March 06, 2019

India: Prevention of Workplace Sexual Harassment Laws

 

Introduction
The implementation of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter referred to as the “Act”) was a win for all women employees. However, it was anything far from an easy or quick win. Sexual harassment at workplace is not only a wrong against the body of the woman but also wrong against her mentally. It is yet another form of discrimination, deterring her to be the part of the work force, and therefore refraining her from exercising her fundamental right to work as enshrined in Article 19 of the Constitution of India. It is a wrong against her life and against her dignity. The Supreme Court of India gave the landmark judgment in the case of Vishakha v. State of Rajasthan[1] in 1997, wherein the Court laid down the guidelines that the employers are required to follow. However, even after the direction of the Supreme Court, the guidelines were seldom followed. Finally, in 2013 the Parliament enacted the Act and the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 (hereinafter referred to as the “Rules”) framed thereunder.

Vishakha v. State of Rajasthan

A writ petition was filed before the Supreme Court for the enforcement of the fundamental right of working women under Article 14, 19 and 21 of the Constitution of India. The petition was filed to find suitable methods for realization of the true concept of ‘gender equality’; and to prevent sexual harassment of working women in all work places through judicial process, to fill the vacuum in existing legislation. This came in the wake of a brutal gang rape of a social worker Bhanwari Devi when she was petitioning to curb the evil of child marriage. This incident exposed the hazards that a working woman may be exposed to.

The Supreme Court acknowledged that sexual harassment at workplace is in violation of Article(s) 14, 15, 19(1)(g), 21, 42, 51A, 51 and 253. Thus, the Court laid down 12 guidelines and directed strict compliance in all workplaces for enforcement of gender equality at workplace until suitable legislation is enacted.

Evolution of POSH Laws

Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) to which India is signatory in this 11th session in 1992 laid down General Recommendation No. 19. These recommendations correlate sexual harassment with violation of a women’s human and fundamental rights. It urges states to ensure that women are not coerced into sexual harassment at workplace.

Since 1997, even after the Vishakha Judgment the Parliament did not take any significant steps to enact a suitable legislation. In Apparel Export Promotion Council v. A.K. Chopra[2] , the Court yet again upheld that any action which may not necessarily result in molestation can be covered under the ambit of harassment at work place if it creates a hostile work environment for the woman involved. Ten years after the judgment, Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill was introduced in 2007. The Union Cabinet approved the bill in 2010 after much deliberation. The bill was later referred to the Parliamentary Standing Committee on Human Resources Development which published its report in November 2011. The delay only resulted in array of cases of sexual harassment at workplace before Courts all over the country. The media started picking up cases and implementation of legislation became the dire need of the hour.

The Supreme Court came heavily on the legislators for ignoring such a crucial issue in Medha Kotwa Lele v. Union of India [3]. The Court ordered the states to ensure strict adherence of the guidelines until suitable legislation is enacted. Finally, the bill was passed by the Lok Sabah in September 2012 and the Rajya Sabhah approved the bill in February, 2013.

Salient Features of the Act

The Act incorporates the guidelines of the Vishakha Judgment. It covers within its ambit women which may or may not be employed at the workplace. This is crucial as any woman who comes in contact with the workplace such as Interns can avail relief under the Act. Further, the Act includes household workers within its scope.

The Act stipulates a specialized committee known as Internal Complaints Committee to be appointed at workplace with more than ten employees for ensuring all complaints of sexual harassment are dealt with utmost diligence. For other workplace a local complaints committee is constituted in every district.

The Act and the Rules made thereunder prescribes procedure to be followed by the committee. The provisions aim to afford maximum support and ease to the aggrieved. The Act also lays down duties of the employer for safeguarding the interest and dignity of all employees.

Conclusion

The Act and the Rules made thereunder is unquestionably a positive step in the direction of achieving equality in the professional sphere. This has resulted in empowering working women to work at par with their male counter parts without the fear of harassment. Moreover, the Act attempted to create awareness towards the problem previously so conveniently ignored.

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[1] 1997 (7) SCC 323. 
[2] (1999) 1 SCC 759.
[3] Civil Appeal No. – 5009-5010 of 2006; decided on October 19, 2012.


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