ABOUT THE AUTHOR
This article is written by Chandhana K.U. She is currently a final year student doing her B.A LL.B (Hons.) Degree from Bharata Mata School of Legal Studies, Choondy, Aluva. She is also an editor trainee of ljrfvoice.com
INTRODUCTION
Sexual harassment at the workplace has long been a pervasive issue in India, necessitating the formulation of legal safeguards to ensure a safe working environment for women. The evolution of sexual harassment laws in India has been a progressive journey, marked by judicial activism and legislative reforms. The Vishaka Guidelines of 1997 laid the foundation for addressing workplace sexual harassment, ultimately culminating in the enactment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. This essay explores the evolution of sexual harassment laws in India, analyzing their significance, challenges, and impact.
THE VISHAKA GUIDELINES (1997)
The landmark case of Vishaka v. State of Rajasthan [1] was a watershed moment in the legal landscape of India regarding workplace sexual harassment. The case arose from the brutal gang rape of Bhanwari Devi, a social worker in Rajasthan, who was attacked for preventing child marriage. In the absence of specific legislation addressing workplace sexual harassment, the Supreme Court laid down the Vishaka Guidelines, drawing from international conventions such as the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). The guidelines defined sexual harassment and imposed obligations on employers to prevent and redress such offenses. The key principles included:
- Definition of Sexual Harassment: Any unwelcome sexually determined behavior, including physical contact, advances, sexually colored remarks, showing pornography, and other verbal or non-verbal conduct of a sexual nature.
- Employer’s Duty: It mandated employers to take steps to prevent sexual harassment and set up redressal mechanisms within workplaces.
- Complaint Committees: Organizations were required to establish complaint committees, with a majority of female members and an external expert from an NGO or another organization committed to women’s rights.
- Preventive Measures: Employers were tasked with sensitizing employees and ensuring a work environment free of harassment.
These guidelines placed a responsibility on employers to prevent and redress instances of sexual harassment and mandated the establishment of Complaint Committees at workplaces. Although these guidelines were instrumental in creating awareness and instituting preliminary mechanisms for redressal, they lacked statutory backing, which limited their enforcement and led to inconsistent implementation across workplaces.
POST-VISHAKA DEVELOPMENTS AND THE NEED FOR A COMPREHENSIVE LAW
Despite the progressive nature of the Vishaka Guidelines, their implementation was inconsistent, and many organizations failed to establish the mandated Complaint Committees. Additionally, the guidelines applied only to workplaces, leaving other spheres such as educational institutions and public spaces unregulated. The guidelines were treated more as recommendations rather than enforceable law, leading to widespread non-compliance.
The Indian Constitution ensures every individual the right to practice any profession, or to carry on any occupation, trade or business. Sexual harassment violates article 19(1)(g) enshrined in the Indian Constitution in which every woman has the constitutional right to participate in public employment. It places women in an unequal position by posing risks and hazards. It also violates the right to life and personal liberty as mentioned in article 21 which states that no individual should be deprived of life and personal liberty. Also, the concept of equal status and opportunities, and gender equality as embodied in the Indian Constitution stands ineffective. Sexual Harassment is a violation of women’s fundamental and human rights.
Several reports and studies highlighted the prevalence of workplace sexual harassment and the lack of effective legal remedies. The National Commission for Women (NCW) and various women’s rights organizations advocated for comprehensive legislation. Before the introduction of the POSH Law, there was no statutory remedy that directly addressed workplace sexual harassment except the Indian Penal Code, 1860. The inadequacy of existing legal provisions under the Indian Penal Code (IPC), such as Section 354 (outraging the modesty of a woman) and Section 509 (insulting the modesty of a woman), further underscored the necessity of a specific law. Women who were sexually harassed at the workplace had to go to the police and file a complaint.
The application of the Indian Penal Code can be seen in the case of Rupan Deol Bajaj v. K.P.S. Gill [2], where a senior IAS officer was sexually harassed by a superior officer and the recourse to the limited provisions of the IPC under Section 354 and Section 509 was not found sufficient by the High Court. This gap in the law was very apparent and the need for further reforms on sexual harassment was obvious. The unfortunate circumstances in the Vishaka case ultimately prompted judicial intervention addressing workplace sexual harassment, its prevention, and redressal mechanisms
Several cases post-Vishaka highlighted the gaps in enforcement. For instance, in Medha Kotwal Lele v. Union of India [3], the Supreme Court reiterated the importance of strict adherence to the Vishaka Guidelines and directed states and Union Territories to ensure compliance. This reinforced the need for comprehensive legislation to address workplace sexual harassment effectively.
