Author: Rakesh Kr Chaurasiya

Abstract: 

Women in India face numerous challenges in the workplace, with sexual harassment being a significant barrier to both personal advancement and workplace equality. Recognising the need for change, Indian law has gradually developed frameworks to protect women, beginning with the Vishaka Guidelines and culminating in the Prevention of Sexual Harassment (POSH) Act. This analysis aims to trace this legal progression, exploring how these reforms have addressed key forms of harassment—quid pro quo and hostile environment—and assessing their impact on professional spaces. By examining the successes and limitations of these policies, the study highlights the importance of ongoing legal reforms to ensure workplace safety for women. 

Key Words: Sexual harassment, workplace, Human rights, Equality and employment.

Introduction:

 India is rapidly progressing in its developmental goals, and more women are joining the workforce, resulting in the sexual harassment of women at the workplace becoming increasingly prevalent in India. Sexual harassment at the workplace is an extension of violence in everyday life and is discriminatory and exploitative, as it affects women’s right to life and livelihood. Sexual harassment constitutes a gross violation of women’s right to equality and dignity. It has its roots in patriarchy and its attendant perception that men are superior to women and that some forms of violence against women are acceptable. 

These incidents of sexual harassment result in a violation of the fundamental rights of a woman to equality under Articles 14 and 15 of the Constitution of India and also affect her right to live with dignity as envisaged under Article 21 of the Constitution. Women all around the world have faced instances of sexual harassment, which may include sexual advances and other verbal or physical harassment of a sexual nature, and the same is required to be dealt with proper care, as a safe and secure workplace is, therefore, a woman’s legal right.

To curb these acts/ incidents of sexual harassment at the workplace, the Ministry of Women and Child Development, Government of India, enacted the first codified legislation specifically dealing with the issues of workplace sexual harassment, i.e. “The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013” (hereinafter referred to as the “POSH Act”). The POSH Act, along with POSH Rules collectively referred to as the “POSH Law”, aims to foster a safe and secure working environment for women by preventing, prohibiting, and redressing the instances of sexual harassment at workplaces in India.

Historical Background:

The Indian society has been and continues to be patriarchal, where men are considered to have a dominant position. The patriarchal society has shaped the country into believing that men are superior to women, stronger. In earlier times, women were suppressed and harassed. No woman dared to stand up for themselves. It took them quite a long time to develop a voice and take a stand. In the early 19th century, women all around the country formed groups to advocate for their rights. Education and awareness played a great role in this movement. Financial independence, equal rights, gender equality and equality of opportunity were some of the main focuses of the movement. 

Not only is it an infringement of the fundamental rights of a woman under Article 19(1)(g) of the Constitution of India, “to practice any profession or to carry out any occupation, trade, excused as ‘natural’ male behaviour or ‘harmless flirtation’ which women enjoy, but contrary to these or of to a business”. This leads to poor productivity and a negative impact on lives and livelihoods. To further compound the matter, deep-rooted socio-cultural behavioural patterns, which create an ender hierarchy, tend to place responsibility on the victim, thereby increasing inequality in the workplace and in society at large.

International Laws and Policies for Addressing the Issues of Sexual Harassment in the Workplace

International conventions to protect women against violence have been in place for a long while. The Vishaka Guidelines drew from a few of them in the following ways:

• General recommendation 19 to the “Convention on the Elimination of All Forms of Discrimination against Women” (“CEDAW”): It directs the state parties to take appropriate measures to eliminate discrimination against women in all fields, specifically including equality under law, in governance and politics, the workplace, education, healthcare, and in other areas of public and social life (Article 7-16). India, which is a party to this convention, has taken inspiration from its aspects of equality of women in the workplace, gender-specific violence, and unwelcome sexually determined behaviour and adopted them into the POSH Act.
• International Labour Convention on Discrimination (Employment and Occupation) Convention (No. C111): The ILO Committee of Experts on the Application of Conventions and Recommendations has confirmed that sexual harassment is a form of sex discrimination covered by the Discrimination (Employment and Occupation) Convention (No. C111) of 1958. India ratified this document on June 03, 1960. Through this Convention, India has an obligation to prohibit and prevent any gender-based discrimination in the workplace.

Legal Reforms: From Vishaka Guidelines to the POSH Act and Beyond:

Before the 1997 Vishaka judgment, Indian law lacked the term “sexual harassment,” instead relying on antiquated phrases such as “outraging or insulting a woman’s modesty,” which overlooked many subtle forms of abuse; it was only through cases like Bhanwari’s, a rural activist in Rajasthan, that the urgent need for legal reform became apparent. Then came the Vishaka guidelines, formulated in 1997, which served as a pioneering step in recognising sexual harassment as a form of gender-based discrimination.

