Diaspora of Women's safety at Workplaces in the Contemporary time
Everything that men have written about women should be viewed with suspicion because they are both the judge and the party. – Poulain de la Berra
The very famous #MeToo movement can be described concretely as a colossal mass movement that focuses on social liberation. The fundamental problem that the movement poses is sexual harassment and sexual assault. Feminist scholars argue that sexual harassment causes considerable harm to women as a group.[i]The nativity of this movement goes back to as early as 2006, when Tarana Burke started using this phrase. This phrase later gained momentum when an American actress Alyssa Milano, used it on Twitter in 2017. This movement has been welcomed and even celebrated by most of the women because it was time that a movement against the systematic misogyny comes into picture and that a majority of voices of the victims get heard against the sexual harassment. The famous hash tag has galvanized over the years and has trended in at least 85 countries across the world which proves the fact that the movement is not a gimmick. Women across the world have sought solidarity and empathy through social media by telling their harrowing experiences of sexual violence.
MEANING OF SEXUAL HARASSMENT
Sexual harassment or assault is a contravention of an individual’s integrity and freedom. Although categorized by a judge as “a personal proclivity, peculiarity or mannerism, raising a controversy underpinned by the subtleties of an inharmonious personal relationship”,[ii]sexual harassment can ruin the victim’s life. Essentially, sexual harassment is seen as an outcome of male dominated society where sexual harassment is inflicted by men in possession of power (political, economic, and physical) against women. Catherine MacKinnon says that men see women workers as sexual beings.[iii] The democratic constitutions of many countries have inculcated the principles of gender justice, equality and freedom, including India. Women were henceforth seen in all diasporas of life and the workforce. They had a head to head pace with the men. However, one of the pernicious effects of such development has been the occurrence of sexual harassment at work place, job sectors and educational fields. This ill effect is seen as a perpetration of inequality against women. According to official statistics, there is one reported case of a woman being molested or sexually harassed in India every 26 minutes. If unreported cases were to be included, it would be a matter of seconds rather than minutes. According to another survey, 68 per cent of women suffer mental harassment out of which 26 per cent suffer physical molestation.[iv]
One of the reasons why the status of women changed in India is globalization and because of it, women have also become the bread winners of the family. However, with the huge influx of women into the conventional workforce of India, the boundaries of sexual violence have outstretched assuming greater dimensions. As the #MeToo movement has gained momentum in India. The statistics of women being subjected to sexual violence is likely to balloon and burst up to show the bare reality out to the world. The damage caused by sexual harassment or assault is far reaching. Sexual harassment can constitute sexual assault and other criminal offences, as well as behaviour that are not covered by any law but is nevertheless unwanted and harmful.[vi]
Sexual Harassment refers to a conduct of sexual nature, which has neither been solicited nor invited by the complainant.[vii] The POSH Act defines ‘sexual harassment’ in line with the Supreme Court’s definition of ‘sexual harassment’ in the Vishaka Judgment. As per the POSH Act, ‘sexual harassment’ includes unwelcome sexually tinted behaviour, whether directly or by implication, such as (i) physical contact and advances, (ii) demand or request for sexual favours, (iii) making sexually coloured remarks, (iv) showing pornography, or (v) any other unwelcome physical, verbal or non-verbal conduct of a sexual nature.[viii] The Supreme Court of India defined sexual harassment to include ‘such unwelcome sexually determined behavior as physical contacts and advance, sexually coloured remarks ,showing pornography and sexual demands, whether by words or action. Such conduct can be humiliating and may constitute a health and safety problem; it is discriminatory when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment, including recruiting or promotion, or when it creates a hostile working environment.[ix] It should be noted that there are cases in other jurisdictions where women have been accused of sexually harassing men[x] and further, same sex harassment is also considered sexual harassment.[xi]
THE LEGAL BACKGROUND
There is no specific legislation promulgated that deals with sexual harassment in India. The sexual harassment at workplace is a kind of gender discrimination which violates the women’s fundamental right to equality and right to life that the Constitution guarantees under Article 14, 15 and 21 of the Constitution. The constitution of India not only recognizes fundamental rights but also by Article 32, the right to move to the Supreme Court for enforcement of the rights guaranteed under the Constitution of India. The courts in India are empowered to enforce International conventions that are not in consonance with the Constitution, if need be. For this purpose, they can take into account International conventions and treaties when interpreting the provisions of the Constitution.[xii] In the case of Vishakha, the supreme court of India took these provisions into account and the Beijing Statement of Principles of the Independence of the Judiciary 1995 and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) to lay down the law of sexual harassment.