LAWS RELATED TO SEXUAL HARASSMENT AT WORKPLACE IN INDIA
After the landmark judgment of Vishaka & others v. State of Rajasthan [4], the Supreme Court of India issued directions for Union Government to formulate separate provisions and legislations related to Sexual Harassment at Workplace. The Constitution of India ensures the equality and dignified life to women. Many other laws related to sexual harassment were enacted and amended by the legislature to curb the issue of Sexual Harassment at Workplace.
In the year 2007, the Draft Protection of Women against Sexual Harassment at Workplace Bill was approved by the Union Cabinet. Later, in 2010 the Bill was introduced in Lok Sabha and was re-introduced in 2012 in Lok Sabha. On 3.09.2012, the Bill was passed by Lower House. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill was passed by Rajya Sabha on 26.02.2013. The assent was given by President on 23.04.2013.
Also, the year 2013 brought Criminal Law (Amendment) Act that criminalised the offences like sexual harassment, stalking, voyeurism etc.
THE SEXUAL HARASSMENT OF WOMEN AT WORKPLACE (PREVENTION, PROHIBITION AND REDRESSAL) ACT, 2013
The enactment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, [5] was a significant step in addressing the shortcomings of the Vishaka Guidelines. The Act provided a statutory framework for the prevention, prohibition, and redressal of sexual harassment at workplaces. It defined sexual harassment comprehensively and laid down stringent mechanisms for redressal, making it legally binding for employers to comply with its provisions.
Key Provisions of the 2013 Act
- Definition of Sexual Harassment: The Act, under Section 2(n), defines sexual harassment broadly, including unwelcome sexual advances, physical contact, sexually explicit remarks, and any other unwelcome conduct of a sexual nature.
Scope of the Act: Unlike the Vishaka Guidelines, which were limited to workplaces, the 2013 Act applies to both the organized and unorganized sectors,
- covering all workplaces, educational institutions, and even dwellings where domestic workers are employed.
- Internal Complaints Committee (ICC): Under the purview of Section 4, the Act mandates the establishment of an ICC at every workplace with ten or more employees. The ICC is responsible for receiving and addressing complaints related to sexual harassment.
- Local Complaints Committee (LCC): In cases where a workplace has fewer than ten employees or where the employer is the accused, the Act, as stated under Section 6, provides for the establishment of an LCC by the district officer.
- Time-Bound Inquiry and Action: The Act specifies that complaints must be resolved within 90 days and that appropriate action must be taken against the offender if the complaint is substantiated.
- Penalties for Non-Compliance: Employers who fail to comply with the provisions of the Act can face fines and other penalties, including cancellation of business licenses.
- Safeguards Against Retaliation: The Act ensures that no woman is victimized or subjected to any adverse consequences for filing a complaint of sexual harassment.
CONCLUSION
The journey from the Vishaka Guidelines to the 2013 Act reflects India’s commitment to addressing workplace sexual harassment and ensuring gender justice. While the Act has significantly strengthened the legal framework, challenges related to awareness, enforcement, and social stigma must be tackled to ensure its full realization.
Moving forward, there is a need for greater sensitization of employees and employers, stricter monitoring of compliance, and increased governmental oversight to ensure that workplaces remain safe for women. Strengthening the legal framework further by incorporating gender-neutral provisions and extending protections to all genders could be the next step in achieving a truly equitable work environment.
The evolution of sexual harassment laws in India is a testament to the power of judicial activism, legislative reform, and persistent advocacy by women’s rights organizations. While progress has been made, continuous efforts are required to create a workplace culture free from harassment and discrimination.
- [1] Act 14 of 2013
- [2] 1995 SCC (6) 194
- [3]AIRONLINE 2012 SC 632
- [4] Supra Note 1
- [5] Act 14 of 2013
BIBLIOGRAPHY
- Mamta Rao, Law Relating to Women and Children (Eastern Book Company, Lucknow, 4th edn., 2023)
- Dr. J.N. Pandey, Constitutional Law Of India, (Central Law Agency, Allahabad, 57th edn., 2020)
- The Constitution of India, 1950
- The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (Act 14 of 2013)
- The Criminal Procedure Code, 1973 (Act 2 of 1974)