VISHAKA JUDGEMENT

The framework for the sexual harassment at workplace law was laid down for the very first time in the Vishaka Judgement on August 13, 1997, by the Supreme Court. This is a case which deals with the evil of sexual harassment of a woman at her workplace, and the incident revealed the hazards to which working women are exposed across the country, everywhere and every day, irrespective of their location and the urgency for safeguards to be carried out.

 Facts: 

In 1985, Bhanwari Devi, a social worker from Bhateri, Rajasthan, began working with the government-run Women’s Development Project. As part of her efforts to address social issues like rape and child marriage, she opposed the child marriage of a local girl in 1992. Despite her intervention, the marriage proceeded, and villagers blamed her for police involvement. She lost her job as a result of social boycotts. On September 22, 1992, five men gang-raped Bhanwari Devi in retaliation. The injustice sparked national outrage. Women’s groups and activists, led by the organisation “Vishaka,” filed a Public Interest Litigation (PIL), seeking protection of women’s rights at the workplace under Articles 14, 15, 19, and 21 of the Constitution. This ultimately led to the landmark Vishaka Guidelines against sexual harassment at work.

 Hon’ble Supreme Court views and observations:

The Vishaka judgment’s ratio decidendi offers important legal ideas for several reasons: Sexual Harassment Violates Fundamental Rights: The Court ruled that sexual harassment violates the fundamental rights of equality, life, and dignity as protected by Articles 14, 15, 19(1)(g), and 21 of the Constitution, in addition to violating the right to physical contact. Any behaviour that is considered sexual harassment violates a woman’s right to live with honour and her dignity at work. Judicial Intervention Closing Legislative Gaps. 

The Supreme Court asserted that it could establish guidelines under Article 32—the Vishaka Guidelines—while exercising its inherent authority in the absence of a statutory provision on the matter to effectively protect women against sexual harassment. It is believed that this kind of judicial activism is both required under the Constitution and essential to safeguarding vulnerable populations. Employer’s Responsibility for a Safe Workplace. 

Importation of International Norms: The Court ruled that, for further protection, international conventions and treaties that India has ratified, such as those about women’s rights (such as CEDAW), might be incorporated into Indian domestic law.

Hon’ble Supreme Court Decision:

 In light of the above observations, the Supreme Court, in this case had held the following on 13^th August 1997:

In view of the absence of the enacted law, either civil law or penal law, to provide for the effective enforcement of the basic human right of gender equality and guarantee against sexual harassment and abuse, more particularly against sexual harassment at work places and the enactment of such specific legislation will take considerable time, the Supreme Court laid down the guidelines and norms specified hereinafter for due observance at all work places or other institutions, until a legislation is enacted for the purpose. This was done in exercise of the power available under Article 32 of the Constitution for the enforcement of the fundamental rights, and it was further emphasised that this would be treated as the law declared by the Supreme Court under Article 141 of the Constitution.

The guidelines and norms prescribed/ the Vishaka Guidelines, which would have to be mandatorily followed by the employers in workplaces, both in private and government sectors, to provide a mechanism to redress grievances relating to sexual harassment at the workplace. It was also stated that the Vishaka Guidelines do not prejudice any rights available under the Protection of Human Rights Act, 1993.

The Key Features of the Vishaka Guidelines Are Herein Below:

• It shall be the duty of the employer or other responsible persons in workplaces 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 the steps required;
• Definition of ‘sexual harassment’ has been prescribed: ‘Sexual Harassment’ includes such unwelcome sexually determined behaviour (whether directly or by implication) as:

• Physical contact and advances;
• A demand or request for sexual favours;
• Sexually coloured remarks;
• Showing pornography;
• Any other unwelcome physical, verbal or non-verbal conduct of a sexual nature.

• Preventive steps to be followed: All employers or persons in charge of the workplace, whether in the public or private sector, are under a responsibility to take appropriate steps to prevent sexual harassment;
• Criminal proceedings could be initiated in case of a specific offence: 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 the law by making a complaint with the appropriate authority. 
• Disciplinary action could be taken: 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 those rules;
• Establishment of appropriate complaint 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 organisation for redress of the complaint made by the victim. Such a complaint mechanism should ensure the time-bound treatment of complaints.
• Constitution of Complaints Committee: The Complaints Committee to be formed, which will look into the matters of sexual harassment of women at the workplace. The Complaints Committee was mandated to be headed by a woman employee.
• Submission of annual report: The Complaints Committee must make an annual report to the government department concerned about the complaints and action taken by them.
• Workers’ initiative: Employees should be allowed to raise issues of sexual harassment at workers’ meetings and in any other appropriate forum, and should be affirmatively discussed in employer–employee meetings;
• Awareness: Awareness of the rights of female employees in this regard should be created, in particular, by prominently notifying the guidelines (and appropriate legislation when enacted on the subject) suitably.
• Third-party harassment: When these incidents occur as a result of an act or omission by any third party or outsider, the employer and person in charge will take all necessary and reasonable steps to assist the affected person in terms of support and preventive action.

