In India, where nearly one-sixth of the world’s women live, a woman prime minister held vital powers over the lives of 600 million people for eleven years and modern Indian women have adorned high offices in that of President, Prime minister, Speaker of the Lok Sabha, Leader of Opposition, yet in this nation dwell innumerable women who rarely step outside their homes. While many Indian women have taken conspicuous leadership positions in professional and public life, many more spend their days behind household walls. Even those who have set foot forward realizing their lights and recognizing their status, face new challenges of Indian society which is in the process of modernizing itself.
Nowadays many women are working for their living and they are being harassed by the colleagues in their workplace. This essay says about the sexual harassment of working women and the Acts issued in protection of these Acts and also the misuse of legal rights and protection given to women.
Taking birth as a woman in Indian society can be said as curse for the women. Women in India faced a lot of social issues and problems all through the life which are big struggle for them right from their beginning of life. Female infanticide is the most common practice of killing girl child in mother’s womb in the Indian society. Women in India are considered as burden for their parents and husbands as they think that women were here only to consume money whole life without earning a little bit. In ancient India during the times of the Aryans women enjoyed full and complete freedom and equality with men. They had an equal and honourable status in the society. No ‘Yajana’ could be performed by a husband without the participation of his wife. Women were given education along with men and they could also study the religious scriptures like the Vedas etc. The evil of Purdah system started in the medieval age with the coming of foreign invaders because the Hindus became afraid that the invaders might kidnap their daughters.
It is well known that traditional society in India was hierarchical and based on inequality. A paradoxical feature of the inequality based on son was that women suffered greater disabilities the higher they were in the caste hierarchy .For example, a Brahmin girl was legally permitted to marry only a Brahmin male. The lower status of women in society could also be traced by reference to the prevailing custom of Sati (burning of the widow on the funeral pyre of her husband) in some parts of India. In 1829 the British Administration abolished Sati and made it a penal offence. Female infanticide was checked by vigorous enforcement of the Female Infanticide Act, 1810. The prohibitions relating to Partiloma (a lower caste marrying a higher caste woman) marriages up to 1946, when the Hindu Marriage Disabilities Removal Act validated all intercaste marriages.
In the history of human development women have been as vital in the history making as men have been. In fact higher status for women vis-à-vis employment and work performed by them in the society is a significant indicator of nation’s overall progress. There are many reasons and problems that forced Indian women to work. The financial demands on the Indian families are increasing day by day. Cost of living, expenses on education of children and cost of housing properties in India raised and these reasons force every family in India to look for ways and means of increasing the household income. As a result, women in India who were mostly known as housemakers, are forced to go for jobs and take up even careers that were considered only suitable for men such as working in night shift. Women workers have to handle persecutions at their workplace, sometimes just ever look things to ensure that their job is not jeopardized in any way. Indian women are allowed to work in today’s life but still they are facing a lot more problems in social as well as professional life to balance both as priority need. Women workers in India are faced with lot more challenge than their counterparts in the other countries. Besides of so many efforts from past years female section of society is deprived in compared to male section. According to United Nations Development Programme (UNDP) report women are in involved in doing 67% of work of the world still they are socially and economically deprived. Women are sexually being harassed in their workplace. Here we discuss about the sexual harassment of working women.
Violence against Women
Women have been violated through centuries all over the world. But it is only in recent years that they have risen in revolt against this assault on their dignity and personality as human beings. In India this assertion by women has for some strange reason been touched off by the Supreme Court’s first judgement in the Mathura Rape Case. Perhaps there was the proverbial matchstick which set ablaze the prairie fire. It was the Bill to make the law more stringent for dealing with rape. According to the law rape of women will carry punishment varying from seven years in jail or life imprisonment. For police and other officials the proposed punishment is ten years plus a fine. The Bill seeks to ammend sections of the Indian Penal Code and the Code of Criminal Procedure and the Indian Evidence Act. According to the Government’s statistics 12 rapes are committed in the country everyday but according to the unofficial records a very large number of the rape cases go unreported. Along with that, cases of dowry deaths, eve-teasing and molestation of women have risen abnormally during the last one year. It has become a great social problem.
