DR.

RAM MAHOHAR LOHIYA NATIONAL LAW

UNIVERSITY
2015

(FINAL DDRAFT)

“Sexual Harassment of Women at Workplace

Prevention, Prohibition and Redressal Act, 2013”

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ACKNOWLEDGEMENT

The whole case analysis in Basics of Case Law and legislation has been given shape and success
by the effort of a lot of people who has contributed in it completion.

I express my humble thanks to Professor), my subject teacher under whose supervision the
whole project have been made and without whose teachings and insights this project could not
have been fructified.

I also extend my heartiest thanks to my seniors for their insights into the concerned final draft
of the project and helping with me with everything I asked them. The role of the library
department is also noteworthy. All the staff members helped me generously in getting the
material and information I needed to complete this project

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TABLE OF CONTENTS

1. INTRODUCTION…………………………………………………………………iv
2. CRITICAL ANALYSIS OF SEXUAL HARASSMENT OF WOMEN AT WORKPLACE
(Prevention, Prohibition and Redressal ) Act, 2013…………………………………iv
3. MEANING OF TERM SEXUAL HARASSMENT……………………………..v
4. CONSTITUTIONAL PERSPECTIVE OF SEXUAL HARASSMENT OF WOMEN AT
WORKPLACE…………………………………………………………………….vi.
5. NATIONAL LEGISLATION DEALING WITH SEXUAL HARASSMENT OF WOMEN
AT WORKPLACE…………………………………………………………………………………………………….viii
6. JUDICIARY ON THE MENANCE OF SEXUAL HARASSMENT OF WOMEN AT
WORKPLACE……………………………………………………………………..xii
7. WHAT TO DO TO PREVENT AND STOP SEXUAL HARASSMENT AT THE
WORKPLACE ? – A FLOW CHART……………………………………………..xiii

8. CONCLUSION………………………………………………………………….xiv

9. BIBLIOGRAPHY……………………………………………………………….xv

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INTRODUCTION.

Sexual harassment in the workplace refers to an verbal or physical act with a sexual nature,
performed in recruitment or in the workplace by a boss, manager, employee, client or customer
of a working unit, that is unwelcomed by the person receiving it and has caused the person to
feel violated, insulted, and being in an unbearable hostile environment.
The verbal or physical acts with a sexual nature include: (i) joking or teasing with a sexual
nature; (ii) continuous invitation to dinner or date despite rejection; (iii) intentional
dissemination of hearsay with a sexual nature; (iv) enquiring for or sharing sexual experience;
(v) spreading and displaying a nude or image with apparent sexual contents; (vi) request for
sexual intercourse; (vii) unnecessary physical contact; (viii) forced sexual intercourse, etc.

CRITICAL ANALYSIS OF SEXUAL HARASSMENT OF WOMEN AT

WORKPLACE (Prevention, Prohibition and Redressal ) Act, 2013.
Sexual harassment has been recognized as a violation of human rights and it is considered as a
crime which violates the dignity and respect of a women. Sexual harassment which was
otherwise invisible menace until quite recently, has now become a major social problem with the
widespread entry of women as a work force. Sexual harassment is bullying or coercion of a
sexual nature or the unwelcome or inappropriate promise of rewards in exchange f sexual
favours. Presently in modern contexts sexual harassment is illegal and it is unlawful to harass a
person of that person’s sex. Thus, harassment can include, sexual harassment or unwelcome
sexual advances, requests for sexual favours and other verbal and physical harassment of a
sexual nature. This paper is an attempt to highlight the retrospective development (National and
International) responsible to compel the Parliament to pass the Sexual Harassment of Women at
Workplace (Prevention, Prohibition and Redressal) Act, 2013. Moreover, the Act has also been
critically analysed to remove the lapses for the proper implementation of this law in its true letter
and spirit

MEANING OF TERM SEXUAL HARASSMENT.

