Sexual harassment at Workplace is a serious issue that violates women’s rights to equality, respect, and safety. It comes from outdated patriachal beliefs and that harassment is not a big deal. This affects women’s mental health, lowers their confidence, and reduces work productivity. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 aims to create safe workspaces for women. However, with 93% of women employed in the informal sector, proactive measures and widespread awareness are critical. Empowering women through safe workplaces not only upholds their rights but also drives economic growth and national development.
NEW DELHI : Sexual harassment at Workplace is a serious issue that violates women’s rights to equality, respect, and safety. It comes from outdated patriachal beliefs and that harassment is not a big deal. This affects women’s mental health, lowers their confidence, and reduces work productivity. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 aims to create safe workspaces for women. However, with 93% of women employed in the informal sector, proactive measures and widespread awareness are critical. Empowering women through safe workplaces not only upholds their rights but also drives economic growth and national development.
The recent judgement by the Supreme Court in Aureliano Fernandes vs. State of Goa and Others,(2014) highlights , the importance of the implementation of the Act of 2013 and the Vishakha guidelines alongwith the recommendations of the Justice JS Verma Comittee Report , which gave various regulations to keep in check to mandatorily apply the guidelines.
“The meaning and content of the fundamental rights
amplitudes to encompass all facets of gender equality….”
-Late Chief Justice J.S. Verma, Supreme Court of India, Vishaka v. State of Rajasthan
SEXUAL HARASSMENT AT WORKPLACE AND VISHAKHA GUIDELINES
Sexual harassment at the workplace was a significant issue in India even before 1997, but there was no specific law to address it. At that time, victims had to file complaints under Section 354 of the Indian Penal Code, 1860, which dealt with “criminal assault of women to outrage women’s modesty,” or Section 509, which punished individuals for using a “word, gesture or act intended to insult the modesty of a woman.”
During the 1990s, a tragic incident highlighted the urgent need for stronger laws, Bhanwari Devi, a government employee in Rajasthan working under the Women Development Programme, tried to stop a child marriage as part of her duties. This angered the landlords of the community, who referred to her as “a lowly woman from a poor and potter community.” They sought to “teach her a lesson” and raped her repeatedly. Despite her courage in reporting the crime, the Rajasthan High Court failed to deliver justice, and the accused walked free.
This injustice outraged a women’s rights group called Vishaka, which filed a public interest litigation in the Supreme Court of India.
The case highlighted
“the absence of domestic law occupying the field, to formulate effective measures to check the evil of sexual harassment of working women at all workplaces.”
In 1997, the Supreme Court delivered a landmark judgment in the Vishaka and Others vs. State of Rajasthan case. It issued what are now known as the “Vishaka Guidelines”, which outlined how workplaces should handle complaints about sexual harassment. The Court emphasized that these guidelines were to be implemented until specific legislation was enacted to address the issue.
The Court also acknowledged the importance of international conventions and norms, stating,
“International Conventions and norms are significant for the purpose of interpretation of the guarantee of gender equality, right to work with human dignity in Articles 14, 15, 19(1)(g), and 21 of the Constitution and the safeguards against sexual harassment implicit therein.”
The Vishaka Guidelines defined sexual harassment as any unwelcome behavior of a sexual nature, whether direct or implied. This includes:
- Physical contact and advances
- A demand or request for sexual favors
- Sexually colored remarks
- Showing pornography
- Any other unwelcome physical, verbal, or non-verbal conduct of a sexual nature
The guidelines clarified that such acts could cause humiliation or health and safety concerns for the victim, whether they were a salaried employee, honorarium worker, or volunteer, in government, public, or private sectors. It further stated,
“Where any of these acts is committed in circumstances where the victim has a reasonable apprehension that in relation to the victim’s employment or work… such conduct can be humiliating and may constitute a health and safety problem.”
ALSO READ: ‘DARLING’ Constitutes Sexual Harassment: Calcutta High Court
GUIDELINES UNDER THE VISHAKHA JUDGEMENT
Duty of the Employer:
Employers or responsible persons in workplaces or institutions must prevent sexual harassment and set up mechanisms for resolving and settling complaints effectively.
