an imprisonment for not less than six months and which may extend up to period of seven years and fine up to 50000 rupees or both.[23]However the Act fails to provide a framework or procedure to be followed in case of such crimes.
The Domestic Workers Welfare and Social Security Bill, 2010 and the Domestic Workers Regulation of Work and Social Security Bill, 2017 tried to hold the employers responsible for such crimes by making it mandatory for all domestic workers, employers or service providers to be registered, within one month of the commencement of the employment of the domestic worker, in the household, with the ‘District Domestic Labour Welfare Board’ and the District Board respectively. However, the Bills were not passed and hence, this mechanism could not be utilised.
The new Codes on social security and on occupational and safety welfare that have been introduced in the Parliament and are being debated upon  also do not provide mechanisms to protect the interests of women and provide a rigid mechanism for sexual harassment against women in the unorganized sectors.

International instruments:

There are various international laws and policies that aim to provide safeguard to women against sexual harassment at workplace. Articles 2 and 4 of the United Nations General Assembly Resolution 48/104 on the Declaration on the Elimination of Violence against Women defines violence against women and includes sexual harassment against women at work, in educational institutions and places similar to that. It further encourages development of penal, civil or other administrative sanctions, as well as preventative approaches to eliminate violence against women[24]
Secondly, the Articles 7 -16 of the Convention on the Elimination of all Forms of Discrimination against Women directs States Parties to take appropriate measures to eliminate discrimination against women in all fields, specifically including equality under law, in governance and politics, the workplace, education, healthcare, and in other areas of public and social life.[25]
Additionally, the Beijing Platform for Action, recognizes sexual harassment as a form of violence against women and as a form of discrimination, and calls on multiple actors including government, employers, unions, and civil society to ensure that governments enact and enforce laws on sexual harassment and that employers develop antiharassment policies and prevention strategies.[26]
The International Covenant on Economic, Social and Cultural Rights contains several provisions particularly important for women. Article 7 recognises her right to fair conditions of work and reflects that women shall not be subjected to sexual harassment at the place of work which may vitiate working environment.
Finally, the ILO Committee of Experts on the Application of Conventions and Recommendations has confirmed that sexual harassment is a form of sex discrimination. The ILO’s Indigenous and Tribal Peoples Convention (No. 169) also specifically prohibits sexual harassment in the workplace.
Even though, the international instruments do not specifically protect women in unorganized sector against sexual harassment, it tries to provide policies and  frameworks that the Member States could adopt within their legislatures after incorporating the necessary changes based on the societal requirements. Moreover, even though India is a signatory to most of the conventions, they haven’t ratified it yet and adopted the necessary laws and policies in the country.

Comparative analysis with law in other countries:

The POSH Act like the provisions in Australia, Switzerland is inclusive as far as widening the definitions of sexual harassment, workplace, and aggrieved woman are concerned unlike countries such as Brazil where it is restricted to persons in a superior position asking for sexual favours[27] or Germany where it is not punishable by any law at all. But it lacks strict punishments such as imprisonment and large sums of fine payable, in countries such as France, Zimbabwe, and Israel.
It is unfortunate that the POSH Act does not place any obligation on the employer on the grounds of vicarious liability to give monetary compensation to the aggrieved woman. To this extent, the aggrieved woman has to approach the court for damages by the way of tort law.[28]  In the United Kingdom (UK), an employer can be held vicariously liable for the harassment by co-workers. This has been illustrated in cases such as Jones v. Tower Boot Co. Ltd.[29] and Chief Constable of Lincolshire Police v. Stubbs[30]. In the United States of America (USA) as well, the employer is vicariously liable but in defence, he/she only needs to demonstrate that immediate action was taken once the incident had come to the attention of the employer.[31]
Conclusion:
It is pertinent to note that even though there are various laws in India that try to provide a framework to protect the interests of women against such crimes, there are many loopholes existing in the existing framework. Few of them being – the laws are not implemented in all districts and there is no person to check the implementation of these laws, Furthermore, the lack of Trade Unions in the unorganized sector has reduced the bargaining power of women and assurity of women that they gain from such Trade Unions. The illiteracy and poverty rate, and the oppression of women in these sectors is increasing at a higher rate. Moreover, the issue of employer liability is an important one in sexual harassment cases. This is not addressed and followed in cases of unorganised sector.
In wake of the aforementioned problems and shortcomings of the existing laws mentioned in the previous sections, it is necessary to amend the existing laws to incorporate a stronger framework and probably a new law to address the problems of asexual harassment against women in the unorganised sector. The international instruments should be adopted after making necessary changes and the concept of compensating the victims must be introduced. The women in this sector has be educated with the rights that are provided to them under the existing laws and they should be aware of the legal remedy they can avail in case of violation of such rights.

