Research| Article| Social Issue & Law
Written By- Dr. Navpreet Kaur (Lawyer & Social worker)
Bridging Gender Equality: Prevention of Sexual Harassment at Workplace
How does gender inequality affect multiple facets of women’s life?
Table of Contents
Introduction:
India continues to struggle with gender inequality, which poses significant challenges to women’s rights and safety, particularly in the workplace. This research article delves into the complex issue of gender inequality in India, with a focus on sexual harassment at work. It examines the historical, social, and legal factors contributing to this issue. It highlights the serious consequences of son preference, such as female foeticide, as well as violent attacks on women, such as acid attacks.
The article also examines legislative improvements, including the Vishaka guidelines and the Sexual Harassment at Workplace (Prevention, Prohibition, and Redressal) Act of 2013 (POSH Act), and assesses the effectiveness of these measures in creating safer work environments.
Additionally, the study emphasizes the importance of cultural change, education, and initiatives to empower women, in challenging stereotypes and biases. It concludes by calling for collective action to dismantle gender inequality and promote inclusive workplaces where everyone can thrive without fear or discrimination.
The Devastating Consequences and Call for Change”
Gender inequality is a pervasive issue in many societies. In Asia, this is exemplified by the prevalence of son preference, which has led to the practice of female foeticide on a massive scale. Girls are discriminated against even before birth, with many cultures viewing the birth of a baby girl as a curse rather than a blessing. This has resulted in the illegal termination of female fetuses, solely due to their gender. Such practices have been reported to be rampant in India. Over and above, often a mother is also punished for giving birth to a girl child.
“The consequences of such gender bias are devastating. In one incident, an Indian teen from Bulandhshahr, Uttar Pradesh wrote a letter to then Chief Minister Akhilesh Yadav with her own blood. The girl demanded justice for her mother who was burnt alive by his father only because she did not give birth to a son.
During the trial of this case, the girl recounted in court how they had grown up seeing their father and his family often taunt and assault their mother for giving birth only to daughters. Their mother had been forced to undergo six abortions after illegal sex determination tests showed that she was pregnant with a girl child. In another chilling reminder of women’s low social status, a man in Patiala district in the state of Punjab threw acid on his wife as she had delivered two daughters while he wanted a son in April 2021.“
“Breaking the Chains of Gender-Based Violence: The Tragic Tale of Preeti Rathi”
Discrimination against women and girls has been a widespread issue throughout human history. The dominance of men has always played a significant role in suppressing women’s rights and limiting their opportunities. However, women are breaking free from these chains and achieving success in various fields.
Unfortunately, some men cannot tolerate women’s success and resort to extreme measures like acid attacks. It’s time for all of us to come together and fight against this toxic male ego that harms women.
In the case of Preeti Rathi, a 23-year-old Delhi Resident who was attacked by her neighbor (Ankur Panwar) out of jealousy. Ankur, who has a diploma in catering was then unemployed, while Preeti had just got a job at the Army Medical College as a nurse. Out of jealousy and anger, Ankur decided to disfigure her and he attacked her in a brutal manner by throwing acid on her. After battling for her life for a month, Rathi succumbed to her injuries on June 1, 2013.
Sexual Harassment at Workplace
Is it possible to imagine a world free of bias, stereotypes, and discrimination- a world that’s diverse, equitable, and inclusive, a world where difference is valued and celebrated?
Today’s Indian women are more literate and educated than ever before. They’re enrolling in schools and colleges in greater numbers and staying in school longer than previous generations did. They are Indian also entering the country’s workforce today. However, women are still facing issues because of male domination. Many of them could not work comfortably because of sexual harassment in the workplace.
Sexual harassment constitutes a gross violation of women’s right to equality and dignity. It has its roots in patriarchy and its attendant perception that men are superior to women and that some forms of violence against women are acceptable. One of these is workplace sexual harassment, which views various forms of such harassment, as harmless and trivial. Often, it is excused as ‘natural’ male behavior or ‘harmless flirtation’ that women enjoy. Contrary to these perceptions, it causes serious harm and is also a strong manifestation of sex discrimination in the workplace.