Indian women belonging to any class suffer from an inferiority complex. The male dominated society makes them to feel that they are incompetent, inadequate and worthless. It is from the time of birth that brainwashing begins. Her training from the childhood is groomed for a way of life that is accepted by others. This passive acceptance of her lot makes her an easy prey. So violence against women can be tackled at two levels – social and legal. In the case of the former the women will have to have confidence in herself and others, we will not hate her but pity her. From the legal side she will have to be treated as living, thinking sensitive human being having her on identity; she should not be treated as the property of husband and parents. Under the ancient law codes rape was not a crime against women but a violation of property rights of her father, brother or husband. Women were considered to be the property of her parents or her husband. The punishment was that the damaged property be bought by paying compensation and marrying her. Punishment for rape should be quite stringent.
Sexual Harassment At Workplace
According to the Protection of Human Rights Acts, 1993 “human rights” means the rights relating to life, liberty ,equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by law in India It is necessary and expedient for employers in work places as well as other responsible persons or institutions to observe certain guidelines to ensure the prevention of the sexual harassment of women as to live with dignity is a human right guaranteed by our constitution .It has been laid down by the Supreme Court that it is the duty of the employer or other responsible persons in work places or other institutions to prevent or deter the Commission of acts of sexual harassment and to provide the procedure for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps required. Women who either draw a regular salary, receive an honorarium, or work in a voluntary capacity in the government, private sector or unorganised sector comes under the purview of these guidelines .Supreme Court also laid along with the definition some preventive measures mandatory of expedient for employers in work places including other responsible persons and or other institutions to observe certain guidelines to ensure the prevention of sexual harassment of women.
1. Duty of the employer or other responsible persons at work places and other institutions;
It shall be the duty of the employer or other responsible persons in work places or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps required.
For this purpose, sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implications) as;
(a) Physical contract and advances;
(b) A demand or request for sexual favours;
(c) Sexually coloured remarks;
(d) Showing pornography;
(e) Any other unwelcome physical, verbal or non –verbal conduct of sexual nature
When any of these acts is committed in circumstances where under the victim of such conduct has a reasonable that in a relation to the victim’s employment or work whether she is drawing salary , or honorarium or voluntary, whether in Government , public or private enterprise such conduct can be humiliating and may constitute health and safety problem. It may be discriminatory for instance when the woman has reasonable grounds to believe that her objection would disadvantage with her connection with her employment or work including recruiting or promotion or when it creates a hostile work environment .adverse consequences may be visited if the victim does not consent to the conduct in question or raises any objection thereto.
3. 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. Without prejudice to the generality of the obligation they should take the following steps;
(a) Express prohibition of sexual harassment as defined above at the work place should be notified, published and circulated in appropriate ways.
(b) The Rules/ Regulations of Government and Public sector bodies relating to conduct and discipline should include rules/regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender
(c) As regards private employers steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946.
(d) Appropriate work conditions should be provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at workplaces and no employee women should have reasonable grounds to believe that she is disadvantaged in connection with her employ
4. 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 an appropriate authority .In particular, it should ensure that victims or witnesses are not victimized or discriminated against while dealing with the complaint of sexual harassment. The victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer.
5. 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 the those rules.
6. Complaints Mechanism:
Whether or not such conduct constitutes an offence under law or a breach of the service rules, an appropriate complaint mechanism should be created in the employer’s organization for redress of the complaint made by the victim. Such complaint mechanism should ensure time bound treatment of complaints.
7. Complaints Committee:
The complaint mechanism ,referred to in(6)above, should be adequate to provide ,where necessary, a Complaints Committee , a special counsellor or other support service ,including the maintenance of confidentiality, The Complaint Committee should be headed by a woman and not less than a half of it member should be women. Further to prevent the possibility of any undue influence from senior levels, such Complaint Committee should include a third party , either NGO or other body who is familiar with the issue of sexual harassment.
8. Workers’ Initiative:
Employees should be allowed to raise issues of sexual harassment at workers’ meeting and in appropriate forum and it should be affirmatively discussed in Employer – Employee Meetings
Awareness of the rights of the female employees in this regard should be created in a particular by prominently notifying the guidelines (and appropriate legislation when enacted on the subject) in a suitable manner.
