Harassment: Need For A More Inclusive Code

A broader brush and gender-neutral legislative structure that adequately addresses the harassment of all types and for all genders is the need of the hour. Further, the regulatory structure should be adaptable in catering to the needs of an evolving society with rapidly changing workplace interactions

Harassment remains a pervasive problem at workplaces in our country. Any act of harassment at a workplace assumes a different tone since the means and manner of addressing such harassment are often determined by hierarchical structures that exist at the workplace. Owing to the lack of a special legal framework that deals specifically and holistically with harassment at a workplace, remedies available under extant criminal laws are often disproportionate and ineffective.

Despite the passing of the Sexual Harassment of Women

at Workplace (Prevention, Prohibition and Redressal)

Act 2013 (Act), India is far from suitably addressing

harassment at a workplace in entirety. In this article,

we attempt to outline a short history of the evolution of

laws relating to harassment at a workplace in India and

the road ahead.

Genesis of Laws Governing Sexual

Harassment at the Workplace: The

Vishaka Judgment

Prior to 1997, there was no specific law or statute to

combat sexual harassment at workplaces in India.

Consequently, there was no specific legal obligation

on an employer to ensure and provide a safe working

environment for women at workplaces. Therefore, any

instance of sexual harassment could be dealt with only

as a criminal offence under the Indian Penal Code (

IPC

),

more particularly, Section 354 of the IPC, which deals

with criminal assault outraging a woman’s modesty,

or Section 509 of the IPC, which penalizes the use of

any word/gesture or act to insult a woman’s modesty.

This was the backdrop when the Supreme Court of India

(

Supreme Court

) heard the case of

Vishaka and Ors.

vs. State of Rajasthan¹. The petition was filed by a few

women’s groups including Vishaka, seeking protection

from and remedy against sexual harassment of women

at workplaces on the basis that it amounts to a violation

of every woman’s fundamental rights under Articles 14,

19 and 21 of the Constitution of India. Eventually, in

what is widely regarded as a watershed in the rights

of women at workplaces, the Supreme Court went

on to frame a set of guidelines that employers were

required to adhere to in order to avoid and effectively

address instances of sexual harassment of women at

workplaces.

In the case of

Vishaka

, the Supreme Court ascribed

a broad definition to the term ‘sexual harassment’,

bringing within its ambit any unwelcome sexually

determined behavior, including physical contact and

advances, a demand/request for sexual favors, sexually colored remarks or any other physical, verbal or non-verbal

conduct that is sexual in nature. Any such act, if committed

in a manner so as to cause a woman to perceive it to be

humiliating or detrimental to her well-being, would amount

to the offence of sexual harassment. As a recourse, the

Supreme Court prescribed the establishment of an internal

mechanism within every employer organization that would

facilitate the resolution of matters involving the sexual

harassment of women at workplaces in a more effective

and gender-sensitized manner so as to make it easier for

a woman to pursue a complaint of this nature without the

apprehension of hostile treatment from her colleagues.

However, the findings and observations of the Supreme

Court were not embedded in any legislative structure and

remained mere guidelines with no mandate on employers

to put in place a redressal system as envisaged by the

Supreme Court.

Codification of Vishaka Guidelines:

The Sexual Harassment of Women at

Workplace (Prevention, Prohibition And

Redressal) Act 2013

While the Vishaka judgment is regarded as progressive,

the lack of legislative enforcement of the Supreme

Court’s guidelines rendered the landmark decision

practically ineffective. The much-needed

legislative impetus finally took shape

in 2013 when the Sexual Harassment

of Women at Workplace (Prevention,

Prohibition and Redressal) Bill 2012

(

Bill

) was enacted by the Parliament as

an Act.

A notable contribution of the Act

in addition to the observations

and jurisprudence developed

by the Supreme Court is

the expansive and broad

definition ascribed to the

term ‘workplace’ to ensure

that the benefits of the Act

are available to all women

at every kind of workplace.