Definition of Sexual Harassment:
Sexual harassment includes any unwelcome sexually determined behavior (whether direct or implied), such as:
a) Physical contact and advances
b) A demand or request for sexual favors
c) Sexually colored remarks
d) Showing pornography
e) Any other unwelcome physical, verbal, or non-verbal conduct of a sexual nature
Preventive Steps:
Employers should take the following steps to prevent sexual harassment:
a) Clearly prohibit sexual harassment at the workplace and notify, publish, and circulate this prohibition.
b) Government and public sector rules and regulations must include this prohibition and specify penalties for offenders.
c) Private sector employers should include the same prohibition in their standing orders under the Industrial Employment (Standing Orders) Act, 1946.
d) Provide supportive work conditions related to work, leisure, health, and hygiene to prevent hostile environments for women.
Criminal Proceedings:
Employers must take action if the behavior constitutes an offense under the Indian Penal Code. They must file or assist in filing complaints with the relevant authority and ensure that the aggrieved person or witnesses are not victimized or discriminated against.
Disciplinary Action:
If the behavior amounts to misconduct under service rules or codes of conduct, employers should initiate appropriate disciplinary action as per these rules.
Complaint Mechanism:
Employers must establish an effective complaint mechanism in their organization to address sexual harassment complaints, regardless of whether the behavior is legally defined as an offense. The mechanism must ensure timely resolution.
Complaints Committee:
The complaint mechanism must include a Complaints Committee with the following features:
- Headed by a woman
- At least 50% of the members must be women
- Include a third party (e.g., an NGO) to prevent bias or undue influence
- The committee must maintain confidentiality, prepare an annual report on complaints received and actions taken, and submit this report to the relevant government department. Employers must also report compliance with these guidelines.
Workers’ Initiative:
Employees must be allowed to raise issues of sexual harassment during meetings and other appropriate forums, and such discussions should be encouraged in employer-employee meetings.
Awareness Creation:
Employers should promote awareness of the rights of female employees by prominently displaying these guidelines at workplaces.
Third-Party Harassment:
If the perpetrator is a third party or outsider, the employer must take reasonable and necessary steps to support the victim and take preventive measures.
Government Role:
Central and State governments are urged to adopt measures, including legislation, to ensure the implementation of these guidelines in private sector workplaces.
Central and State governments are urged to adopt measures, including legislation, to ensure the implementation of these guidelines in private sector workplaces.
The Vishaka Guidelines applied to all forms of employment, including paid work and voluntary services, across both public and private sectors. This case not only highlighted the issue of workplace sexual harassment but also emphasized the role of international standards in shaping India’s legal framework. The judgment stated,
“Vishaka established that international standards/law could serve to expand the scope of India’s innovative history.”
The Vishaka guidelines led to the enactment of the Sexual Harassment of Women at Workplace
(Prevention, Prohibition and Redressal) Act, 2013 , which lays down the law regarding the prevention of sexual harassment and also the important committees required under the act and the various definitions of related terms and also , the punitive measures in case of the same.
It is important to note that the Vishaka Guidelines are no longer sufficient for legal compliance by employers, as they have been replaced by a comprehensive statute passed by Parliament. While the statute largely retains the framework set out by the Guidelines, there are notable differences, and it is the statute that employers must adhere to. For example, the definition of sexual harassment has undergone significant changes.
WHAT IS SEXUAL HARASSMENT UNDER THE ACT
The POSH Act defines sexual harassment based on the Supreme Court’s interpretation in the Vishaka Judgment. According to the Act, sexual harassment includes unwelcome sexual behavior, whether direct or implied such as ,
(i) physical contact and advances,
(ii) demand or request for sexual favours,
(iii) making sexually coloured remarks,
(iv) showing pornography,
(v) any other unwelcome physical, verbal or non-verbal conduct of a sexual nature.”
Certain other situations, when linked to acts of sexual harassment, may also qualify as harassment.
These include:
- Implied or explicit promises of preferential treatment in employment.
- Implied or explicit threats of adverse treatment in employment.
- Implied or explicit threats concerning current or future employment status.
- Interference with work or creating an intimidating, offensive, or hostile work environment.
- Humiliating treatment that affects the woman employee’s health or safety.
As highlighted, the POSH Act’s definition is broad enough to include both direct and implied sexual behavior, whether physical, verbal, or written. The key factor distinguishing such behavior is that it is unwanted and unwelcome by the recipient.
Quid pro quo harassment is a significant type of sexual harassment under this law. It refers to
“a form of sexual blackmail (which if translated in English, would mean ‘this for that’).”
