Published Date : 09 July 2019 | Neha Goyal
Sexual harassment is an act of humiliating a person on the basis of his or her sex. It contains acts and gestures targeting his/ her sex, which can have physical, mental, emotional and psychological effects on a person’s being.
As was defined by the Criminal Law (Amendment) Act, 2013 which amended the Indian Penal Code, 1860, sexual harassment includes any unwelcome acts and behavior, demand for sexual favors, showing pornography or making sexually colored remarks. Sexual harassment can happen in any form and at any place, resulting in the creation of a hostile environment wherein the victim finds it extremely challenging to continue under those circumstances and follow his or her normal course of routine.
Since we are talking about the sexual harassment in the Indian setting, it is punishable only when it is committed against a woman. The offences against women may include any act, ranging from a trivial joke or gesture to acts as grave as rape. After the amendment of 2013, offences like disrobing a woman, voyeurism, stalking etc. have also been specifically criminalized with the intent to put a halt on the ever increasing crimes against women.But we cannot deny the fact that we are living in a society which is continuously heading towards sexual perversion. Despite having such a wide coverage of offences of sexual harassment against women under Indian laws, we have failed terribly to achieve any satisfactory result.
In a society like that of India, where patriarchy has been the norm and the rights of women, an exception, women are still struggling to attain a position equal to men. A large chunk of the society still denies even the basic rights to women, despite the fact that all men and women have been conferred equal rights under the Constitution of India.
Till date, most women are not permitted to step out of their homes and work and unfortunately, the ones who are allowed to do so, face sexual harassment at every stage.In fact, the problem regarding sexual harassment faced by women at their workplacewas first addressed by the system in 1997, when an organization named ‘Vishakha’ decided to fight for the rights of women against the atrocities committed upon them.
In 1997, the Supreme Courtaddressed the issue in Vishakha v. State of Rajasthan and defined the term ‘sexual harassment’ as any sexual act or behavior committed, directly or indirectly, in the form of:
Sexually colored remarks
Physical interactions and advances;
A demand or wish for sexual favors;
Any other physical, verbal/non-verbal behavior being sexual in nature.
The famous “Vishakha guidelines” issued by the Supreme Court had emanated from the Convention on the Elimination of all forms of Discrimination against Women (CEDAW) and the Constitution of India. These guidelines focused on sexual harassment at workplace and prescribed an internal mechanism that should be followed by all employers while dealing with sexual harassment complaints at their place of work.
Before the issuance of the Vishakha guidelines, women in India had recourse only through the criminal provisions ofSections 354 and 509 of the Indian Penal Code, 1860. These provisions deal with outraging and insulting the modesty of a woman provided that the perpetrator had the intention or knowledge to do so. These provisions however, due totheirvague definitions and the requirement of mens rea, failed to prove to be efficient in dealing with sexual harassment committed against women, especially at their work place.
Therefore, over the decades, numerous legislations have been enacted to control and prevent crimes against women and provide a safer environmentfor the women to live in. One of the main legislations that have been enacted is The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“the POSH Act”).
RELEVANT PROVISIONS OF THE ‘POSH’ ACT
This Act provides for a mechanism to redress the complaints of sexual harassment at workplace. While the Vishakha Guidelines defined the workplace in a limited sense, this Act has widened the definition of workplace to include any kind of organizations, institutions, departments, offices, undertaking, local authorities, dwelling places, hospitals, sports complexes etc. in public and private sectors and also includes all such places where employees go for their work. The Act also addresses the problems of women working in the unorganized sector.
Under the Act, in every office having 10 or more employees, the employer is required to constitute an Internal Committee to look into the sexual harassment complaints.Other than that the District Officer is required to constitute a Local Committee to receive the complaints from the establishments having less than 10 employees or where the complaint is against the employer himself.
Such committees are required to complete their inquiry within 90 days of the receipt of the complaint. The report has to be forwarded to the District Officer or the Employer, as the case may be, who in turn has to mandatorily take actions on the recommendations made by the committee within 60 days. Penalty has also been prescribed for the employers in case of non-compliance.
