Introduction ( Pre Vishakha Scenario)
Sexual Harassment at workplace was never been mentioned as Separate Offence in IPC or any Other Statute under Indian Law. But it was always a concern for every woman in India. It was the part of the women’s movement in India in 1980’s when at that time the nurses were harassed in the public and the private hospitals, air hostess by their colleagues and passengers and the teachers in the primary and secondary schools by their colleagues and seniors. It was resulting in the outraging of women’s modesty. Since there were no specific law regarding such offence large number of complaints were filed under section 354 of IPC, but nothing gave any fruitful result as it was really difficult for the victims to explain that what they faced.
Vishakha and Ors. Vs State of Rajasthan:
A change in such scenario took place after the landmark judgment took place in the matter of Vishakha and Ors vs State of Rajasthan.
A women who worked as a social worker who worked for a development programme of the State of Rajasthan. She took the step to stop the child marriage. She was gang raped by the people of her organization as she took step to stop the child marriage in their family.
After hearing this petition the Hon’ble Apex Court passed the Judgement and issued guidelines on 13th August 1997 for the protection of women in Sexual Harassment at workplace:
- It is duty of the Employer or other responsible persons in work places or other institutions to prevent or deter the commissions of acts of sexual harassment and to provide the procedure for resolution, settlement or prosecution of acts of sexual harassment by taking all steps required.
- It also provided the ingredients or such commission of act will result in sexual harassment:
a) A Physical contact and Advances
b) A demand or request of sexual favours
c) Sexually coloured remarks.
d) Showing pornography
e) Any other unwelcome physical verbal or non-verbal conduct of sexual nature.
3. Not only the ingredients the Hon’ble Apex Court has also imposed the obligation on the Employer such as:
All employers or persons in charge of work place whether in the public or private sector should take appropriate steps to prevent sexual harassment. Without prejudice to the generality of this obligation they should take the following steps:
(a) Express prohibition of sexual harassment as defined above at the work place should be notified, published and circulated in appropriate ways.
(b) The Rules/Regulations of Government and Public Sector bodies relating to conduct and discipline should include rules/regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender.
(c) As regards private employers, steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946.
(d) Appropriate work conditions should be provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at work places and no employee woman should have reasonable grounds to believe that she is disadvantaged in connection with her employment.
Where such conduct amounts to a specific offence under the Indian Penal Code or under any other law the employer shall initiate appropriate action in accordance with law by making a complaint with the appropriate authority.
In particular, it should ensure that victims, or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment. The victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer.
Where such conduct amounts to misconduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules.
Whether or not such conduct constitutes an offence under law or a breach of the service rules, an appropriate complaint mechanism should be created in the employer’s organization for redress of the complaint made by the victim. Such complaint mechanism should ensure time bound treatment of complaints.
The complaint mechanism, referred to in (6) above, should be adequate to provide, where necessary, a Complaints Committee, a special counselor or other support service, including the maintenance of confidentiality.
The Complaints Committee should be headed by a woman and not less than half of its member should be women.
Further, to prevent the possibility of any under pressure or influence from senior levels, such Complaints Committee should involve a third party, either NGO or other body who is familiar with the issue of sexual harassment.
The Complaints Committee must make an annual report to the government department concerned of the complaints and action taken by them. The employers and person in charge will also report on the compliance with the aforesaid guidelines including on the reports of the Complaints Committee to the Government department.
Legislative changes (Post Vishakha Case)
After the this landmark judgment the Parliament introduced an act i.e. The Sexual Harassment act, which has been enacted in the year 2013 , this act has imposed certain obligation on employer under section 13, 14 and 22 and if an employer fails to do that he shall be punishable under section 26 of the act i.e.,
“Section 26: Where the employer fails to ··-
(a) Constitute an internal Committee under sub-section of section 4;
(b) Take action under sections 13, 14 and 22; and
(c) Contravenes or attempts to contravene” or abets contravention of other provisions of this Act or any rules made thereunder. He shall be punishable with fine which may extend to fifty thousand rupees.
(2)If any employer, after having been previously convicted of an offence punishable under this Act subsequently commits and is convicted of the same offence, he shall be liable to :-
(i) Twice the punishment, which might have been imposed on a first conviction, subject to the punishment being maximum provided for the same offence:
Provided that in case a higher punishment is prescribed under any other law for the time being in force, tor the offence for which the accused is being prosecuted, the court shall take due cognizance of the same while awarding the punishment;
(ii) Cancellation, of his license or withdrawal or non renewal or approval or cancellation of the registration as the case may be, by the government or local authority required for carrying on his business or activity.”