10. Third Party Harassment:
Where sexual harassment occurs as a result of an act or omission by any third party or outsider, the employer and the person in charge will take all steps necessary and reasonable to assist the affected person in terms of support and preventive action. The Central /State Governments are requested to consider adopting suitable measures including legislation to ensure that the guidelines laid down by this order are also observed by the employers in the Private Sector .These guidelines will not prejudice any rights available under the Protection Of Human Rights Acts,1993.Accordingly ,the Supreme Court of India directed that the above guidelines and norms would be strictly observed in all workplaces for the preservation and enforcement of the right to gender equality of the working women .These directions would be binding and enforceable in law until suitable legislation is enacted to occupy the field.
THE SEXUAL HARASSMENT OF WOMEN AT WORKPLACE (PREVENTION, PROHIBITION AND REDRESSAL) ACT,2013
Parliament of India enacted “The Sexual Harassment of Women at Workplace (Prevention, Prohibition And Redressal) Act, 2013 (14 of 2013)to provide protection against sexual harassment of women at workplace and for prevention and redressal of complaints of sexual harassment and for matters connected therewith or incidental thereto.
Objects and Reasons of enactment of the Act
1. Sexual harassment at a workplace is considered as violation of womens’ right to equality, life and liberty .It creates an insecure and hostile work environment, which discourages women’s participation in work, thereby adversely affecting their social and economic empowerment and goal of inclusive growth.
2. Article 11 of the Constitution on Elimination of All Forms of Discrimination (CEDAW), to which India is a party, requires State parties to take all appropriate measures to eliminate discrimination against women in the field of employment. In its General Recommendation No 19(1992), the United Nations Committee on CEDAW further clarified that equality in employment can be seriously impaired when women are subjected to gender –specific violence ,such as sexual harassment at the workplace .India’s commitment to protection and promotion of women’s Constitutional rights as well as respect for its obligations under various international treaties are unequivocal
3. With more and more women joining the workforce, both in organised and unorganised sectors, ensuring and enabling working environment for women through legislation is felt imperative by the Government. The proposed legislations contain provisions to protect every woman from the act of sexual harassment irrespective of whether a woman is employed or not.
4. It is, thus proposed to enact a comprehensive legislation to provide for safe, secure and enabling environment to every woman ,irrespective of her age or employment status ( other than domestic worker working at home), free from all forms of sexual harassment by fixing the responsibility on employer as well as the District Magistrate or Additional District Magistrate or the Collector or the Deputy Collector of every District in the States as a District Officer and laying down a statutory redressal mechanism.
Major Features of the Act
· The Act defines sexual harassment at a workplace and creates a mechanism for redressal of complaints. It also provides safeguards against malicious or false charges.
· The Act also covers concepts of ‘quid pro quo harassment’ and ‘hostile work environment’ as forms of sexual harassment if it occurs in connection with an act or behaviour of sexual harassment.
· The definition of “aggrieved woman” in section 2(a), who will get protection under the Act is extremely wide to cover all women, irrespective of her age or employment status , whether in the organised or unorganised or unorganised sectors, public or private and covers clients , customers and domestic workers as well.
· An employer has been defined in section 2(g) as any person who is responsible for management, supervision, and control of the workplace and includes persons who formulate and administer policies of such an organisation under Section 2(g).
· While the “workplace” in the Vishaka Guidelines is confined to the traditional office set-up where there is a clear employer-employee relationship, the Act goes much further to include organisations, department, office, branch unit etc. in the public and private sector, organized and unorganized, hospitals, nursing homes, educational institutions, sports institutes, stadiums, sports complex and any place visited by the employee during the course of employment including the transportation. Even non-traditional workplaces which involve tele-commuting will get covered under this law.
· Committee is required to complete the inquiry within a time period of 90 days. On completion of the inquiry, the report will be sent to the employer or the District Officer, as the case may be, they are mandated to take action on the report within 60 days.
· Every employer is required to constitute an Internal Complaints Committee at each office or branch with 10 or more employees. The District Officer is required to constitute a Local Complaints Committee at each district, and if required at the block level.
· The Complaints Committees have the powers of civil courts for gathering evidence.
· The Complaints Committees are required to provide for conciliation before initiating an inquiry, if requested by the complainant.
· The inquiry process under the Act should be confidential and the Act lays down a penalty of Rs 5000 on the person who has breached confidentiality.