In such cases, a person in a position of power pressures a woman employee, usually a subordinate, for sexual favors in return for workplace advancement or to avoid adverse employment consequences.
The Act also includes references to creating an intimidating, offensive, or hostile work environment. For example, if a workplace subjects a woman to unwelcome comments about her body type, it may lead to feelings of embarrassment and hinder her ability to perform effectively.
Some forms of sexual harassment, such as sexual assault, are inherently severe and may require only one occurrence to be recognized as harassment. However, other forms may not be as easily identifiable.
Since there is no precise test to define a “hostile working environment,” it is the internal committee’s responsibility to assess if the victim’s experience was severe enough to qualify. The evaluation depends on the specific facts and context of the case.
The High Court of Delhi, in 2010, reinforced the idea that sexual harassment is a subjective experience. It noted:
“A complete understanding of the complainant’s view requires… an analysis of the different perspectives of men and women. Conduct that many men consider unobjectionable may offend many women… Men tend to view some forms of sexual harassment as ‘harmless social interactions to which only overly-sensitive women would object.’ The characteristically male view depicts sexual harassment as comparatively harmless amusement… Men, who are rarely victims of sexual assault, may view sexual conduct in a vacuum without a full appreciation of the social setting or the underlying threat of violence that a woman may perceive“
DEFINITION OF EMPLOYEE AND WORKPLACE
The definition of an ‘employee’ under the POSH Act is broad enough to include:
“regular, temporary, ad hoc employees, individuals working on a daily wage basis, whether directly or through an agent, contract laborers, co-workers, probationers, trainees, and apprentices, regardless of the principal employer’s knowledge.“
This applies to those working for remuneration or on a voluntary basis, and whether the terms of employment are express or implied.
Regarding the workplace, while the Vishaka Guidelines were limited to traditional office settings, the POSH Act introduced the idea of an ‘extended workplace’. According to the POSH Act, the term ‘workplace’ includes:
“any location visited by the employee in the course of employment, including transportation provided by the employer for commuting.”
In the case of Saurabh Kumar Mallick v. Comptroller & Auditor General of India, the respondent, who was facing a departmental inquiry for allegedly sexually harassing a senior woman officer, argued that the alleged incident did not occur at the workplace but at an official mess where the woman officer was staying. He also contended that since the complainant was his senior, there was no possibility of extracting any ‘favor’ from her, thus claiming that the act would not constitute sexual harassment. The Delhi Court, however, dismissed this argument as “clearly misconceived”.
The Delhi High Court pointed out that
“the aim and objective of formulating the Vishaka Guidelines was obvious in order to ensure that sexual harassment of working women is prevented and any person guilty of such an act is dealt with sternly.”
The Court emphasized that:
“a narrow approach to defining ‘workplace’ should not be taken, particularly given the advancements in technology. It noted that with the growth of the internet and information technology, people can now interact or conduct business remotely via video-conferencing, and the traditional notion of ‘workplace’ no longer applies strictly to office settings.”
The Court further explained that:
“In cases where an officer, such as a CEO, indulges in sexual harassment with an employee in a non-office setting, such as his residence, it would not be acceptable for the offender to claim that the act did not occur at the ‘workplace’ and avoid liability.”
THE INTERNAL COMPLAINTS COMMITTEE AND THE LOCAL COMPLAINTS COMMITEE
The Sexual Harassment Act mandates that an employer must establish an ‘Internal Complaints Committee’ (“ICC”) at every office or branch with more than 10 employees of any gender. In addition, the government is required to form ‘Local Complaints Committees’ (“LCC”) at the district level to address sexual harassment complaints from establishments where the ICC has not been set up, either because the establishment has fewer than 10 employees or if the complaint is made against the employer.
If a woman is aggrieved of Sexual Harassment at Workplace , she must file a complaint in the following manner:
An aggrieved woman wishing to file a complaint must submit six copies of her written complaint, along with supporting documents and the names and addresses of witnesses, to the Internal Complaints Committee (“IC”) or Local Complaints Committee (“LC”) within three months from the date of the incident, and if the incident is part of a series of events, within three months from the date of the last incident.
Timely reporting of sexual harassment is just as crucial as the swift action taken by the authorities upon receiving the complaint.
“Prompt reporting of an act of sexual harassment is probably as important as swift action to be taken by the authorities on receiving a complaint. Infact the more prompt the complaint is, the more authentic can it be treated.”
