STUDY MATERIALS

A Critical Analysis of Sexual Harassment at workplace

Introduction

Sexual harassment is a recurring problem around the globe. Sexual harassment occurs in the workplace, but unfortunately there are no public records of the cases. The high response rate (67%) has enabled a comprehensive and reliable information resource to be created, hopefully to enable application in terms of on-the-ground practice and levels of awareness and action in the stated regions.  The Author will analyze the nature and frequency of sexual harassment which occurs at workplace and will discuss about the provisions, effects of Sexual Harassments. The author will also criticize about the Sexual Harassment which occurs at workplace.

What is Sexual Harassment?


“Sexual Harassment” includes anyone or more of the following unwelcome acts or behaviour (Whether direct or by implication) namely[1]:
a) physical contact 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.
A single incident is enough to constitute sexual harassment- it doesn’t have to be raped.
In 1997, in the landmark judgement Vishaka and others Vs State of Rajasthan[2] the Supreme Court of India defined sexual harassment at the workplace, pronounced preventive, prohibitory and redress measures, and gave directives towards a legislative mandate to the guidelines proposed.

Legal Provisions of Sexual Harassments:

Provisions under Indian Constitution[3]:
Sexual Harassment violates fundamental rights of a woman to equality under Article 14 which includes the right to equality of Indian Constitutional Law, Article 15 which discuss about Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth, and Right to life under Article 21.
Provisions under Indian Penal Code[4]:
The Criminal Law Amendment Act of 2013, which commenced on April 3, 2013, included Section 354 of the Indian Penal Code, 1860 which defines Assault or criminal force to woman with intent to outrage her modesty : Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine.
And Section 509 of Indian Penal code,1860 which defines Word, gesture or act intended to insult the modesty of a woman :Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, but such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to three years, and also with fine.

Effect of Sexual Harassment:

i) Emotional and Physical Issues
Sexual harassment can jeopardize the victim’s emotional and mental health. Victims of sexual harassment often suffer emotional and psychological harm, including stress, depression, and anxiety. They often experience decreased confidence and self-esteem. Physical health problems may arise such as loss of sleep and appetite, weight fluctuations, nausea, and headaches.  An employment harassment lawyer is also likely to work with clients who have suffered from long-term clinical depression as a result of sexual harassment.

ii) Financial Problems:
    In addition to causing health problems, sexual harassment frequently leads to financial challenges. Fear and decreased confidence can cause some people to withdraw from the workplace and disengage from co-workers. They are more likely to be tardy, absent, distracted, and neglect duties. Financial problems like lost wages and unpaid leave are also possible.

iii) Global Consequences:

Sexual harassment has a direct effect on employers and the global economy. Each year, millions are lost due to absenteeism, low productivity, employee turnover, low morale, and legal costs stemming from sexual harassment. The economy also suffers due to premature retirement and higher insurance costs.

Related cases on Sexual Harassment at Workplace:

In the case of Tuka Ram And Anr vs. State of Maharashtra[5]it was held that “Mere passive or helpless surrender of the body and its resignatess to the other’s lust induced by threats or fear cannot be equated with the desire or will, nor can furnish an answer by the mere fact that the sexual act was not in opposition to such desire or volition.”[6]
Mathura rape case was monumental in context of both social and legal perspective which sparked huge protests and public outcry for the very first time in India for the cases of rape at a very large level and which further led to so many reforms in the Indian rape law via the Criminal Law (Second Amendment) Act, 1983.


Vishaka vs. State of Rajasthan and Ors[7]
This was a landmark case regarding the protection of women against sexual harassment at workplace. Some legal changes was brought after that case. It provides the definition of Sexual Harassment which includes Unwelcome sexually determined behaviour & demands from males employees at workplace, such as: any physical contacts and advances, sexually colored remarks, showing pornography, passing lewd comments or gestures, sexual demands by any means, any rumors/talk at workplace with sexually colored remarks about a working woman, or spreading rumours about a woman’s sexual relationship with anybody.[8]

In the case of  State of Maharashtra vs. Madhukar Narayan Mardikar[9]Supreme Court overruled the judgment and gave the order of removal of his service. Supreme Court opined that “even a woman of easy virtue is entitled to privacy and no one can invade her privacy as and when he likes. Therefore, merely because she is a woman of easy virtue, her evidence cannot be thrown overboard.” So, she is very much entitled to protect her in case of any attempt to violate her as a person. Also, while deciding the cases of rape, past history of victim’s sex life does not matter, she is very much entitled to the protection of the law.

 Critical Analysis :

Though the law has achieved limited success in highlighting the issue of sexual harassment, it has failed to reach out to the large numbers of women in the unorganised sector who continue to suffer worse conditions of work and harassment without recourse to law. To prevent this, the legislative machinery ought to consider making suitable and reasonable amendment to the Act. These are not the only problems that women face at work. There are many more discriminations and challenges at the workplace today such as tenuous work contracts, exploitative conditions of work, and low wages that both women and men face. These problematic and unanswered inquiries present a problem for utilization of the Act and stays to be cleared up.


[1] https://www.indiatoday.in/india/story/sexual-harassment-at-workplace-1368055-2018-10-15

[2] (1997) 6 SCC 241, AIR 1997 SC 3011

[3] Indian Constitution Law, M P Jain

[4]  Indian Penal Code, 1860, K D Gaur

[5] AIR 1979 SC 185 (Mathura Case)

[6] https://blog.ipleaders.in/landmark-judgments-on-sexual-\harassment/

[7] JT 1997 (7) SC 384 (Bhanwari Devi Case)

[8] https://blog.ipleaders.in/landmark-judgments-on-sexual-harassment/

[9] AIR 1991 SC 207

 

Written By : Farheen Sultana
                                                                                 
                    3rd Year student – Haldia Law College, West Bengal

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