‘Law against sexual harassment at work’

  • Category
    Polity & Governance
  • Published
    28th Jan, 2020

Issue

Context

The Group of Ministers (GoM), constituted in the aftermath of the #MeToo movement after many women shared their ordeal on social media, has finalised its recommendations.

Background:

  • The Group of Ministers (GoM) was constituted first in 2018in the aftermath of the #MeToo movement after many women shared their ordeal on social media.
  • It was reconstituted in July 2019under Home Minister Amit Shah.
  • The other members of the GoM are Finance Minister Nirmala Sitharaman, Human Resource and Development Minister Ramesh Pokhriyal and Women and Child Development Minister Smriti Irani.
  • The GoM also examined the report of the Justice J.S. Verma Committeethat was constituted in the wake of the Nirbhaya gang-rape and murder in 2012.
  • The Verma committee had recommended an employment tribunal, instead of an ICC, as dealing with such complaints in-house could discourage women from coming out.

What is in the box?

  • The recommendations include the addition of new provisions to the Indian Penal Code.
  • The proposed amendments would be largely based on the Vishaka Guidelines laid down by the Supreme Court in 1997, on which the 2013 Actwas based.
  • It made the employer responsible to prevent or deter acts of sexual harassment at the workplace.
  • The 2013 Act had shortcomings like giving the powers of a civil court to the internal complaints committee (ICC) without specifying if the members need to have a legal background.
  • It only imposed a fine of ?50,000 on employers for non-compliance.
  • The Act said the employer shall provide assistance to the woman if she chooses to file a complaint under the IPC “against the perpetrator after the conclusion of the enquiry”.

Analysis

What is sexual harassment?

  • Workplace sexual harassment is a form of gender discrimination which violates a woman’s fundamental right to equality and right to life, guaranteed under Articles 14, 15 and 21 of the Constitution of India.
  • As per the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013, any of the following circumstances, if it occurs or is present in relation to or connected with any act or behaviour of sexual harassment may amount to sexual harassment:
    • implied or explicit promise of preferential treatment in her employment
    • implied or explicit threat of detrimental treatment in her employment
    • Interferes with her work or creating an intimidating or offensive or hostile work environment for her
    • Humiliating treatment likely to affect her health or safety
  • This is further reinforced by the UN Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), which is signed and ratified by India.

Statistical Overview of Sexual Harassment:

  • As per the National Crime Records Bureau (NCRB), the number of sexual harassment incidents at work or office premises registered under Section 509 IPC (words, gesture or act to insult the modesty of a woman) were 479 and 401 in the years 2017 and 2018 respectively.
  • Among the cities, the highest number of such cases were registered in Delhi (28), Bengaluru (20), Pune (12) and Mumbai (12) in 2018.
  • The total number of sexual harassment incidents in 2018including that in public places, shelter homes and others was 20,962.

Laws against sexual harassment:

  • India’s first legislation specifically addressing the issue of workplace sexual harassment; the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”) was enacted by the Ministry of Women and Child Development.
  • The Act seeks to cover all women (irrespective of their age or employment status) and protect them against sexual harassment at all workplaces both in public and private sector, whether organized or unorganized.
  • It makes it mandatory for all workplaces, including homes, universities, hospitals, government and non-government offices, factories, other formal and informal workplaces to constitute an internal committee for redressal of complaints.
  • Section 354A of the Indian Penal Code (IPC) deals with offences related to sexual harassment, which includesphysical contact, unwelcome and explicit sexual overtures, demand or request for sexual favours, showing pornography to a woman against her will and making sexually coloured remarks.

Vishaka Guidelines:

  • The elimination of gender-based discrimination has been one of the fundamentals of the Constitutional edifice of India.
  • The principle of gender equality is enshrined in the Constitution, in its Preamble, fundamental rights, fundamental duties and Directive Principles.
  • However, workplace sexual harassment in India was for the very first time recognized by the Supreme Court of India in its landmark judgment of Vishaka v. State of Rajasthan (“Vishaka Judgment”).
  • As per the Vishaka judgment, ‘Sexual Harassment’ includes such 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
    • Any other unwelcome physical, verbal or nonverbal conduct of sexual nature.
  • It proposed that sexual harassment is recognized as a violation of women's fundamental right to equality and that all workplaces/establishments/institutions be made accountable and responsible to uphold these rights.

International legislative frameworks:

The following standards and frameworks include key contents on promoting equality and addressing sexual harassment:

  • Universal Declaration of Human Rights, 1948
  • ILO Discrimination (Employment and Occupation) Convention, 1958
  • International Covenant on Economic, Social and Cultural Rights, 1966
  • United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), 1979
  • ILO Indigenous and Tribal Peoples Convention, 1989
  • ILO Decent Work for Domestic Workers Convention, 2011
  • UN Declaration on the Elimination of Violence against Women, 1993
  • The Beijing Platform of Action, 1995
  • ILO HIV and AIDS Recommendation, 2010

How does sexual harassment impact the nation?

  • The impact of sexual harassment at the workplace is far-reaching and is an injury to the equal right of women.
  • Workplace sexual harassment not only creates an insecure and hostile working environment for women but also impedes their ability to deliver in today’s competing world.
  • Apart from interfering with their performance at work, it also adversely affects their social and economic growth and puts them through physical and emotional suffering.

Recent initiatives by Government to control harassment:

  • SHe-Box: The ministry of women and child development has set up what it calls the Sexual Harassment electronic–Box (SHe-Box), an online complaint system for registration of complaints related to sexual harassment at workplace. This can be used by employees of the government and private sectors.
  • Dedicated committee: Union Ministry for Women and Child Development announced the formation of a committee consisting of four retired judges to conduct public hearings of cases of arising from the #MeToo movement in 2018.

Conclusion:

Despite the horrors of Nirbhaya and the anti-rape laws, it is still a frightening reality that complainants continue to suffer victim-blaming, humiliation and distrust at police stations. Without a robust mechanism in place, things cannot be improved. The Government must work towards

X

© 2020 Basix Education Pvt. Ltd. All Rights Reserved