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”) which was enacted by the Ministry of Women and Child Development, India in 2013 was India’s first legislation which specifically dealt with the issue of sexual harassment at workplace. The year 2013 also witnessed the promulgation of the Criminal Law (Amendment) Act, 2013 (“Criminal Law Amendment Act”) which criminalized offences such as sexual harassment, stalking and voyeurism. The Indian Penal Code (IPC) protects a woman against rape by imposing terms of imprisonment.[xiii]
The IPC also punishes a person for having sexual intercourse with a woman ‘against order of the nature’.[xiv] Section 294 of the IPC also provides that whoever, to the annoyance of others, does any obscene act in any public space, or sings, recites or utters any obscene song, ballad or words, in or near any public place, shall be punished with imprisonment of either description for a term which may extend to three months, or fine, or with both.[xv] Section 354 states that whoever assaults or uses criminal force against 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 may extend to two years, or with fine, or with both.[xvi] Section 509 also states that whoever, intending to outrage 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, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both.[xvii] Eve teasing amounts to a non- bailable offence under the Delhi Prohibition of Eve Teasing Act, 1998. The Human Rights Commission by the virtue of Human Rights Act, 1993, is empowered to investigate and provide compensation for human rights violations when instructed to do so by Supreme Court.[xviii] Under the Industrial Disputes Act, 1947, it is an unfair labour practice to discharge a person by way of victimization.[xix]
THE EVOLUTION OF THE LAW ON WORKPLACE SEXUAL HARASSMENT
Gender equality finds its origin from principles enshrined in the Constitution, in its Preamble, fundamental rights, fundamental duties and Directive Principles. However, for the very first time, workplace sexual harassment in India was recognized in the landmark case of Vishakha v. State of Rajasthan.[xx] It was in this milestone case that the Supreme Court laid down certain guidelines to the Union of India to enact a law appropriate enough to combat the issue of workplace sexual harassment. The POSH Act and Posh Rules were enacted 16 years after the judgment of the Vishakha case.
1. The Vishakha Judgment
The law pertaining to sexual harassment was implanted with the case of Vishakha v. State of Rajasthan[xxi]. This was the first case in the history where the first attempt was made to comprehensively deal with the matter and the rights in question of working women against sexual harassment in the workplace. The moving force behind these guidelines was the intervention of several feminist NGOs and women’s groups after the rape of Bhanwari Devi, who was raped as a punishment for carrying out government – sanctioned work. Given the unusual essence of the case, the Supreme Court invoked the constitutional provisions to prohibit sexual harassment of working women on the ground of violation of the rights to gender equality. The spirit in which this decision was given was that a woman has got every right to gender equality, and dignity and honour by the provisions of the Constitution, to work in an environment which is free from the shackles of sexual harassment and abuse. The Supreme court said that international conventions and norms were to be read with the fundamental rights guaranteed in the constitution in the absence of domestic law when there was no inconsistency between them.[xxii]
2. Apparel Export Promotion Council v. A.K Chopra
In Apparel Export Promotion Council v. A.K Chopra[xxiii] sexual harassment was committed by an employee who was at a higher rank against a lower ranking employee. In the judgment given, 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. The Supreme Court explained that “sexual harassment is a form of sex discrimination projected through unwelcome sexual advances, request for sexual favours and other verbal or physical conduct with sexual overtones, whether directly or by implication, particularly when submission to or rejection of such conduct by the female employee was capable of being used for affecting the employment of the female employee and unreasonably interfering with her work performance and had the effect of creating an intimidating or hostile work environment for her.”