Sexual Harassment of women is a form of exploitation which covers physical as well as mental
exploitation, which affects her status in society, her relationships and also her performance at
workplace. Sexual Harassment is behaviour of a sexual nature when unwelcome sexual

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advances, requests for sexual favours, and other verbal or physical conduct of a sexual nature is
made either explicitly or implicitly as condition of employment of an individual, such conduct or
submission to such conduct is called sexual harassment. Submission to or rejection of such
conduct by an individual employee is used as a basis for employment decisions affecting such
individual, or such conduct has the purpose or effect of unreasonably interfering with an
individuals working performance or creating an hostile, or offensive work environment.
According to European Commission, Sexual Harassment means, the Unwelcome, unreasonable
and offensive nature of the conduct, and includes conduct that is hostile, intimidating or
humiliating to the recipient. The Equal Employment Opportunity Commission (EEOC) of United
States which oversees the enforcement of title has defined that “Unwelcome sexual advances,
requests for several favours, and other verbal and physical conduct of a sexual nature constitute
sexual harassment.” As per the Australian Human Rights and Equal Employment Opportunity
Commission, “Sexual Harassment is an unwelcome conduct, such as sexual advances and
requests for sexual favours, when a reasonable person would feel offended, humiliated or
intimidated by the conduct.” The Convention on Elimination of Discrimination Against Women
further says that Sexual Harassment includes such unwelcome sexually determined behaviour as
physical contacts and advances, sexually coloured remarks, showing pornography and sexual
demands, whether by words or actions. Such conduct can be humiliating and may constitute a
health and safety problem; it is discriminatory when the woman has reasonable grounds to
believe that her objection would disadvantage her in connection with her employment, including
recruiting or promotion or when it creates a hostile working environment. The ILO (International
Labour Organisation) definition of ‘Sexual Harassment’ is a clear form of gender discrimination
based on sex, a manifestation of unequal power relations between men and women.” Moreover
the Supreme Court of India in Vishaka and Others vs. State of Rajasthan define the Sexual
Harassment by drawing support from CEDAW. It defines that : “Sexual Harassment includes
such unwelcome sexually determined behaviour (whether directly or by implication) as: Physical
contact and advances; A demand or request for sexual favours; Sexually coloured remarks;
Showing pornography; Any other unwelcome physical, verbal or non-verbal conduct of sexual
nature. Moreover, Sexual Harassment defined in Apparel Export Promotion Council vs. A.K.
Chopra case made an analysis of this definition formulated in Vishaka case as under:

“Sexual Harassment is a form of sex discrimination projected through unwelcome sexual

advances, request for sexual favours and other verbal or physical conduct with sexual overtones,
whether directly or by implication, particularly when submission to or rejection of such a
conduct by the female employee was capable of being used for effecting the employment of the
female employee and unreasonably interfering with her work performance and had effect of
creating an intimidating or hostile working environment for her.”

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Thus, these are some of the legal definitions of Sexual harassment of Women at workplace,
which defines the ‘Sexual Harassment’ is basically the violation of human rights and the dignity
of a woman.

CONSTITUTIONAL PERSPECTIVE OF SEXUAL HARASSMENT OF

WOMEN AT WORKPLACE.

The Constitution of India guarantees all the basic and fundamental human rights set out in the
universal Declaration of Human Rights, 1948 to its citizens and other persons. The meaning and
content of the Fundamental Rights guaranteed in the Constitution of India are of sufficient
aptitude to encompass all the facets of gender equality including prevention of sexual harassment
or abuse. Each such incident of sexual abuse results in violation of “Gender Equality” and the
“Right to Life and Liberty” and also the “Right to practice any profession.”

The Preamble is the key to the Constitution. It does not discriminate men and women but it treats
them alike. The framers of the Indian Constitution were well aware of unequal treatment meted
out to the fair sex, from time to time immemorial. In India, the history of suppression of women
is very old and long which is responsible for including for general and special provisions for
upliftment and development of the status of women. Certain provisions are specifically designed
for the benefit of women. Undoubtedly, the preamble appended to the constitution of India,
1950, certain various objectives including the equality of status and opportunity to all the
citizens. This objective has been inserted with the view to give equal status to men and women in
terms of the opportunity. The Constitution of India guarantees equality of status and
opportunities to men and women, preamble to the Constitution resolves to secure to all its
citizens with Justice, Liberty, Equality and Fraternity

The Preamble of the Constitution declares to secure justice social, economic and to secure
equality of status and opportunity in the field of education, public employment and participation
in political field. There is also specific constitutional protection which prohibits the state from
discriminating against women on the ground of sex in such areas as education and public
employment and also directs the state to take special care to promote women’s welfare,
particularly by protecting their health as mother and dignity as individuals.