· The Act requires employers to conduct education and sensitisation programmes and develop policies against sexual harassment, among other obligations. The objective of Awareness Building can be acheived through Banners and Poster displayed in the premises, eLearning courses for the employees, managers and Internal Comittee members, Classroom training sessions, Communication of Organizational Sexual Harassment Policy through emails, eLearning or Classroom Training. It is recommended that the eLearning or Classroom Training be delivered in the primary communication language of the employee.
· Penalties have been prescribed for employers. Non-compliance with the provisions of the Act shall be punishable with a fine of up to ₹ 50,000. Repeated violations may lead to higher penalties and cancellation of licence or deregistration to conduct business.
· Government can order an officer to inspect workplace and records related to sexual harassment in any organisation.
· Under the Act in section 14, which also covers students in schools and colleges as well as patients in hospitals, employers and local authorities will have to set up grievance committees to investigate all complaints. Employers who fail to comply will be punished with a fine of up to 50,000 rupees.
CONSTITUTION AND SEXUAL HARASSMENT OF WOMEN AT WORKPLACE
Article 19 (1) g of the Indian Constitution affirms the right of all citizens to be employed in any profession of their choosing or to practice their own trade or business. Vishaka v. State of Rajasthan established that actions resulting in a violation of one’s rights to ‘Gender Equality’ and ‘Life and Liberty’ are in fact a violation of the victim’s fundamental right under Article 19 (1) g. The case ruling establishes that sexual harassment violates a woman’s rights in the workplace and is thus not just a matter of personal injury.Vishaka Vs. State of Rajasthan1is a case which deals with the evil of sexual harassment of women at her workplace. It goes back since the year 1985 when a women named as Bhanwari Devi, who was employed as a village-level social worker also known as-Saathin under the Women’s Development Project (WDP) run by the Government of Rajasthan was badly raped in the year 1992.As it was the part of Devi’s job, she used to directly work with the families to prevent the marriages and also report cases to the police to when urgency took place.With all this, in one particular case it happened that Devi reported a family which had belonged to the Gurjar Community to the police because of the arranged marriage of one year old infant.Therefore, to get revenge for the same act done by Devi, the family had rebelled against her but to also ostracise her from the community, around five men of the Gujjar community while she was at her workplace.Despite preferential and the derogatory behavior shown by the police and also the doctors, she was insistent on to fight for Justice so she lodged a complaint against the accused. However, in the absence of sufficient evidence the court had acquitted the accused in the Trail Court.Various social organizations and women activists also raised their voices for Devi’s fight for Justice. Therefore, a Public Interest Litigation was filled by the women’s right activists for the need to protect women from sexual harassment at the workplace.The Supreme Court had inspected the case which highlighted the problem of Gender Inequality, outraging the modesty of women, sexual harassment at the workplace and rape as societal issues of substantial intensity. Thus, violence against woman.
“Each such incident ends up in violation of the basic rights of ‘Gender Equality’ and therefore the ‘Right of Life and Liberty’. Because the violation of basic rights of this sort could be a revenant development. The basic right to hold on any occupation, trade or profession depends on the supply of a secure operating surroundings. Right to life suggests that life with dignity. The first responsibility for guaranteeing such “safety” and dignity through appropriate legislation, through its analysis, the Supreme Court concluded that sexual harassment in the workplace is a violation of women’s human rights, specifically:
Constitution of India
o Article 14: Equality before the law.
o Article 15: Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
o Article 19 (1)(g): Right to practice one’s profession, or to carry on any occupation, trade or business
o Article 21: Right to life and personal liberty. In particular, the Court referred to India’s ratification of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which has prohibits discrimination in the workplace and outlines specific state obligations to end it.
o Article 11(1) (a, f): The right to work and the right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction.
o Article 24: States parties undertake to adopt all necessary measures at the national level aimed at achieving the full realization of the rights recognized in the present Convention.
Vishaka Guidelines, 1997-:
In its judgment, the Court provided a set of guidelines for employers as well as other responsible persons or institutions – to immediately ensure the prevention of sexual harassment. In accordance with Article 141 of Constitution, these guidelines were to be considered law until appropriate legislation was created:-
· Sexual Harassment consists of unwelcomed sexually determined behavior as physical sexual contact, sexual favor, sexual remarks, pornographic content and also verbal. Non-verbal conduct of sexual nature.