In cases where the complainant can provide valid reasons for the delay in filing the complaint, the IC/LC has the authority to extend the deadline, provided that the reasons for the delay are recorded in writing. Additionally, the law also makes provisions for friends, relatives, co-workers, psychologist & psychiatrists, etc. to file the complaint in situations where the aggrieved woman is unable to make the complaint on account of physical incapacity, mental incapacity or death.
A WELL CRAFTED COMPLAINT MUST BE AS FOLLOWS:
- The complaint should be addressed directly to the members of the Internal Complaints Committee (“IC”), not to the employer or HR representative.
- It should be clear and concise, using simple language that can be easily understood. Well-written complaints, with proper presentation, carry more credibility.
- Include specific details about the incident, such as the exact date, time, and names of witnesses.
- Record the circumstances before and after the incident.
- Indicate whether the complainant asked the respondent to stop the unwelcome behavior.
- Attach as many relevant documents as possible, including e-mails, SMS/WhatsApp screenshots, call details, photographs, or recordings.
- Provide details about the respondent, such as their name, designation, and the reporting structure between the complainant and the respondent (whether subordinate, colleague, or superior).
- Ensure that no false or incorrect information is stated.
- Clearly state the relief the complainant is seeking from the employer.
INTERIM RELIEFS UNDER THE ACT
The Sexual Harassment Act grants the Internal Complaints Committee (ICC) and the Local Complaints Committee (LCC) the authority to recommend interim measures to the employer, upon the request of the aggrieved employee. These measures include:
- Transfer of the Aggrieved Woman or Respondent: This can involve transferring either the complainant or the respondent to a different workplace.
- Leave for the Aggrieved Woman: The Act allows the aggrieved woman to be granted leave for up to 3 months, in addition to her regular statutory or contractual leave entitlements.
OBLIGATIONS OF THE EMPLOYER
- Providing a Safe Working Environment: Ensuring that the workplace remains safe for all employees.
- Displaying Penalties for Sexual Harassment: The employer must display the penal consequences for acts that may constitute sexual harassment and the composition of the Internal Complaints Committee at the workplace.
- Organizing Workshops and Awareness Programs: Employers are required to organize workshops and awareness programs to sensitize employees on workplace sexual harassment, and to conduct orientation programs for members of the Internal Complaints Committee.
- Treating Sexual Harassment as Misconduct: The employer must treat sexual harassment as a misconduct under the service rules and initiate appropriate action.
- Monitoring Timely Reports: The employer is also responsible for ensuring the timely submission of reports by the ICC.
If an employer fails to establish an Internal Complaints Committee or does not adhere to the provisions of the Sexual Harassment Act, a monetary penalty of up to 50,000 Rupees will be imposed.
In case of repeated violations, the penalty may be doubled, and additional penalties such as the de-registration of the entity or the revocation of its statutory business licenses may also apply.
MAINTAINENCE OF CONFIDENTIALITY
Recognizing the sensitive nature of sexual harassment issues, the POSH Act places great emphasis on maintaining confidentiality regarding complaints and related information. It explicitly states that information about sexual harassment at workplace is exempt from the provisions of the Right to Information Act, 2005.
The Act further prohibits the public, press, or media from disseminating details of the complaint, including the identities and addresses of the complainant, respondent, and witnesses, as well as any information about conciliation, inquiry proceedings, the recommendations of the IC/LC, and any actions taken. However, the POSH Act allows for the sharing of information about the justice obtained for the victim, as long as it does not disclose identifying details such as the name, address, or other personal information that could lead to the identification of the complainant or witnesses.
Any breach of confidentiality by individuals responsible for handling complaints, conducting inquiries, or taking action under the Act is punishable under the relevant service rules, or if no such rules exist, by a fine of 5000 Rupees.
ALSO READ : Kerala High Court: “Commenting on Woman’s Body Structure is Sexual Harassment Under IPC”
OTHER LAWS PERTAINING TO SEXUAL HARASSMENT AT WORKPLACE
I. The Industrial Employment (Standing Orders) Act, 1946 (“Standing Orders Act”)
It is a central law that mandates employers to define and publish standardized terms of employment in the form of standing orders. These standing orders should outline key employment conditions such as work hours, wage rates, shift work, attendance, leave entitlements, and the processes for employee suspension, dismissal, or termination.