Sexual harassment is a universal issue that negatively impacts both men and women. However, studies suggest that women are more likely to experience sexual harassment in the workplace. The #MeToo movement has brought this issue to light. In India, women often have to work harder than men to gain recognition.
A Focus on Legal Reform and Supreme Court’s Intervention”
The Constitution of India has made significant strides towards gender equality, freedom, and dignity for women. However, despite various provisions and protective laws, the status of women in society remains a concern. Criminality amongst women has increased, but the fear, insecurity, and helplessness felt by women in reporting such incidents remain. To eliminate gender inequality, solutions need to be inclusive.
Recently, The Honourable Supreme Court of India delivered a notable judgment in Aureliano Fernandes v. State of Goa & Ors highlighting “serious lapses” in the effective administration of the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013. The Supreme Court gave directions to the concerned authorities to ensure that the ministries, departments, and other organizations strictly comply with the act in a time-bound manner.
Bhanwari Devi to Vishakha guidelines
The case of sexual harassment led to India’s sexual harassment law.
Sexual Harassment is the unwanted behavior exhibited by someone, irrespective of gender which is of a sexual kind that makes an individual feel uncomfortable and humiliated. Now let’s talk about how these sexual harassments take place and what type of impact they can make.
It is when someone, calls you in a sexual way and spreads rumors about you such as commenting on your body type; creating a bad and unfriendly environment around you. Sexual harassment can happen in front of someone, over a phone call, or maybe over an online medium. This type of behavior can create a hostile and uncomfortable work environment that can lead to serious emotional and mental health issues. It’s important to recognize and address sexual harassment to create a safe and respectful workplace.
Earlier there was not a specific criminal law on sexual harassment in the workplace. However, there were few protections provided by the IPC, 1860 under sections 294, 354, and 509 relating to obscene acts and songs, assault, criminal force, and use of words and gestures outraging a woman’s modesty. However, the interpretation of whether it is sexual harassment or not in such sections was left at the discretion of the police officer.
Bhanwari Devi Case
In the 1990s, the brutal gang rape of a social worker – Bhanwari Devi made an outcry in the society. Bhanwari Devi worked with the Rajasthan government and helped in the Women’s Development Programme by campaigning against social ills such as child marriage, female foeticide, infanticide, hygiene, and dowry.
She was allegedly gang-raped by five men from the upper-class community while trying to stop child marriage in her village. Her subsequent complaint to the police station was not thoroughly investigated, setting a precedent for the lack of protection of women against sexual harassment in the workplace. While Devi made her rape public, she was laid the blame of lying.
Even the police mocked her and did not take the case seriously. The medical test was done 52 hours later and her bruises and scratches were not recorded nor was her physical pain taken into account.
(Victim blaming is a pervasive problem that extends beyond media and courtrooms. It affects survivors and makes it harder for them to come forward and report abuse. Sadly, victim-blaming by police, judges, and politicians directly influences the lack of legal redress for female victims of violence.
Even with years of feminist activism aimed at legal reform, India still struggles with a culture of blaming the victim and widespread tolerance for violence against women. Judges have even made derogatory comments about rape victims, perpetuating a culture of victim blaming.
Is there a ‘normative behavior’ for a sexual assault victim? This question arises as a judge recently remarked (Tarun Tejpal’s case 2021), that a complainant’s behavior was not indicative of sexual assault. According to the judge, she did not display any ‘normative behavior’ that a victim of sexual assault might plausibly show.
However, it is essential to note that there is no ‘normative behavior’ for a victim of sexual assault. Such thinking could lead to the wrong application of the law on sexual crimes and violation of many Supreme Court directives.)
The Landmark Vishaka Case: Paving the Way for Safer Workplaces and Gender Equality”
In Bhanwari Devi’s case, accused men were arrested a year after the crime was committed. However, over the years of trial and change of judges, in November 1995, the accused were acquitted of rape and instead found guilty of lesser offenses and imprisoned for 9 months. The acquittal of the accused and their conviction for lesser offenses sparked global outrage.
