Lagan Singh, New Law College, Bharati Vidyapeeth Pune (Maharashtra)
Abstract
Women and children are known to be the most deprived and vulnerable sections of society. The common problem that has been faced by these sections, especially women is the problem of sexual harassment. What is sexual harassment, let’s say, you are working or in school or college, studying and one of your superiors, coworkers, or classmates comes to you and passes insulting remarks on you or asks you for sexual favors or any such other act that is sexual and makes you uncomfortable then it is considered sexual harassment. The main ingredients of sexual harassment are asking for sexual favors, making uncomfortable remarks about women, remarks about a woman’s body or her character, unwanted touch, etc. This case which is Vishakha v. State of Rajasthan is a landmark case about sexual harassment of women in the place of their work, this is the case of 1997, in the judgment of this case some guidelines were given which are called Vishakha guidelines but these were only the guidelines, guidelines are generally read and most of the times they are not considered of any value, they are read and ignored, it was high time for the Indian society to be governed by separate provisions for sexual harassment at workplace, finally in 2013 the Sexual Harassment of Women at Workplace( Prohibition, Prevention, and Redressal) Act, 2013 was passed, it is also called the Sexual Harassment Act. This is the first act that deals with the issue of sexual harassment in the workplace in India. There were a few laws that were given by the Indian Penal Code and the Constitution against sexual harassment but they were never about sexual harassment at the workplace, they talked about sexual harassment in general, and they were not very wide, this must be because they were old and at that time less number of women were working but after the society grew and women started to work, cases of sexual harassment were seen and then the case of Vishakha came out, it represented woman’s safety that is needed at the workplace, some of the wild beasts won’t let women survive peacefully even at the workplace, a law has to be made to get control of those beasts. It was already a struggle for women to go out and study, if parents did send their daughters to become something, then they should be allowed to live freely and independently without any harassment, and this law provides them that much-needed independence.
Vishakha v. State of Rajasthan
It has been made well known what this case is about, it is a really important case in terms of a woman’s safety at her workplace, its facts, issues, and judgment have to be understood to understand the whole concept of safety against sexual harassment at the workplace. Here are the facts of this case:-
Facts
There was a Bhanwari Devi, she was a social worker in Rajasthan. She was working against child marriages. One day she got to know about a child marriage that had been taking place in a renounced Gujjar family of the village, she went there and tried to stop that marriage, she wasn’t being heard but somehow she was successful in stopping that marriage. She did a great job but this nice job came with a huge and evil price that she had to pay, the head of that Gujjar family and his four friends came to her house and gang-raped her in front of her husband, although this case became the pillar of safety at the workplace for women, it came with a horrible price that Bhanwari Devi had to pay. Later after the horrible incident Bhanwari Devi went to the police station but was humiliated there and wasn’t heard, she went further but the trial court also held that the case was not of rape and there was a lack of evidence against the five accused, the case was dismissed but Bhanwari Devi was a fighter, she didn’t stop, she went further and filed a writ petition along with her friend, many NGOs also came to stand in her favor and a PIL was also field. Finally, the high court gave a remarkable judgment that changed many women’s lives. The efforts of Bhanwari Devi were not in vain, she won, and she got the justice that she deserved, this also led to belief in the justice system of our country, yes it was indeed corrupt at a smaller level but after a few efforts, justice was finally served. This case also says that the justice system needs to be improved and has to become free of corruption, which I think it has improved since then.
Issues
- Violation of fundamental rights of women by sexual harassment at the workplace (articles 14, 15, 19 (1) (g) and 21 of the Constitution)?
- Should there be formal guidelines for sexual harassment in the workplace?
Judgment
The Supreme Court of India, in this case, held that sexual harassment at the place of work leads to the violation of fundamental rights of a woman which are article 14, right to equality, article 15, discrimination on the grounds of caste, religion, gender, place of birth and race, article 19 ( 1 ) ( g ), right to practice any profession and business to every person, article 21, right to life and personal liberty. It also said that the definition of sexual harassment includes unwanted physical touch, asking for sexual favors, and showing pornography. Vishakha guidelines were also established.
Vishakha guidelines
- Definition of sexual harassment includes showing pornography, asking for sexual favors, unwanted and unnecessary physical touch, and other sexual remarks.
- An employer and other top-level management are responsible for stopping and preventing such acts, they should not let these kinds of acts happen in the workplace, it is their responsibility to stop such acts.
- There should be a committee for such acts to be prevented and the head of that committee should be a woman, an NGO shall also be included in such a committee so that there is no discrimination, biasedness, and forcefulness in preventing justice by the upper management.
- Notifications and suppliers should be circulated in the organization regarding sexual harassment and the safety of women and penalties should also be given for such acts.
- Meetings of employers and employees should be held from time to time, related to sexual harassment.
- If such kinds of acts occur in the workplace then reformative steps must be taken by the employer or other upper level management. Punishment shall be provided to the offender.
