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SEXUAL HARASSMENT AT WORKPLACE: AN ANALYSIS OF RETROSPECTIVE LAWS

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BACKGROUND & OVERVIEW

Each of the individuals that are the subject of the nation is awarded certain rights which cannot be restricted and are absolute. The Constitution of India guarantees the Right to Live with Dignity, Right to Equality, and there are special rights which have been created for the betterment of children, and as well as women, for instance, the clause 2 and 3 of the Indian Constitution provides safeguards to the women and to the children. In the contemporary world, there are loads of sexual harassment cases accruing to women, it is factual that more than half of them are not even reported because of the superiority complex, and if the women raise their voice against their superiors, she would be fired from the company. It has been aimed by the organizations that a workplace is supposed to be a safe environment for women, and they shall not be tormented to any such cruelty or harassment. However, the act of sexual harassment still accrues and is contemporary in the relevant time.

Sexual Harassment of women at the workplace is a problem which is pertinent at the global level, it is enticed in the developing and as well as the developed countries. The heinous forms of sexual harassment have crossed the boundaries of religion, caste, race, class and are radial like a pandemic in the atmosphere of the corporate and as well as the government sector. As more and more women are working towards the betterment of their future by being employed in humungous Multi-National Corporations, the acts and prevalence of sexual harassment are also growing throughout society. It has been observed that the women in India are excelling in all fields, be it science, arts, commerce, music, etc. It is observed that as the world is moving towards industrialization, this world is becoming unsafe and as well as detrimental for the growth of women. There are numerous instances of sexual harassment, rape, stalking, and other offenses relating to women that go unreported, hence it results in failure of justice.

WHAT DOES SEXUAL HARASSMENT MEAN?

There have been numerous amendments in the Indian Penal Code and as well as the other laws relating to the betterment of women as time has progressed. Section 354A was added to the Indian Penal Code after the Criminal Law (Amendment) Act of 2013. This particular provision defines the ambit of acts which are counted as Sexual Harassment, they are:

  • Performing unentertained sexual gestures which are explicit in nature,
  • Showing of desire for personal sexual and explicit favors,
  • Depicting pornography to a woman when she has not consented to the same,
  • Passing gestures or comments which are explicit

Before the commencement and introduction of this particular provision, there were no specific laws under which the reliefs could have been claimed.

INTERNATIONAL LAWS AND TREATIES ON SEXUAL HARASSMENT AT THE WORKPLACE
  • United Nations General Assembly Resolution on the Declaration on the Elimination of Violence Against Women: This declaration widens the ambit of the violence accruing to the women at their workplace, the violence also includes the act of sexual harassment committed against them.
  • The Convention on the Elimination of all Forms of Discrimination against Women: CEDAW directs the states and countries to take appropriate measures to ensure that the discrimination and crimes that are committed against women are nullified and as well as prevented.
  • Beijing Platform for Action, para 178: Prohibits and promotes the act of violence at the workplace against the women, this declaration ensures that the state and as well as the central government enact appropriate laws for the betterment of the women.
  • ILO Committee of Experts on the Application of Conventions and Recommendations: This declaration also prohibits the act of sexual harassment and as well as discrimination against women, this declaration specifically aims at prohibiting Sexual Harassment at Workplace.
  • International Covenant on Economic, Social and Cultural Rights: This Covenant is highlighted because of the fact that it contains certain highlighting provisions for targeting those who are accused of Sexual Harassment at the Workplace or to any other crime related to Women. This covenant aims at the betterment of the Women and also uplifts their image in the eyes of society.
CONSTITUTIONAL PROVISIONS TAKING STAND AGAINST VIOLENCE AGAINST WOMEN

The Constitution of India is the Grund Norm and it is the duty of the state to ensure that the individuals and as well as the administrative bodies adhere there functioning to the guidelines laid down by the respectable constitution of India. There have been numerous contemporary developments in the field of Constitutional Law and as well as laws penalizing acts against sexual harassment against women at the workplace. One such provision is that of Article 19 (1) (g) of the Indian Constitution,[i] which ensures that any individual working with the affairs of the state or any individual private body has the freedom to carry on his desired trade, commerce, or business. This provision lays an obligation on the behalf of the state to ensure that individuals are not tormented on the basis of their profession and they are not restricted to perform a certain course of action.

Another similar right is that of Article 21 which guarantees the right to live one’s life with utmost dignity.[ii] This provision ensures that citizens are not deprived of their basic right which is their livelihood and there exist absolutely no laws which torment one’s right or violate any such right. The act of Sexual Harassment with Women at Workplace is a violation of the same because the work environment of a woman is pre-supposedly safe and adheres the utmost amount of professionalism. However, in cases of a woman being subjected to Sexual Harassment, it is a gross violation and shame on the aspect of the Right to Live with Dignity.

Vishaka Judgement and Prospectively Enacted Laws: Marking an End to Sexual Harassment?

The Apex Court of India recognized the gross form of violence against women for the primary aim that women are the potential future of the country, and therefore steps need to be taken to ensure that laws are formulated for the betterment of the same. Therefore, in the case of Vishaka & Ors. v. State of Rajasthan & Ors, [iii] a PIL was filed questioning the State of Rajasthan on the gross violation of the Fundamental Rights of the women being subjected to Sexual Harassment and the mere violation of Article 14, 19 and 21 of the Indian Constitution. In this case, it was observed that the petitioner was filed by an NGO named “Vishakha” after one of their workers was brutally gang-raped. In the same case, the Apex Court of India formulated certain guidelines to ensure that such acts are prevented and the women are not tormented by the acts of sexual harassment at the workplace.

In the case of Apparel Export Promotion Council v. A.K. Chopra, [iv] the guidelines which were laid down in the Vishaka case were promoted and were precedented to be adhered to. This case widened the ambit of the definition of Sexual Harassment by laying down that it can be tormented mentally too.

Also, in the case of Medha Kotwal Lele & Ors. v. Union of India & Ors, [v] the apex court laid down guidelines to ensure that the steps and procedures laid down in the Vishaka case are adhered to. Further, the Supreme Court directed that in case of non-consonance with the guidelines the victim can directly approach the High Court claiming the appropriate relief.

CONCLUSION

India is advancing in all sectors with rapid speed and it has been observed that women have been playing a major role in the advancement of the same. Daily, loads of women leave their residence with the hope that they would be able to work and earn for themselves, and also establish themselves as a strong unique separate identity in the society. This has been prevailing in the society because of the existing patriarchal norms which have been prevailing through the society. The patriarchal notion was limited in its own sense that the women shall not step out of their houses and their duties lie only in the fact limited to taking care of their husbands, children, and the household.

Since women have been immensely working towards the betterment of their image and slashing the notions of patriarchy, it has been presumed by the men that they are superior and can dominate the women, which is wrong in their own mentality. It is necessary that in an organization appropriate awareness is spread with respect to abolishing any such practices of sexual harassment and to ensure that such acts are prevented if they have been prevalent.

Author(s) Name: Anshit Minocha (UPES, Dehradun)

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[i] Indian Const. Art. 19 cl. 1 sub cl. g.

[ii] Indian Const. Art. 21.

[iii] AIR 1997 SC 3011.

[iv] AIR 1999 SC 625.

[v] AIR 2013 SC 297.