Under Part III of the Constitution Fundamental Rights, ensure equality before the law and equal
protection of law; prohibits discrimination against any citizen on grounds of religion, race, caste,

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sex or place of birth, and guarantee equality of opportunity to all citizens in matters relating to
employment. Part III of the Constitution of India Deals with the fundamental rights. The
provisions regarding fundamental rights have been enshrined in Article 12 to 35, which are
applicable to all the citizens irrespective of sex. However certain provisions protect the rights of
women. The fundamental rights are regarded as fundamental because they are most essential for
the attainment by the individual or his full intellectual, moral and spiritual status. per Justice
Bhagwati,

These fundamental rights represent the basic values cherished by the people of this country
(India) since the Vedic times and they are calculated to protect the dignity of the individual and
create conditions in which every human being can develop his personality to the fullest extent”.

The Constitution of India guarantees a dignified status of every woman. Fundamental Rights are
of sufficient amplitude to encompass guarantees against any kind of abuse, including sexual
harassment of women at workplace.

Except it, The Directive Principles, in short, do not create any legally enforceable reaction for the
enforcement of Directive Principles of the State Policy. The Court has time and reiterated the
position that Directives.... are not enforceable in court as they do not create any justifiable rights
in favour of any person; but the courts have a responsibility in so interpreting the Constitution as
to ensure implementation of the Directives and to harmonise the social objective underlying the
Directives with the individual rights.

So the Court has been trying to draw a balance and harmony between the fundamental rights and
directive principles, because the directive principles of state policy are equally important as the
fundamental rights. Directive Principles of State Policy provides the principles under Articles
(Article 38(2)), 39 (d) etc. for the protection of women from sexual harassment at workplace

Article 51-A of the Constitution of India provides for a Fundamental Duty ‘To promote harmony
and the spirit of common brotherhood amongst all the people of India transcending religious,
linguistic and regional or diversities; to renounce practices derogatory to the ‘dignity of women.
’So The Constitution of India, 1950 protects the women from sexual harassment at workplace.

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NATIONAL LEGISLATION DEALING WITH SEXUAL HARASSMENT
OF WOMEN AT WORKPLACE.

In the recent past the government has taken some positive steps to eliminate sexual violence
against women both in public and private life. In 1983, the Criminal Law (Amendment) Act was
passed with a view to protect women from certain categorises of Sexual exploitation.Although
many forms of abuse against women have received more public attention in recent years, the
sexual harassment which is just forms of abuse and which shares many similarities with other
forms of abuse that women face has received a little or perhaps no public attention despite our
commitment to protect women from all forms of exploitation and abuse.

Section 294 of Indian Penal Code covers the offence of doing of any obscene acts and singing,
reciting or uttering any obscene songs in public place and provides punishment for doing so as
three months imprisonment or with fine. This section has a very narrow application on sexual
harassment and is primarily meant for checking eve-teasing.It is essential for the offence under
this section that the offence must be committed in or near a public place. An Indecent exposure
of one’s person in an omnibus, a public urinal, a public house or in a place where public goes no
matter if they have any right to go or not, would be punishable under this section of IPC.

There are two Sections in the Indian Penal Code, which protects women against the sexual lust
of men. One is section 376 which punishes the forcible ravishment of women, called rape, while
section 354 punishes lesser acts of indecency such as solicitation for sexual intercourse, or the
like. It is not the act of outraging the modesty that is made an offence under section 354 of IPC;
in order to constitute an offence under this section, there must be an assault or use of criminal
force to any woman with the intention or knowledge that the woman’s modesty will be outraged.