Section 2(o) of the Act defines

a workplace in the broadest

of terms and includes even a

dwelling place or a house where

a woman may be employed as

a domestic worker. Further, as

per Section 4, every workplace

employing more than 10 (ten)

employees is required to constitute

an Internal Complaints Committee

(

ICC

) for ascertaining the validity of any

complaint made regarding sexual harassment

by conducting an inquiry into the same. If the

ICC, after deliberation, is of the opinion that

a

prima facie

case exists, it will intimate the

police (mandatorily, within a period of 7 (seven)

days from receiving the complaint) to register a case under

Section 509 of the IPC. For workplaces employing less than

ten people, an aggrieved woman may make a complaint to

the Local Complaints Committee (

LCC

), which operates to

accommodate the needs of those establishments that do not

have a functional ICC. The District Collector will designate

one nodal officer in every block, taluka and tehsil in a

rural (or tribal) area and ward or municipality in the urban

area who will receive complaints to forward them to the

relevant LCC.

The Lacunae in Law

Given the fact that the genesis of the Act and its rationale

stemmed from the

Vishaka

judgment, it is focused solely

on addressing sexual harassment faced by a woman at a

workplace at the hands of a man. The Act does not deal

with the sexual harassment of a man at a workplace or

when the offender is a woman. While the Act is, no doubt,

a commendable first step towards establishing a robust

legal framework to address the safety of women at a

workplace, it is far from being a complete legislation

that effectively deals with harassment at a workplace.

For instance, the Act does not deal with harassment at

a workplace other than sexual harassment or sexual

harassment of a man or a woman by another woman.

Victims of such other forms of harassment continue to

be left to seek recourse solely under India’s core criminal

laws such as the IPC, as opposed to sexual harassment

under the Act having recourse before the ICC [or LCC,

as the case maybe] in addition to the right to proceed

under the IPC. A central flaw of core criminal laws such

as the IPC in dealing with harassment at a workplace

is that they tend to overlook the nitty-gritties and

dynamics between people at a workplace, which are

essential to effectively deal with the problem. By way of an

example, the conciliation process available under Section

10 of the Act is one such provision that gives a victim

of sexual harassment the option of dealing with an

offence more tactfully as compared to criminal prosecution

under the IPC.

The failure of core criminal laws such as the IPC in

dealing with harassment at a workplace is not new. In

the case of

Madan Mohan Singh v. State of Gujarat², the

court refused to hold an employer responsible for the

abetment of his employee’s suicide, specifically stating

that

‘If prosecutions are allowed to continue on such

basis, it will be difficult for every superior officer even to

work’

. The court took a similar view in the case of

Netai Dutta v. State of West Bengal³

. These are instances that

highlight the ineffectiveness and incompatibility of

criminal law in dealing with harassment at a workplace.

Criminal laws also fail to address the less heinous

forms of harassment at a workplace such as bullying,

which by itself may not constitute an offence under

the IPC.

Need for a More Holistic Legal

Framework

More often than not, instances of harassment are

discarded as being too trivial to constitute offences

under the IPC. There has been an increased integration

of rural populace into an urban workforce, which has

brought about new complexities in the form of cultural

differences, and the nature of interactions that define

interpersonal relationships at workplaces has become

drastically different. These are some of the reasons why it

becomes increasingly important to put in place an

overarching legal framework that would aid in policing

the manner in which individuals treat each other in an

employment space.

At present, the legislative structure prevalent in India is

inadequate to deal with situations wherein the harassment

of an individual amounts to an act of discrimination,

especially when the perpetrator is higher in the hierarchical

structure of an establishment. For instance, the harassment

on the basis of caste or tribe would amount to a criminal

offence punishable under the Scheduled Castes and

Scheduled Tribes (Prevention of Atrocities) Act 1989 but

has no censure or remedy specific to a workplace. Similarly,

harassment and discrimination on the basis of a physical

disability has recourse in law only under the Persons with

Disabilities (Equal Opportunities, Protection of Rights and

Full Participation) Act 1995 and no remedy more specifically

suitable to a workplace.

A more broad-brush and gender-neutral legislative

structure that adequately addresses the harassment

of all types and for all genders is the way to go. The

regulatory structure should be adaptable in catering to

the needs of an evolving society with rapidly changing

workplace interactions. Although it may still be

technically possible to address harassment at workplaces

by dealing with it individually under different kinds of laws,

sooner than later, a more holistic redressal mechanism is

necessary.

Footnote:
1. (1997) 6 SCC 241.

2. (2010) 8 SCC 628.

3. (2005) 2 SCC 659.

Disclaimer - The views expressed in this article are the personal views of the author and are purely informative in nature.