Howsoever good a law seems to be,problems are often faced with the implementation of even such ‘good’ laws. The problems regarding implementation of laws are a constant issue and not much heed is paid by the system or the society to address them.
However, for the POSH Act specifically, improper implementation is not the sole problem which needs to be addressed. On mere perusal of the Act, one can easily arrive at the conclusion that the Act lapses on a very inherent ground. The Act fails to assign accountability which would be sufficient to deliver justice and can actually have a deterrent effect. Who is to be held responsible for non-compliance of the provisions of the Act? Who will ensure such compliances? These are certain questions which the legislature has not considered yet and require immediate solution.
Mere defining of the law and prescribing the punishments for its non-compliance do not make a law effective in its true sense. The idea of enacting a particular legislation is not just to punish the offenders but also to prevent the violation of that law and deliver justice. With specific regard to the POSH Act, this can be done only when a body is authorized and under obligation to ensure the compliance of the provisions of this Act. Therefore, the legislature should consider an amendment to address these lapses and incorporate a mechanism that will aid proper implementationof theseexisting laws.
One more pertinent question that arises here is- how effective these laws are and have they really helped us in bringing down the crimes against women? Sections like 354 and 509 have always been there, but has anything changed after the introduction of the POSH Act? To an utter shock, since the enactment of the Act till March 2019, only 23 judgments have been delivered under the Act across the country.
To understand the possible reasons of such a low number of disposals and the impact of not having a proper prescribed mechanism for accountability and implementation, we can take the instance of the recent complaint of sexual harassment against the CJI Ranjan Gogoi.
CJI SEXUAL HARASSMENT CASE
A former employee who used to work in the office of CJI had complained of being sexually harassed by the CJI. But the manner in which the matter was dealt with by the highest judicial institution of the country is confounding. After the online media portals published the news, a bench was convened with CJI RanjanGogoi himself being a member of the bench, clearly violating the principles of natural justice.
Then again, despite having a central law in place, an In-House committee was formed to deal with the matter.Instead of forwarding the complaint to the Internal Committee of the Supreme Court, matter was referred to an In-House Committee which was not the best possible way to deal with the complaint.
The Complainant had also claimed that neither was she allowed to be present during the proceedings nor was she supplied with the copy of the report. And therefore, she had no way of finding out the reasons as to why her complaint was dismissed by the panel.
The in-house procedure followed by the Supreme Court in this case has failed to stand up to the expectations of a prudent man. Had the Complainant been allowed to attend all the proceedings and get legal help, the findings of the committee could have been such so as to not thereby weaken the faith of people in judiciary.
Being the complainant, she hadthe absolute right to know about the evidences which were examined during the proceedings. She should have been supplied with the reasons as to why the committee did not find any ‘substance’ in her complaint. By following this skewed procedure, committee has shown a great abuse of the due process of law and has weakened the faith of the common man in the judicial system.
The CJI Harassment case is just an example which has come in the limelight due to the involvement of the Chief Justice of India. But these issues are something which almost every female experiences in some way or the other at least once in her life. Even after cases like Maneka Gandhi v. Union of India and Vishakha v. State of Rajasthan, women in India are still fighting for their basic rights; rights which are as personal and basic as bodily integrity and modesty of a woman.
It is high time weaddress the existing discrepancies in order to focus on the proper implementation of these laws. We must not ignore the fact that when an aggrieved womancomes forward and approaches the authorities, she does so as a matter of right. But continued harassment by authorities at subsequent stages is one of the major reasons that women in India are still a disadvantaged group of the society. Whatever be the laws and the attitude of society and authorities, howsoever be the implementation, we still have a long way to go and the end does not seem to be near.
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
Vishakha v. State of Rajasthan, AIR 1997 SC 3011.
Maneka Gandhi v. Union of India, AIR 1978 SC 597.