Sexual Harassment of Woman at Workplace (Prohibition, Prevention and Redressal) Act, 2013
This act is reformative for society and their perspective on sexual harassment in the workplace, this act came after 17 years of Vishakha the eyes of our legal system opened too late. It is also known as the POSH (Prevention of Sexual Harassment) Act, Vishakha guidelines became the basic framework of this act. Without further ado, here are some important points of this act:-
- This act says that the term ‘woman’ includes every woman irrespective of their age and the term ‘workplace’ includes private, public, organized, and unorganized places of work.
- This act said that in every organization an Internal Complaints Committee ( ICC ) shall be formed.
- ICC shall consist of a female head member, two other members, and an officer from outside so that a check on influence from the management can be kept.
- There should be a Local Complaints Committee (LCC) in organizations with less than 10 members, this committee is generally for unorganized sectors, and it is mandatory to be established (section 6).
- Some powers such as of Civil Courts are given to these committees under the Code of Civil Procedure.
- On the request of the aggrieved woman, there can be a settlement between the parties by the committees.
- If there is no such request then an inquiry will take place, if it is established that it is indeed a case of sexual harassment then the committees will present their findings to the nearest police station. Once the report is made, it shall be submitted to the district officer and the employer.
- If an organization or any other workplace does not stick to the provisions of this act then a fine of up to 50,000 and penalties are given and time limits for inquiry and redressal are also provided by this act.
Other laws on sexual harassment
Some provisions deal with the offense of sexual harassment, not at the workplace but sexual harassment in general, these provisions will not be in detail but will only be mentioned to get an idea of other laws that were there before this landmark case.
- Under IPC, 1860
- Section 294 – This section is related to doing obscene acts in a public place, obscene acts can include many things like singing dirty songs, flashing oneself, etc. It has a punishment of 3 months or a fine or both.
- Section 394 – This section is related to outraging the modesty of women, if a person does any act which he knows will outrage the woman’s modesty by using criminal force or assault. Punishable for imprisonment which may extend to two years or fine or both.
- Section 354 (A) – This particular section of IPC deals with sexual harassment which is done by any unwanted, nonconsensual physical touch, demand for sex, and other acts that are uncomfortable to a woman, showing of pornography without the consent of a woman. It has a punishment of 1- 3 years or a fine or both.
- Section 354 (B) – when someone asks a woman to undress then it is considered sexual harassment, a woman shall be forced to undress for punishment under this section.
- Section 354 (C) – when a man captures a woman engaged in her private activity, without her consent then it is punishable. This act is called voyeurism.
- Section 354 (D) – This particular section deals with the offense of stalking, it is punishable by imprisonment which may extend to three to five years and the offender shall also be liable to a fine.
- Section 375 – This section of the IPC deals with rape and its punishment is given under section 376, after Nirbhaya’s case many amendments came in this section, the definition of rape was given a wider scope and many punishments were added.
- Section 509 – This section of IPC deals with insulting the modesty of women, if a person does any act or utters any word that he intends the woman to hear or see the act, by such words or act he knows that woman’s modesty will be outraged.
- Under the Constitution of India
- Article 14 –This article of the Indian Constitution deals with the right to equality before the law. It means every woman or any person who has been harassed can go to get justice, they will not be denied and will be treated equally.
- Article 15 – This article of the Indian Constitution deals with discrimination on the grounds of caste, religion, race, place of birth, and gender. No woman will be discriminated against for getting justice against sexual harassment.
- Article 19 – This article of the Constitution deals with the freedom of speech and expression.
- Article 21 – This article says that no person shall be deprived of life and personal liberty.
- Information and Technology Act, 2000
- Section 66E – When a person captures a woman engaged in her private activity without her consent and shares this with others then it is punishable for 3 years and shall also be liable to a fine.
- Section 67A – This section of this act deals with sharing or transmitting explicit material online. The punishment is 5 years imprisonment and they shall also be liable to fine.
- Indecent Representation of Women (Prohibition) Act, 1986
Under this act, a person will be punished for indecently representing a woman by way of writing, printing, and portraying a woman’s body, etc.
Sexual harassment at workplace: case analysis
These were some other provisions that were already present in India for sexual harassment, but after this case of Vishakha, there was more seriousness in India about sexual harassment, this case practically reformed the society and its perspective on sexual harassment.
Conclusion
Vishakha v. State of Rajasthan is a reformative case for Indian society, before this, there were no laws for sexual harassment in the workplace, it is definite that women were being harassed at work before this case too but there was no seriousness in the legal system, there were some laws as discussed above but they were just a formality and were not applied properly but after the Sexual Harassment at Workplace ( Prevention, Prohibition and Redressal ) Act, 2013 major changes could be seen, there is more seriousness and sincerity about sexual harassment at workplace and sexual harassment in general. One thing that is negligent on the part of our legal system is that this act came way after the Vishakha case, around 15 to 16 years later, this was a severe case but in the judgment, only some guidelines were given there was no separate act, the act only came in 2013, it took the help of Vishakha guidelines, it indeed takes time to make any act but 15 to 16 years is too much time, the act should have been made at the time of this case, the legal system totally undermined and ignored the issue of sexual harassment at workplace and only opened its eyes in 2013.
