Judiciary is undoubtedly the final bastion of the essential principals of Constitution namely, social, economic and political justice. One of the unique features of our Constitution is, its goal to make India a “welfare state” i.e., making the laws of the country society oriented. In protecting the above principal, the Indian Judiciary has adopted an activist approach while interpreting the laws which has ultimately led to a huge social transformation. Gender Justice has been a burning issue in the last decade in India, especially in light of the increased focus by non-Governmental organization and related women’s group dealing with such issues enabling the emergence of an aware and educated civil society. One such landmark transformation that has originated through this activist approach is the law on sexual harassment at workplace.
DEVELOPMENT OF THE LAW
Advent of globalization brought new hopes of earning a living not only for men but also for women. The economic development opened new arenas for women in the organized sector. However, new prospects brought new difficulties and one of the many evils which women faced was the evil of sexual harassment at workplace.
WHAT IS SEXUAL HARASSMENT AT WORKPLACE?
Sexual Harassment can be defined from Vishaka Judgement as “The term sexual harassment includes any unwelcome acts or behaviour such as physical contact in a wrong way, request for sexual favours, making sexual remarks, showing pornography or any other unwelcome conduct of sexual nature” Simply, it means that making someone feel uncomfortable by his act or gesture be it physical inappropriate touch or sending double meaning jokes etc.
- PRE VISHAKA SCENRIO
Initially, India did not have any such concept of sexual harassment at workplace. Although there were certain laws that pre-existed before this concept came into being. Some of them were- outraging the modesty of women, rape etc. Most of the complaints regarding sexual harassment either fell under these heads or were left remediless due to lack of a proper legislation. One ground-breaking verdict that paved way for the famous Vishaka judgment was Mrs. Rupan Deol Bajaj v. Kanvar Pal Singh Gillalso known as the “bottom-slapping case” wherein the Hon’ble Apex Court interpreted the word “modesty” and expanded its scope. The court keeping in consideration the social standards of women’s dignity held that the act of slapping the bottom of a woman amounted to outraging her modesty.
The landmark case of Vishaka v. State of Rajasthanwas first verdict to recognize the concept of sexual harassment at workplace. The facts of the case were related to the gang rape of Bhanwari Devi while she was working in the fields with her husband. The trial court acquitted all the five accused due to lack of evidence which led to a huge backlash from the countrymen. Ultimately a writ of mandamus was filed by an NGO named Vishaka in relation to this case. The Petitioner highlighted the lacunae of the existing legislation in India relating to the safety of women. They argued that the indecent acts towards women in their workplace amounted to the violation of fundamental rights of equality (14, 15), privacy (21) and trade and profession (19(1) (g)).
The Court recognized the lacunae in the Indian legislation and defined “sexual harassment”. “such unwelcome sexually determined behaviour (whether directly or by implication) as (i) physical contact and advances; (ii) demand or request for sexual favours; (iii) sexually coloured remarks; (v) showing pornography or (vi) any other unwelcome physical, verbal or non-verbal conduct of sexual nature.” It is pertinent to note here that this definition was later adopted by the legislature in 2013 by adding Section 354 A which defined sexual harassment. The court not only defined the term but due to lack of proper mechanism referred to various conventions including CEDAW to lay down a proper mechanism to deal with such cases which is famously known as the “Vishaka guidelines”. The guidelines included the redressal mechanism, formation of committee and measures for prevention for sexual harassment.
POST VISHAKA JUDGMENT
After these detailed guidelines framed in the Vishaka judgment, a catena of judgments followed these guidelines and highlighted the need for a sexual harassment law in India quoting it to be gender-based discrimination. Saudi Arabian Airlines, Mumbai v. Shehnaz Mudbhalkalwas the first case won by a female employee in a labour court on the ground of sexual harassment. The Apex Court in Medha Kotwal Leleand Ors. v. UOIcriticized the government on non-implementation of Vishaka guidelines in all states. The government in 2013 after a huge delay of almost 13 years enacted the “Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013”i.e. POSH Act in order to implement the Vishaka guidelines in its true letter and spirit.
INTERPRETATION OF POSH ACT
The Hon’ble Delhi High Court in Shanta Kumar caseheld that sexual harassment under the Act means physical contact bearing sexual undertone. Mere unwelcoming environment at workplace does not amount to offence under this Act. Also, the Kerala High Court in K.P. Anil Rajagopal caseruled that for constituting an offence under this Act the act must have some connection to sexual harassment and mere use of immoderate language is no offence. Various other cases have helped to clarify the position of POSH Act.
It is pertinent to note that despite the enactment to the POSH Act the cases of sexual harassment still continue to increase. The problem lies with the implementation of the Act. The role of judiciary has been very instrumental in interpreting and evolving the law of sexual harassment in India. The evolution of the law on sexual harassment is a glaring example of judicial activism in India. However, to achieve the objective of prevention of sexual harassment strict compliance to the provisions of POSH Act is the need of the hour.
Author(s) Name: Amrit Raj (Symbiosis Law School, Noida)
 Vishaka v State of Rajasthan AIR 1997 SC 3011
Indian Penal Code,1860,s 354
Indian Penal Code,1860,s376
Mrs. Rupan Deol Bajaj v Kanvar Pal Singh Gill AIR 1996 SC 309
Vishaka v State of Rajasthan AIR 1997 SC 3011
Mrs. Rupan Deol Bajaj (n 4)
Indian Penal Code,1860,s354(A)
UN General Assembly, ‘Convention on the Elimination of All Forms of Discrimination against Women, (United Nations, Treaty Series18 December 1979), 1249 p. 13
Vishaka (n 5)
Saudi Arabian Airlines, Mumbai v Shehnaz Mudbhalkal LLJ 1999 BOM 109
Medha Kotwal Leleand Ors v UOI INSC 2012 SC 643
Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
Shanta Kumar v Council of Scientific and Industrial Research (CDIR) & Ors FLR 2018 DH 719
K.P. Anil Rajagopal v State of Kerela KLJ 2018 KH 106
Saudi Arabian Airlines, Mumbai (n 11)