SEXUAL HARRASMENT

A Legal Perspective

SUBHANKAR DEY (A13)

BACKGROUND
The realization that incidence of sexual harassment is uncivilized,

unethical, immoral & a fundamental legal wrong has been in existence in our society since long but the verdicts of two landmark judgments of the Apex Court in Vishakha vs. State of Rajasthan (1997) & A K Chopra vs. Apparel Export Promotion Council (1998) have suddenly drawn the attention of our organizations to this problem & its gravity is felt by all concerned. Sexual Harassment is a universal problem & has caught the attention world over. The awareness has increased because of womens rights movements, increase of women population at workplaces, enhancement in womens education & adoption of convention on Elimination of All Forms of Discrimination against women by UNO, etc.

BACKGROUND
Nations have gone for different legal approaches to combat the

menace of sexual harassment. Laws & guidelines pertaining to sexual harassment are generally in nascent stages & require a good deal of maturity to effectively deal with this problem.

LEGAL APPROACHES ON SEXUAL HARASSMENT IN DIFFERENT COUNTRIES

In the beginning, the courts treated sexual harassment as either a

criminal violation such as assault or as a civil violation of privacy. The first decision in USA to grant relief for sexual harassment under Title VII of the Civil Rights Act of 1964 was William vs. Saxbe (1976). Sexual Harassment laws are of recent origin & generally influenced by UN Convenants, Human Rights Recommendations & ILO Conventions, etc. However, different practices have developed in different countries.

LEGAL APPROACHES ON SEXUAL HARASSMENT IN DIFFERENT COUNTRIES

The broad emerging trends may classify Sexual Harassment laws

into :

Equal Opportunity Laws Criminal Laws Tort Laws Labor Laws

LEGAL APPROACHES ON SEXUAL HARASSMENT IN DIFFERENT COUNTRIES

Equal Opportunity Laws forbid sex discrimination in

employment & in some cases, explicitly mention harassment & provide the most substantive source of protection in a number of countries Australia, Canada, Denmark, Germany, Ireland, New Zealand, Sweden, UK & USA. Criminal Laws is another category of law potentially applicable to sexual harassment. France is the example where sexual harassment are dealt under penal provisions. Tort Laws also provide protection to victims of sexual harassment. A tort is a legal wrong, other than a breach of contract, for which a court can grant remedy, most commonly in the form of damages & interests. Tort Laws have been prohibiting sexual harassment cases in Japan, Switzerland, UK & USA.

LEGAL APPROACHES ON SEXUAL HARASSMENT IN DIFFERENT COUNTRIES

Labor Laws also provides significant protection against sexual

harassment, but in practice its impact is often confined to quit pro quo cases. Unfair dismissal legislation has been or could be used to protect against dismissal on objection or refusal to submit to sexual harassment in Austria, Belgium, Italy, Spain, Sweden, Switzerland & UK.

ANTI SEXUAL HARASSMENT LAWS / GUIDELINES IN INDIA

There is no anti sexual harassment legislation in India. In two

recent Supreme Court Judgments, the cases of sexual harassment were through common laws IPC & Cr PC, etc. Constitutional Provisions :

Article 15 prohibits discrimination on grounds of religion, race, caste, sex, region. Article 39 (a) ensures that the citizens, men & women equally, have the right to adequate means of livelihood. Article 39 (d) states that there will be equal pay for equal work for both men & women.

ANTI SEXUAL HARASSMENT LAWS / GUIDELINES IN INDIA

Article 39 (e) states that the health & strength of workers, men & women are not abused. Article 42 ensures that the state shall make provision for securing just & humane conditions of work & for maternity relief. Article 51 enjoins upon every citizen of India, the obligation to renounce practices derogatory to the dignity of women.

LEGAL PROVISIONS FOR WORKING WOMEN

The Indian Penal Code :

Section 354 prescribes penalty of imprisonment of either description up to two years of fine or both for assault or use of criminal force on a woman with intent to outrage her modesty. Section 509 prescribes penalty of simple imprisonment up to one year or fine or both for word, gesture or act intended to insult the modesty of a woman.

LEGAL PROVISIONS FOR WORKING WOMEN

The Factories Act, 1948 :

Separate enclosed accommodation for men & women for toilet & washing (Sec 19). Every factory, employing more than thirty women workers shall provide a crche for use of their children below six years of age [ Sec 48 (1) ]. No woman shall be required or allowed to work in any factory, except between hours of 6 a.m. & 7 p.m. Under no circumstances, she will be authorized to work between 10 p.m. & 5 a.m. (Sec 66). No woman shall be required or allowed to work in any factory for more than 9 hours on any day (Sec 56). Employment of women is prohibited or restricted in factories having dangerous nature of manufacturing process.

LEGAL PROVISIONS FOR WORKING WOMEN

The Maternity Benefit Act, 1961 :

12 weeks paid maternity leave, if she has worked in an establishment for a minimum period of 180 days in 12 months immediately preceding the date of her expected delivery. Out of 12 weeks, six weeks shall precede the delivery & six weeks will be after the delivery. She is also entitled to receive from her employer a medical bonus of Rs. 250/-, if prenatal & postnatal care have not been provided by the employer free of charge. In Case of miscarriage, a woman shall be entitled to leave with wages of the rate of maternity benefit for a period of six weeks, immediately following day of her miscarriage, on production of proof of miscarriage.