3. Medha Kotwal Lele & Ors. V. Union of India & Ors
A letter written by 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.[xxiv] This letter was henceforth converted into writ petition, the Supreme Court took cognizance and undertook monitoring of implementation of the Vishaka Guidelines across the country by directing State Governments to file affidavits emphasizing on the steps taken by them to implement the Vishaka Guidelines.[xxv] In its judgment, the Supreme Court observed that “the implementation of the Vishaka Guidelines has to be not only in form but also in substance and spirit so as to make available safe and secure environment for women at workplace in every aspect and thereby enabling working women to work with dignity, decency and due respect.’’ The Supreme court was not satisfied with the implementation of the Vishakha, it directed the States to put in place ample structure to establish competent implementation of the Vishaka Guidelines. Finally, the Supreme Court affirmed that in case of a non-conformity or non-adherence of the Vishaka Guidelines, it would be open to the aggrieved persons to approach the respective High Courts.
In the case of Saurabh Kumar Mallick v. Comptroller & Auditor General of India,[xxvi] the respondent who was facing departmental inquiry for allegedly indulging in sexual harassment of his senior woman officer contended that he could not be accused of sexual harassment at workplace as the alleged misconduct took place not at the workplace but at an official mess where the woman officer was residing. It was also argued that the complainant was even senior to the respondent and therefore no ‘favour’ could be extracted by the respondent from the complainant and thus the alleged act would not constitute ‘sexual harassment’. The Delhi Court while considering this matter held this as ‘clearly misconceived’.
The Delhi Court observed that:
‘the aim and objective of formulating the Vishaka Guidelines was obvious in order to ensure that sexual harassment of working women is prevented and any person guilty of such an act is dealt with sternly. Keeping in view the objective behind the judgment, a narrow and pedantic approach cannot be taken in defining the term ‘workplace’ by confining the meaning to the commonly understood expression “office”. It is imperative to take into consideration the recent trend which has emerged with the advent of computer and internet technology and advancement of information technology. A person can interact or do business conference with another person while sitting in some other country by way of videoconferencing. It has also become a trend that the office is being run by CEOs from their residence. In a case like this, if such an officer indulges in an act of sexual harassment with an employee, say, his private secretary, it would not be open for him to say that he had not committed the act at ‘workplace’ but at his ‘residence’ and get away with the same. Noting the above, the High Court observed that the following factors would have bearing on determining whether the act has occurred in the ‘workplace’.
The POSH Act attaches significant importance to ensuring that the complaint and connected information are kept confidential because of the sensitivity attached to matters pertaining to sexual harassment. The POSH Act specifically stipulates that information pertaining to workplace sexual harassment shall not be subject to the provisions of the Right to Information Act, 2005. The POSH Act allows dissemination of information pertaining to the justice that has been secured to any victim of sexual harassment, without disclosing the name, address, identity or any other particulars which could result in the identification of the complainant or the witnesses.[xxvii] Disclosure of the justice secured could not only deter other individuals from engaging in acts of sexual harassment, but also instill in the minds of employees and public that the employer is serious about providing a safe work environment and harbours zero tolerance for any form of sexual harassment at the workplace.[xxviii]
ME TOO AND THE LIMITATION ACT
Section 354A(Sexual harassment), 354B (Assault or use of criminal force to woman with intent to disrobe), 354C (Voyeurism), 354D (Stalking) have been inserted in the Indian Penal Code in the year 2013. Henceforth, the complaints for incidents that took place prior to 2013 cannot be filed under this section. The same is extracted from Article 20(1) of the Constitution that comes as a fundamental right that has been guaranteed by the Constitution of India. Most of the accusations pertaining to #MeToo connect with a time period that is prior to 2013. And, therefore, such accusations cannot be filed under these sections (354A, 354B, 354C, 354D IPC) in the form of FIR if the alleged incident took place prior to 2013. In view of Section 354 of IPC, the punishment for this offence was enhanced from the maximum punishment of 2 years to the maximum punishment of 5 years. Thus, prior to 2013, the maximum punishment for this offence was only 2 years and because of this the limitation period for filing a complaint under Section 354 IPC was only 3 years. Thus, here again, if the accusation of #MeToo relates to an incident that took place prior to 2013, no such complaint would be legally tenable.[xxix]
Similarly, under section 509 of IPC, an offence that has been committed prior to 2013, the maximum punishment was fixed for a time period of 1 year (after 2013 Amendment, the maximum punishment for this offence is now 3 years), due to which the limitation period for taking cognizance of such offence was only 1 year. Hence, a complaint for an offence under this section would also not be plausible if the accusation relates to a period prior to 2013 which would be again be pertaining to court’s power to condone the delay.