Under Indian Penal Code, 1860 Except Section 354, Section 354-A is inserted under the head of
Sexual Harassment. Now Sexual Harassment is an offence under Indian Penal Code for which
prescribed punishment is rigorous Imprisonment for a term of three years. Sexual Harassment
includes Physical Contact and advances favour, showing pornography; making sexual coloured
remarks. This section was inserted in Indian Penal Code after the Nirbhaya Case (Delhi Gang
Rape) for the protection of women from eve- teasing and sexual exploitation. It protects the
women from sexual harassment, whether at ‘workplace’ or outside. Moreover, Sexual
Harassment also includes assault or use of criminal force to any women with the intention of

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disrobing or compelling her naked. Section 354B holds a great importance in rural areas where in
many cases of disrobing a woman have been reported in the past.

Voyeurism is also a form of Sexual Harassment. Voyeurism is an act of watching, or capturing

the image of a woman engaging in a private act. Private act includes such acts for which, in all
circumstances, privacy is demanded. Such acts are of ‘doing sexual acts’ that is not of a kind
ordinarily done in public. The same act is also punishable under IT Act 2000 because it is an
offence by the means of camera and Mobile phones, but Section 354-C specifically provides
punishment for Voyeurism. Section 354-C also covers those cases where a woman give consent
to a man to capture and watches her private images but the said consent does not include to
disseminate those captured photos to the third person.

Thus after the Criminal Law (Amendment) act 2013, Sections 354- A, 354-B, 354-C and 354-D
provides the protection to women from sexual harassment at workplace or outside the workplace.
It also includes the sexual harassment by the means of Internet, email and by the use of computer
technology. A person who insults the modesty of a woman in a public place is guilty of public
nuisance, one whose act goes beyond the words and gestures may be guilty of assault or use of
Criminal force punishable under Section 354 IPC. Section 509 applies only to an act which is not
punishable either as one or the other but which is nevertheless an outrage on female modesty.
Such would be the singing of an obscene song, the making of an indecent proposal, or the
exposure of one’s nude person.

Sexual Harassment and Rape are two coincide of the same coin. Both show the power of the man
to dominate that of woman. Both have one victim ‘women’. Both are barbaric in nature, but
many people extenuate sexual harassment to rape, just because the victims are not physically
harmed. But both have the same objective- to undermine the integrity of victim; physically as
well as mentally.Sexual harassment is nothing less than the showcasing of male dominance.
Given an opportunity, such men (those committing sexual harassment on women) would try their
desire. However it is also not true that all cases of sexual harassment are such – where the
accused is guilty of conceiving the intention of sexual intercourse.

The Criminal Procedure Code, 1973 provides certain provisions for the protection of women
from sexual harassment, so that a woman cannot be sexually harassed by the police Officers,
who are engaged in the duty of making Arrest, search and taking the statement of the witnesses
in the due process of the law For this purpose Criminal Law (Amendment) Act 2008, Criminal

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Law (Amendment) Act 2010 and Criminal Law (Amendment) Act 2013 plays a very important
role. Accordingly, if a woman confined in such circumstances as appear to amount an offence,
then any District Magistrate, sub-Divisional Magistrate or a Magistrate of 1st Class may issue a
search warrant and the person to whom such search warrant is directed may search for the person
so confined and the person, if found, shall be immediately taken before a Magistrate who shall
make such order as in the circumstances of the case seems proper. For the purpose of avoiding
the sexual harassment by the police Officer, special provisions for the arrest of a woman has
been made under the Criminal Procedure Code. In making an arrest the police officer or the other
person making the same shall actually touch or confine the body of the person to be arrested
unless there is a submission to the custody by word or action. But where a woman is to be
arrested, she could be touched only by the female police officer, and for making an arrest of a
woman after sunset and before sunrise, the woman police officer shall obtain the prior
permission in writing of the Judicial Magistrate of the first Class. Similarly, where there is a need
of a search of a woman who is reasonably be suspected of concealing about her person any
article for which search should be made, then the search of that woman should be made by
another woman with strict regard to decency. It is a well settled rule of the Criminal Procedure
that at the time of Investigation, a police officer who is doing such investigation can call a person
to his or any adjoining police Station but a woman cannot be called to a police station for the
purpose of recording her statement. Such police officer has to visit her residence for recording
her statement

It is pertinent to mention here that the Criminal Law (Amendment) Act, 2013 has amended the
Code of Criminal Procedure (CrPC) by inserting many provisions consistent with the new
provisions and sections added under IPC. The offences under Section 376, Section 376A, Section
376B, Section 376C, Section 376D and Section 376E of the Indian Penal Code, 1860 shall be
tried as far as possible by a Court presided over by a women, as per new proviso inserted under
Section 26 of CrPC, taking into account the sensitivity of the case and degree of understanding
that a woman may exhibit in these cases. Taking into account the fear element and insecurity in a
woman below the age of eighteen years who has been subjected to rape or other sexual offence
in giving evidence, the same shall be recorded in the absence of the accused while at the same
time ensuring the right of cross-examination of the accused, as stated after the amendment of
Section 273 of CrPC.