LEGAL PROVISIONS FOR WORKING WOMEN

The Maternity Benefit Act, 1961 :

A woman suffering from illness arising out of pregnancy, delivery, premature birth of child or miscarriage shall also be entitled to paid leave for maximum period of one month in addition to maternity leave. No employer shall willingly employ a woman in any establishment during the six weeks immediately following the ay of her delivery of miscarriage.

LEGAL PROVISIONS FOR WORKING WOMEN

Equal Remuneration Act :

This Act guarantees equal remuneration to men & women workers for the same work or work of similar nature. This also prohibits any discrimination between men & women workers at the time of recruitment, promotion, training or transfer.

LANDMARK JUDGEMENTS OF THE SUPREME COURT

It is in this background that the recent judgements of the Indian

Supreme Court assume great significance.

In Vishakha vs. State of Rajasthan (August 1997), the Supreme Court, in exercise of powers under Article 32 of the Constitution, laid down guidelines & norms with regard to sexual harassment in workplaces, which is to be treated as Law Declared under Article 141. The Judges of the Supreme Court stated in absence of domestic law occupying the field, to formulate measures to check the evil of sexual harassment of the working women at the workplaces, the contents of International Conventions & norms are significant for the purpose of interpretation & guarantee of gender equality, right to work with human dignity (Article 14, 15, 19 (1) (g) & 21) of the constitution & the safeguard against sexual harassment implicit therein. The guidelines draw heavily on International Convention on Elimination of Discrimination Against Women (CEDAW) 1993 signed by UN members.

LANDMARK JUDGEMENTS OF THE SUPREME COURT

It is necessary & expedient for employers in workplaces as well as

other responsible persons or institutions to observe certain guidelines to ensure the prevention of sexual harassment of women :

Duty of employer or other responsible persons in workplaces & other institutions It shall be the duty of the employer or other responsible persons in workplaces or other institutions to prevent or deter the commission of acts of sexual harassment & to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps required. Definition Physical contact & advances, A demand or request for sexual favours, Sexually colored remarks, Showing pornography, Any other unwelcome physical, verbal or non verbal conduct of sexual nature.

LANDMARK JUDGEMENTS OF THE SUPREME COURT

Preventive Steps All employers or persons in charge of workplace, whether in the public or private sector should take appropriate steps to prevent sexual harassment. Criminal Proceedings 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. Disciplinary Action 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.

LANDMARK JUDGEMENTS OF THE SUPREME COURT

Complaint Mechanism Whether or not such conduct constitutes an offence under law or a breach of the service rules, appropriate complaint mechanism should be created in the employers organization for redress of the complaint made by the victim. Such complaint mechanism should ensure time bound treatment of complaint. Complaints Committee The Complaint Committee should be headed by a woman & not less than half of its members should be women. Further, to prevent the possibility of any undue 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.

LANDMARK JUDGEMENTS OF THE SUPREME COURT

Workers Initiative Employees should be allowed to raise issues of sexual harassment at workers meetings & in other appropriate forum & it should be affirmatively discussed in employer employee meetings. Awareness Awareness of the right of female employees in this regard should be created in particular by prominently notifying the guidelines in a suitable manner. Third Party Harassment Where sexual harassment occurs as a result of an act or omission by any third party or outsider, the employer & person in charge will take all steps necessary & reasonable to assist the affected person in terms of support & preventive action.

LEGISLATIVE MEASURES
The Sexual Harassment of Women at their Work Place

(Prevention) Bill, 2000 : The Bill defines the words sexual harassment & workplace. The bill imposes an obligation upon the employer to

Initiate action where the conduct of sexual harassment amounts to a specific offence under the Indian Penal Code or under any other law. Initiate disciplinary action where sexual harassment amounts to misconduct. Create complaint mechanism. Take necessary the Complaint Committee & District Level Officer about the disciplinary action initiated against the accused.

LEGISLATIVE MEASURES
The Prevention of Sexual Abuse of Women at Work

Place Bill, 2001 : The Bill defines sexual abuse to mean & include

Sexual Assault Rape Attempts to Rape Acts outraging the modesty of women & girls The Bill prescribes minimum punishment of not less than six month besides other action under the relevant conditions of services.

LEGISLATIVE MEASURES
Prevention of Sexual Abuse & Harassment of Women &

Girls at Work Place Bill, 2002 : The Bill defines sexual harassment & work place. Further the Bill adopts & definition of sexual abuse as defined in 2001 Bill. The Bill prescribes severe punishments for Sexual Harassment at work place, which may extend to 3 years & fine up to Rs. 2 Lakh. It also prescribes punishment for sexual abuse at work place, which may extend to life imprisonment & a fine of upon Rs. 51 Lakh.

LEGISLATIVE MEASURES
The Sexual Harassment at their Work Place

(Prevention) Bill, 2003 : The Bill seeks to provide for prevention & redressal of sexual harassment of women engaged at the workplace or arising out of & in the course of employment or custodial in nature by any one, including their employers, contractors, supervisors, colleagues & matters connected therewith. It also covers self employed women & female students in an education or other institution of learning.

CONCLUSION
Laws provide road mps & beacons right direction to society to

move on. Law & Society have moved together in the past & should continue to do so in the future. As a child outgrows his clothes with passage of time, so does the society & it invents & reinvents newer laws to suit its new requirements. The magnitude, in which the issue of sexual harassment have started manifesting today, requires reorienting our laws which should be simple, facilitating & effective. Already sufficient delay has taken place. Any further delay will be harmful, leading to move ugly incidents like the one that happened in T.B. Centre at New Delhi & paralysed the working of all hospitals in the capital on 26.7.99.

Thank You