Likewise, accusations made against Central Minister M.J. Akbar by journalist Ghazala Wahab relates to the year 1997, i.e., about 21 years back. It appears that she has not filed a police complaint against Akbar so far. But, if she decides to file a complaint against him, then it would be under Sections 354 and 509 IPC, going by the nature of her allegations, as seen in her original accusations made in an article in The Wire. Here again, her police complaint, as and when filed, would be barred by limitation; of course, this would be subject to condonation of delay, if any, by the court.
The #Metoo movement is applauded for trying to change the status quo. Social media and the #Metoo movement were applauded for furnishing a platform for women to spread awareness. Online movements have garnered much attention for allowing people to mass-self-communication. The #Metoo movement has started a conversation and is bringing positive change for women all over the world.
The final months of 2017 have seen the inception, especially of one that spread like a wildfire. The movement commenced and was relatable to most of the victims of sexual violence after when several Hollywood actresses have accused famed producer Harvey Weinstein of sexual harassment. The movement is an ongoing prevalent phenomenon on social media where its aim is to demonstrate the frequency and widespread of sexual harassment in all sectors of work, whereas the movement Media has been widely reporting on the movement and has given a platform to several women to speak their truths.[v]The issue of sexual violence has been infused in the different strata of the society which has permeated into the lives of women and girls and is deeply ingrained in our culture.
[i] Chomsky, N & Herman,E (2008) :Manufacturing Consent: Media and Propaganda. London : Random House. [ii] Corne v. Bausch and Lomb Inc D.C. Ariz (1975) 10 FEF cases 289 [iii] Catherine MacKinnon, Sexual Harassment of working Women, Yale University Press, New Haven (1979), pp. 151-4 [iv] D. K. Srivastava, ‘Recognizing Sexual Harassment as a Tort”, Hong Kong Lawyer (September 1999). [v] Nabila Nuraddin, ‘The Representation of the #Metoo Movement in Mainstream International Media’. [vi] House of Commons Women and Equalities Committee, ‘Sexual Harassment of women and girls in public places’. https://publications.parliament.uk/pa/cm201719/cmselect/cmwomeq/701/701.pdf [vii] O’Callaghan v. Loder and the Commissioner for main roads (1983) 3 NSWLR 89. [viii] Section 2(n) of the Prevention of Workplace Sexual Harassment Act. [ix] Vishakha and others v. State of Rajasthan 1997 (6) SC 3011. [x] Ray Chen v. Taramus Rus and Another (2002) 354 HKCU 1. [xi] Oncale v. Sundower Offshore Services Inc 523 US 75 (1998). [xii] Prem Shankar Shukla v. Delhi Administration AIR 1980 SC 1535. [xiii] Indian Penal Code, Section 375 [xiv] Indian Penal Code, Section 377 [xv] Indian Penal Code, Section 294 [xvi] Girdhar Gopal (1953) CrLJ 964 [xvii] Rupam Deol Bajaj and another v. K.P.S. Gill and another 1995 (6) SCC 0194. [xviii] Paranjit Kaur v. State of Punjab (1992) 2 SCC 131
[xxi] 1997 6 SCC 241: AIR 1997 SC 3011 [xxii] Minister for Immigration and Ethnic Affairs v. Teoh 128 ALR 353 [xxiii] (1999) 1 SCC 759 [xxiv] India’s Law on Prevention of Sexual Harassment at the Workplace [xxv] India’s Law on Prevention of Sexual Harassment at the Workplace [xxvi] Decided on May 9, 2008 [Citation not available] [xxvii] Section 16 of the Prevention of Workplace Sexual Harassment Act
[xxviii] Shivangi Prasad and Attreyi Mukherjee, Handbook on the law of Sexual Harassment at Workplace 179 (2015)
ABOUT THE AUTHOR
This blog has been authored by Alivya Sahay and Aditya Parihar who are 4th Year B.A., LL.B. (Hons.) students at Chanakya National Law University, Patna.
[PUBLICATION NO. TLG_BLOG_20_1504]