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[1] The Unorganized Workers’ Social Security Act, No. 33 of 2008, § 2(f).


[2] MINISTRY OF LABOUR AND EMPLOYMENT, WORKFORCE IN ORGANISED/ UNORGANISED SECTOR, ANNUAL REPORT – 2018-2019, https://labour.gov.in/sites/default/files/Final_AR_English_21-7-19.pdf

[3] MINISTRY OF LABOUR AND EMPLOYMENT, WORKFORCE IN ORGANISED/ UNORGANISED SECTOR, https://pib.gov.in/newsite/PrintRelease.aspx?relid=147634 (2016)

[4]MINISTRY OF FINANCE , ECONOMIC SURVEY – 2018-2019, VOLUME 1, https://www.thehinducentre.com/resources/article28283388.ece/binary/Economic%20Survey%20Volume%20I%20Complete%20PDF.pdf (2019).

[5] supra note 3, at 6.

[6] 35 Singh Mohinder, Women and Development Process in India, Khadi Gramodyog (January 1989).

[7] 4 Anushka Ambil, Sexual Harassment at Workplace in Unorganised Sector, JISR 28 (2018).

[8] State of Punjab v. Ramdev Singh, Criminal Appeal no. 547 of 1997 (S.C.) (India).

[9] (1997) 6 SCC 241 (India).

[10] INDIA CONST. art. 14.

[11] INDIA CONST. art. 15.

[12] INDIA CONST. art. 21.

[13] supra note 9.

[14] Diva Devarsha, Implementation of Vishaka Guidelines: Post Vishaka Judgement, Indian J.L. & Pub. Pol’y 104 (2014).

[15] supra note 9.

[16] The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, No. 14 of 2013, Preamble.

[17] The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, No. 14
of 2013, § 2, cl. o.

[18] Donna Fernandes, 17% women sexually harassed at workplace, TIMES OF INDIA, (February 26, 2020, 11:38 P.M.), https://timesofindia.indiatimes.com/city/bengaluru/17-women-sexually-harassed-at-workplace/articleshow/17396157.cms.

[19] IWRAW ASIA PACIFIC OCCASIONAL PAPERS SERIES 7, pg no. 16.

[20] PEN. CODE, § 354.

[21] PEN. CODE, § 509.

[22] supra note 1, at Objectives.

[23] Domestic Workers (Registration, Social Security and Welfare), Act no. 16 of 2008, § 23.

[24] http://www.un.org/documents/ga/res/48/a48r104.htm

[25] http://www.un.org/womenwatch/daw/cedaw/cedaw.htm

[26] http://www.un.org/womenwatch/daw/beijing/platform/

[27] UNGENDER, ENSURING DIVERSITY AND INCLUSIVITY THROUGH LEGAL COMPLIANCE, at https://www.ungender.in/single-post/Sexual-Harassment-workplace-laws-across-the-world

[28] INDIRA JAISING, SEXUAL HARASSMENT AT WORKPLACE 14 (Universal Law Publishing Co. Pvt. Ltd. eds., 2014).

[29] 1997 ICR 254.

[30] 1999 IRLR 81.

[31] Id.

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