· Whenever a sexual harassment takes place which amounts to a specific offence under law, the employer should take action by complaining about the same to the appropriate authority.
· An appropriate mechanism of prevention should be created for redressel of the complaint.
The Supreme Court had made it mandatory that these had to be followed by all originations until a legislative framework on the subject has been drawn-up and enacted. However, the legislative void continued and the Supreme Court in Apparel Export Promotion Council v. A.K Chopra ((1999) 1 SCC 759) reiterated the law laid down in the Vishaka Judgment. Dr. Medha Kotwal of Aalochana (an NGO) highlighted a number of individual cases of sexual harassment stating that the Vishaka Guidelines were not being effectively implemented. Converting the letter into a writ petition, the Supreme Court took cognizance and undertook monitoring of implementation of the Vishaka Guidelines across the country. The Supreme Court asserted that in case of a non-compliance or non-adherence of the Vishaka Guidelines, it would be open to the aggrieved persons to approach the respective High Courts
MISUSE OF WOMEN RIGHTS
Women have been provided with a lot of private and public rights and protection for her equality, life, and liberty. Even then it is being misused by women in many ways by giving malicious or false complaints or evidences resulting in the misuse of S.498 (a) of the Indian Penal Code.
It is defined in Chapter XXA of I.P.C. under Sec. 498A as:
Husband or relative of husband of a woman subjecting her to cruelty.
Whoever being the husband or the relative of the husband of a woman, subjects her to cruelty shall be punished with imprisonment for a term, which may extend to three years and shall also be liable to a fine.
Explanation – for the purpose of this section, “cruelty” means:
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demands for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
It punishes such demands of property or valuable security from the wife or her relatives as are coupled with cruelty to her. Hence a person can be prosecuted in respect of both the offences punishable under section 4 of the Dowry Prohibition Act and this section. This section gives wide discretion to the courts in the matters of interpretation of the words occurring in the laws and also in matters of awarding punishment. This provision is not ultra vires. It does not confer arbitrary powers on courts. In the last 20 years of criminal law reform a common argument made against laws relating to violence against women in India has been that women misuse these laws. The police, civil society, politicians and even judges of the High Courts and Supreme Court have offered these arguments of the “misuse’ of laws vehemently. The allegation of misuse is made particularly against Sec 498A of the IPC and against the offence of dowry death in Sec 304B. One such view was expressed by former Justice K T Thomas in his article titled ‘Women and the Law’, which appeared in The Hindu.21 The 2003 Malimath Committee report on reforms in the criminal justice system also notes, significantly, that there is a “general complaint” that Sec 498A of the IPC is subject to gross misuse; it uses this as justification to suggest an amendment to the provision, but provides no data to indicate how frequently the section is being misused.
It is important therefore that such “arguments” are responded to, so as to put forth a clearer picture of the present factual status of the effect of several criminal laws enacted to protect women. A program of research and development is urgently required to advance the current state of knowledge on the effects of legal sanctions on domestic violence. The narrow or perhaps almost negligible study done by law enforcement agencies about the deterrent effects of legal sanctions for domestic violence stands in high contrast with the extensive efforts of activists, victim advocates and criminal justice practitioners in mobilising law and shaping policy to stop domestic violence. It is important to do these studies to correct the general misconceptions that women are misusing the law by filing false cases against their husbands and in-laws in order to harass them and get them convicted. The perspective of the state and its agencies needs to change from that of protecting the husbands and in-laws against potential “misuse” of the laws of domestic violence to that of implementing their real purpose – to recognise that such violence is a crime and protect women who have the courage to file complaints against their abusers.
India is a traditional country and there is diversity in religions, culture and customs. Role of the women in India mostly is household and limited to domestic issues. In some cases women can find employment as nurses, doctors, teachers the caring and nurturing sectors. But even if well qualified women engineers or managers or geologists are available, preference will be given to a male of equal qualification. The present study investigated to identify the factors preventing women employees from aspiring for higher post and challenges & problems faced by women workers. Further the study try to explain the real condition of Indian working women and also make an effort to clear main problems of working women. The women must be protected as per the Act obeying the provisions in it. Sexual harassment of women at workplace is increasing day by day. Its great time we raise our voices against it.
Author Details: Jephy F Xavier (Government Law College, Thiruvananthapuram affiliated to University Of Kerala)