There has been substitution of new Section for Section 114A in the Indian Evidence Act,
presuming the absence of consent in certain prosecution of rape under section 376 of IPC,
wherein women alleges orally before the court about the absence of consent. Indian Evidence
Act consists certain provisions for the prevention of sexual harassment against women. There
have been few changes under Indian Evidence Act, bought by Criminal Law Amendment Act,

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2013 for the protection of women. Non-inclusion of the character of the victim or any of her
previous sexual experience with any person in considering the issue of consent by the victim in a
prosecution for offence under Section 354, Section 354A, Section 354B, Section 354C, Section
354D, Section 376, Section 376A, Section 376B, Section 376C, Section 376D or Section 376E
of the Indian Penal Code, 1860, quashes the means adopted by the accused for trying to escape
liability on these grounds. In addition, during the cross examination of the victim, it shall not be
permissible to adduce evidence or to put questions as to general immoral character, or previous
sexual experience with any other person for proving such consent or the quality of consent. This
may even ensure that a victim may not be subjected to repeated mental torture and
embarrassment for being inflicted upon such heinous offence.

Thus, these are the provisions under the criminal Law for the protection of women from sexual
harassment, so many changes have been introduced in the Criminal Law under Criminal Law
(Amendment) Act 2013, but these changes are not enough to provide the safe environment to
women at Workplace or at any other place. It becomes essential to introduced strict or corporeal
punishment to the accused of the outraging and insulting the modesty of a woman and for the
incidents of rape and also to protect the women from sexual harassment.

Except the above mentioned law’s, there are some other important legislations which deals with
the sexual harassment of women at workplace. A law on ‘Indecent Representation of Women
(Prohibition) Act 1986’ was passed to combat this evil, but women continued to be exploited for
economic gain. This Act is also applicable on the companies. If any company or manufacturing
establishment used any indecent label and make any indecent representation or advertisement,
then such company etc. can be held liable under this Act. The Information Technology
(Amendment) Act 2008 has reformed the law of obscenity in India to a greater extent. The
combined effect of Sections 66-E, 67, 67-A and 67-B are that online obscenity has been brought
within the legal regime. Information Technology Act 2000 contains certain provisions for
preventing the Sexual harassment against women. Section 66-E of the Act provides the
punishment for the violation of privacy. Section 66-E of the Information Technology Act, 2000
provides punishment for capturing, Publishing or transmitting the image of private area or the
image of naked person. If any woman feels that her image was captured or transmitted by any
person of her workplace, she can take an action under Section 66-E of Information Technology
Act, 2000. It is an Act which provides protection to her from sexual harassment at workplace.
Thus, Information Technology Act, 2000 enlarges the area of obscenity and includes within,
depiction of sex activities.Similarly this Act provides the protection to women from ‘Stalking.’
Stalking is a form of sexual harassment of women as it contains the element of monitoring the
women through Internet, e-mails and computer technology.

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Highlighting retrospectively, keeping in view the desirability of a Commission for Women at the
national level, the National Commission for Women Act, 1990, was passed. The Protection of
Human Rights Act, 1993 also provides the protection to the women from sexual harassment at
workplace. The ‘Sexual Harassment of Women (Protection, Prohibition and Redressal) Act,
2013 was passed taking in view and the protection of human rights and the dignity of women.
Even, Immoral Traffic (Prevention) Act, 1956 provides the punishment for the sexual
exploitation and harassment of women. If a girl or woman forcibly keeping in the work of
prostitution or flesh market by any person, such person can be punished under Immoral Traffic
(Prevention) Act 1956

JUDICIARY ON THE MENANCE OF SEXUAL HARASSMENT OF

WOMEN AT WORKPLACE.