The judgment was considered politically motivated and not in line with natural justice. However, an NGO named Vishakha filed a PIL in the Supreme Court of India, demanding that employers protect women employees and make workspaces safe. It’s a reminder that we must continue to fight for gender equality and safety for all.
A number of questions were determined through this landmark case in the context of sexual harassment which takes place at a workplace. The issue arose as to whether the employer has any responsibility in cases of sexual harassment by its employees or to its employees at a workplace.
Finally, in 1997, in the case of Vishaka and Others versus the State of Rajasthan (AIR 1997 SC 3011), the Supreme Court defined “sexual harassment” and held that a woman has a fundamental right to work in an atmosphere free from “sexual harassment”. Read related articles at https://knowlaw.in/index.php/2022/05/01/bhanwari-devi-gang-rape-case-birthing-of-the-vishakha-guidelines/
Supreme Court acknowledgement
- Sexual harassment in the workplace is a human rights violation
- Sexual harassment is a violation of the constitutionally guaranteed fundamental rights: Articles 14 and 15(Right to equality); Article 21(Right to life & to live with dignity); Article19 (1) (g) ( Right to practice any profession/trade/occupation/business, i.e., a right to a safe environment free from harassment).
This landmark case highlights the importance of creating a safe and inclusive work environment for all individuals, regardless of their caste, class, or gender. It also laid down norms that made the head of the institution, whether public or private, responsible for scrutinizing “sexual harassment” in the workspace.
Based on this revolutionary judgment, 16 years later, the “Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act, 2013” was sanctioned by the Ministry of Women and Child Development.
Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act)
The Act truly justifies the significance of Articles 14, 15, 19(1)(g) and 21 of the Indian Constitution providing an environment free of gender discrimination with the support of the “Criminal Law (Amendment) Act of 2013”. This Act is in furtherance of Article 11 of CEDAW as it preserves women’s Constitutional rights.
POSH Act outlines an ‘aggrieved woman’ as a woman, of any age, whether she is employed or not, who alleges that she has been subjected to any act of “sexual harassment” by the respondent.
Under the POSH Act, an ’employee’ is defined as anyone employed at a workplace, whether for regular, temporary, or ad hoc work, with or without remuneration. This includes domestic workers too. One of the most interesting features of this Act is the concept of the “extended workplace,” which includes any place visited by the employer during the course of employment, including transportation.
Groups of Sexual Harassment
Visual -Verbal –Written- Physical
According to the provision of the POSH Act “sexual harassment” includes any one or more of the following unwelcome acts or behavior (whether directly or by implication) namely: –
- Physical contact and advances; or
- Demand or request for sexual favors; or
- Making sexually colored remarks; or
(iv) The Showing of pornography; or
(v) Any other unwelcome physical, verbal, or non-verbal conduct of a sexual nature.
Sexual Harassment of Women at Workplace Act (POSH Act) broadly classifies sexual harassment into two categories:
- Hostile work environment: Behaviour, action, or communication is considered hostile when unwelcome, sexually explicit, pervasive, severe, intimidating, or offensive, and hampers work performance. Pervasive behavior is repeated and can affect the employee’s readiness and performance. When severe, it can lead to emotional disturbances, stress, anxiety, and more. Any person in the organization can create a hostile work environment.
- Quid pro quo: Quid pro quo is a Latin term that loosely translates to “this for that”. In this form of sexual harassment, the harasser must have some form of supervisory authority over the harasser. This is because the underlying idea of quid pro quo is that an employment benefit is given in exchange for sexual favors.
What POSH Act. provides against sexual harassment?
Under the POSH Act, Employers have a duty to prevent sexual harassment in the workplace. The Act provides for the constitution of Complaints Committees, Internal Committees (IC), and Local Committees (LC). The IC can be established in organizations that have more than 10 employees. Complaints of organizations having less than 10 employees are directed to the LC. The law requires the formation of a complaint committee at all workplaces, headed by a woman employee and with NGO or third-party participation.