The POSH Act: A Legal safeguard for sexual Harassment:

The enactment of the Prevention of Sexual Harassment (POSH) Act in 2013 marked a significant milestone in India’s legal landscape concerning workplace harassment. This landmark legislation was a response to the pressing need for a comprehensive legal framework dedicated to combating sexual harassment in workplaces. The POSH Act aimed to strengthen the legal protections for employees, especially women, by providing a clear and robust mechanism to address instances of sexual harassment.

A key aspect of the POSH Act lies in its recognition and definition of the two main forms of sexual harassment: quid pro quo harassment and hostile environment. Over a decade since the introduction of the POSH Act, its impact has been significant in fostering a fair and protected work environment for women. The Act has facilitated a shift towards a more inclusive and gender-sensitive corporate culture, recognizing that a protected work environment is an inherent right of every individual, despite this watershed legislation many women continue to face barriers to reporting harassment, including stigma, fear of job loss, and distrust in the legal system, highlighting significant loopholes such as ambiguous definitions, inadequate coverage of non-traditional workspaces, insufficient provisions for third-party harassment, lack of effective whistleblower protections, and the need for streamlined redressal mechanisms. 

Beyond the POSH Act: Ongoing Reforms and Emerging Trends

The National Crime Records Bureau (NCRB) has been collecting data on sexual harassment at the workplace since 2014, categorizing it under the insult to the modesty of women (Section 509 of IPC) at office premises  As per the National Crime Records Bureau (NCRB) 2022 report, under the crime head of assault on women with intent to outrage her modesty, there were 85,392 cases registered in 2020, 89,200 in 2021, and 83,344 in 2022. Additionally, within this context, the number of cases registered under sexual harassment at work or office premises was notably lower, with 485 cases in 2020, 418 in 2021, and 419 in 2022. Recent amendments and progressive measures have sought to strengthen the protection of women’s rights and combat harassment effectively. Notably, the Criminal Law Amendment Act of 2013 introduced Section 354-A, specifically addressing sexual harassment, which complements the provisions of the POSH Act. 

Recognising the significance of gender sensitivity, the POSH Act emphasises regular training and awareness programs to educate employees about sexual harassment, its forms, and the avenues for redressal. Such initiatives play a vital role in challenging deeply entrenched cultural norms and empowering employees to understand their rights and responsibilities. 

Post Vishakha’s developments:

Apparel Export Promotion Council v. A.K. Chopra

The first case before the Supreme Court after the Vishaka Judgement. In this case, the Supreme Court reiterated the law laid down in the Vishaka Judgement and upheld the dismissal of a superior officer of the Delhi-based Apparel Export Promotion Council, who was found guilty of sexually harassing a subordinate female employee at the workplace. In this judgment, the Supreme Court enlarged the definition of sexual harassment by ruling that physical contact was not essential for it to amount to an act of sexual harassment.

Medha Kotwal Lele & Ors. v. Union of India & Ors.

In its judgement, the Apex Court observed that “the implementation of the Vishaka Guidelines has to be not only in form but also in substance and spirit to make available a safe and secure environment for women at work workplace in every aspect and thereby enabling working women to work with dignity, decency and due respect.”

Not being satisfied with the implementation of the Vishaka Guidelines, it directed the states to put in place sufficient mechanisms to ensure effective implementation of the Vishaka Guidelines.  The Apex Court also directed that the complaints committee, as envisaged in the Vishaka Guidelines, will be deemed to be an inquiry authority for the Central Civil Rules, 1964, and the report of the complaints committee will be deemed to be an inquiry report under those rules. 

CONCLUSION

In conclusion, India’s legal reforms addressing workplace sexual harassment, from the Vishaka guidelines to the POSH Act, represent significant strides in advancing women’s rights and dignity. However, effective implementation remains a challenge, necessitating regular gender sensitivity training as a non-negotiable aspect of workplace culture. By embracing an intersectional framework that considers gender, race, caste, and disability, India can create workplaces where all individuals are empowered to thrive. 

It is well established that ensuring safe working conditions for women leads to a positive impact on their participation in the workforce and increases their productivity, which in turn benefits the nation as a whole. Economically, empowered women are key to the nation’s overall development, and this can only be achieved if it is ensured that women’s workspaces across all sectors and all over the country have a safe and secure environment for work.

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