The vibrant judiciary exalted the dignity of working women by issuing directions for providing
safe environment at the workplace to ensure protection of female employees from sexual
harassment. These directions were given in the Vishaka case. In the absence of specific
legislation on the subject, the Supreme Court took upon itself the ‘guidelines and norms’ and
stressed that such guidelines be treated as law within the meaning of Article 141 of the
Constitution. The Court has defined, having regard to the definition of “women rights” in the
Section 2(d) of the Protection of Human Rights act 1993. “Sexual Harassment” as including any
unwelcome sexually determined behaviour (whether directly o by implication) like physical
contact and and advances, a demand request for sexual favours, sexually coloured remarks,
showing pornography and any other unwelcome physical, verbal or non-conduct of sexual
nature. After this landmark case, the Supreme Court of India in number of cases tried to define
and prevent the evil of sexual harassment of women at workplace through its various decisions.

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WHAT TO DO TO PREVENT AND STOP SEXUAL HARASSMENT AT
THE WORKPLACE ? – A FLOW CHART.

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 Incidence of sexual harassment

Refuse verbally

Ineffectual

Refuse/warn in writing (keep

the evidence)

Ineffectual

Speak to friends, family or File a complaint with the sexual

social worke rs, therapists harassment complaint center set up by
and ask for help the company (keep all evidences)

Complaint center registers the case

Urges relevant departments to Conducts investigation and

take action to prevent the collects evide nce
continuation of harassing act

Complaint proved to be genuine Complaint found to be vague

Complaint center files Company imposes penalty on the Complaint Center pacifies
investigation results and of fending employee, such as fine, bot h parties and files the
supporting documents warning, transfer of post, dismissal, etc. investigation results

Ineffectual

Ask for help from relevant social organizations,
such as the city and district Working
Committee on Women and Children, women’s
federation, women workers’ department of the
trade union, women’s legal aid NGOs, etc. ）
File a suit with the court (show text message,
audi o record, evidence of posting of letter of
refusal, HR department’s decision on the
offending employee and other evidence, to
prepare for counter-suit of rights infringement

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CONCLUSION

To Conclude, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and

Redressal) Act 2013 is a very positive step for the protection of women from such type of crimes
in India. But even after the passing of this Act there are so many high profile cases of sexual
harassment happens in India. The case of Tarun Tejpal is one of the high profile cases. In a five
star hotel, investigating Officer Sunita Sawant has charged Tejpal under the Offence of Sexual
Harassment and for taking advantage of his official position and also for rape. From this incident
it is clear that even though many legislations have been brought forwarded by the government,
but it has not been able to effectively prevent Sexual harassment against women at workplaces.
So for this, not just legislations are enough, an effective participation from the public side is also
equally important.

The Sexual Harassment of Women at Workplace is a problem not only between the two
individuals- the harasser and the harassed, but is also an organizational problem. Since it occurs
within the groups, such as academic institutions, commercial organizations and government
agencies, it is essential that multidimensional and intervention programmes both at individual
and organizational levels, need to be emphasised. At Organisational level control strategies, the
academic institutions, commercial organisations and government agencies should be required to
design and set up effective complaint system to deal with the charges of sexual harassment.
Under the general policy, the organizations must assume the responsibility for the sexual
misconduct of their employees as regards the payment of compensation to the victims of sexual
harassment. Sexual Harassment of women at workplace has become such an evil which cannot
be abolished only through the passing of Legislation on it. But it demands the cooperation of the
society as well as the cooperation of employer for protecting the women from sexual harassment
at workplace by providing safe and healthy working environment to her. In the cases of Sexual
Harassment at Workplace, sometimes women feel shy in facing of publicity, procedure and delay
in criminal system, for them the Sexual Harassment of Women at Workplace (Prevention,
Prohibition and Redressal) Act 2013 is much effective, but it needs much alterations, so that
women can easily go through the procedure provided by the Act for the disposal of complaints
under the Act.

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BIBLIOGRAPHY:
1. All India Reporters

2. Supreme Court Cases

3. www.legalserviceindia.com

7. www.manupatra.com

8. www.wikipediea.org

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