Half of the committee members should be women, and all complaints regarding sexual harassment must be dealt with by this committee. The committee will advise and recommend to the victim for the further course of action.
However, the composition of the Committees does not mandate the presence of any member from a legal background. The use of the term ‘preferably’ in Section 4(2)(b) of the sexual harassment at Workplace Act implies that it is at the discretion of the employer whether to appoint a member with legal knowledge or not.
On the other hand, under the POSH Act, Domestic committees with no legal experts being vested with the same powers as a Civil Court for conducting inquiries is a matter of concern. The need for at least one legal expert on the committee is a stern requirement.
Additionally, Section 6 of the Act lacks clarity regarding the jurisdiction of the LC. The provision of submitting a written complaint may not be feasible for every distressed woman who may not be literate enough to file a complaint. An amendment to allow for oral complaints to the concerned authority should be considered.
Section 10 talks about conciliation as a pre-step.Before starting an inquiry between the aggrieved and respondent, the conciliation process seems to be against the purpose of the Act which talks about redressal of the complaint. Penalizing a woman on account of a malicious complaint and false evidence is another major anomaly. This provision can be abused and must be deleted. Unless the failings of this Act are overcome, it is difficult to say that the provisions will have full impact. It violated the basic spirit of the Vishakha Judgement.
Another significant anomaly of the statute is Section 14 which penalizes a woman on the account of malicious complaint and false evidence. This section has been termed as ‘red rag’ in the Verma Commission Report. It is very natural that if an aggrieved woman makes a complaint, she will face counterattacked by her employer who in turn may manipulate the documents.
Key provisions of the POSH Act include:
- Definition of Sexual Harassment
- Employer Responsibility
- Complaints Process
- Redressal and Penalties
- Mandatory Training
- Reporting
With Equal Rights, Education & Empowerment: Women Can Be ‘Agents of Change’
Global Gender Gap Report 2020, suggests – we need more than 100 years to achieve gender equality based on the current rate of progress.
Empowering women is crucial for enhancing girl’s education and achieving gender equality in society. It’s time to invest in and empower girls by providing them with education, life skills, sports, and much more.
Educating and empowering mothers is equally important as it enables them to make choices in their lives and encourages their daughters to go to school. Women need to stand up for themselves and choose diverse fields of work beyond traditional roles.
It’s essential to teach girls to fight against violence and boys to respect women. Let’s celebrate the inherent differences between genders but not use them to discriminate. All forms of education – be it formal schooling or larger public education and awareness campaigns – remain a master key to unlocking solutions that can advance the fight against corruption, gender equality, and women’s advancement and empowerment.
Women continue to share common space with men in the workplace, yet still face gender-based violence. Sexual harassment is a global issue that affects women in the workplace, hindering their growth and progress.
To combat this, the government must ensure a protected environment for both men and women. With an individual spending a significant portion of their day at work, employers must guarantee an atmosphere free from harassment. The government introduced the POSH Act, but the committees can only work if women come forward against wrongdoers and file a complaint.
In a recent judgment, the Supreme Court directed the Centre and State government to verify whether panels have been constituted in all departments and ministries to probe sexual harassment allegations at the workplace.
Remember, these committees can only help if women are brave enough to speak up. Integrating a gender perspective into a multi-stakeholder approach is critical to preventing and combating such issues.
Let’s take stern steps towards condensing the figure of sexual harassment cases and provide meaning to the term ‘gender equality. Together, we can work towards making every gender equal by bringing all forces together, whether political, economic, cultural, or social. Let’s make it happen!
Read a similar interest article at https://journals-times.com/2023/08/01/a-closer-look-at-indian-laws-against-elderly-abuse-and-neglect/
Author’s introduction
Dr. Kaur is a lawyer, researcher, campaigner, and social worker based in Chandigarh. She holds the position of Vice-President at “The Laxmi Foundation,” an NGO that focuses on supporting acid attack survivors. Her work is centered on promoting women’s empowerment and facilitating the integration of acid attack survivors, underprivileged women, children, and other marginalized groups in society.
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