The Model Standing Orders under the Industrial Employment (Standing Orders) Central Rules, 1996 (“Standing Orders Rules”) include a list of acts classified as ‘misconduct,’ which specifically covers sexual harassment. These standing orders define ‘sexual harassment’ in alignment with the Vishaka Judgment’s interpretation and require the establishment of a complaints committee to address grievances related to workplace sexual harassment. It is important to note that under the Standing Orders Rules, the definition of sexual harassment is not restricted to women.
II. Indian Penal Code, 1860
| Section 354 | Outraging the modesty of a woman (assault or use of force intending to outrage modesty) | Cognizable | Section 113 |
| Section 354-A | Sexual harassment by a man (includes unwelcome physical advances, demand for sexual favors, showing pornography, making sexually colored remarks) | Cognizable | Section 120 |
| Section 354-B | Assault or criminal force with intent to disrobe | Cognizable | Section 114 |
| Section 354-C | Voyeurism (watching or capturing images of a woman in private) | Cognizable | Section 121 |
| Section 354-D | Stalking (repeated following or contacting a woman despite disinterest) | Cognizable | Section 122 |
| Section 509 | Insulting the modesty of a woman (uttering words, making gestures, or showing objects to insult her modesty) | Non-Cognizable | Section 123 |
III. Companies Act, 2013
In 2018, the Ministry of Corporate Affairs (MCA) introduced an amendment to the Companies (Accounts) Rules, 2014, which took effect on July 31, 2018.
The amendment mandates that companies include a statement in the Director’s Report confirming their compliance with the provisions related to the constitution of an Internal Complaints Committee (ICC) under the POSH Act. This statement is filed along with the company’s annual returns to the Registrar of Companies.
Rule 8 of the Companies (Accounts) Rules, 2014 now requires companies to disclose their compliance with the POSH Act provisions regarding the establishment of an ICC in their Director’s Report.
Failure to include the required disclosures as per Section 134 of the Companies Act, 2013 and its associated rules can result in a :
Fine ranging from 50,000 Rupees to 25,00,000 Rupees. Additionally, any officer of the company in default may face imprisonment for up to 3 years or a fine between 50,000 Rupees and 5,00,000 Rupees or both.
OTHER JUDICIAL PRECEDENTS
1. Apparel Export Promotion Council v. A.K. Chopra (1999)
The Supreme Court affirmed that sexual harassment includes non-physical conduct, broadening the scope beyond just physical touch.
2.Seema Lepcha vs. State of Sikkim (2012)
The Supreme Court emphasized the need for widespread publicity and awareness regarding sexual harassment guidelines and their enforcement.
3. Medha Kotwal Lele & ors. v. Union Of India (2012)
The Supreme Court issued the following guidelines under this case :
- State governments should make sure that there are sufficient complaint committees made within each state to hear every single complaint that is made and also these committees should be headed by a woman.
- Appropriate mechanisms should be created by the state authorities to make sure that effective implementation of the Vishaka guidelines is taking place.
- It shall be the duty of the Bar Council of India to make sure that all the bar associations in the country and individuals registered with the State Bar Councils adhere to the Vishaka guidelines.
- Similarly, every other national institution should also follow the Vishaka guidelines in their workplaces.
4.Aureliano Fernandes vs. State of Goa and Others (2023)
The Supreme Court highlighted the inadequate enforcement of the POSH Act, despite its decade-long existence. The Court criticized the hasty inquiry conducted against the appellant, ruling it violated principles of natural justice. It directed the Union, State Governments, and institutions to ensure timely formation of Internal Committees (ICs) and Local Committees (LCs) in compliance with the POSH Act, make related information publicly available, and conduct regular training to familiarize committee members with proper inquiry procedures.
READ JUDGEMENT
In conclusion, recently , the Supreme Court’s judgment in Aureliano Fernandes vs. State of Goa and Others has brought to light significant enforcement lapses in the implementation of the Protection of Women from Sexual Harassment (POSH) Act, even after a long period of its enactment.
The Court observed that:
“While the POSH Act holds promise in providing dignity and respect to women in the workplace, its success is contingent on strict adherence to enforcement and a proactive approach by both State and non-State actors. “
This includes ensuring the proper constitution of ICs, providing adequate training to committee members, sensitizing employees, and conducting inquiries in a fair and timely manner.
As the legal landscape evolves, companies must take proactive steps to meet their obligations, safeguard employees’ rights, and avoid legal and reputational repercussions
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