Parul, III year of B.A.,LL.B, from Banasthali vidyapith university Rajasthan
“You took away my worth, my confidentiality, my energy, my time, my security, my privacy, my trust, my own voice, until today.”
The very word “sexual harassment” was coined by Lin Farley in the mid-70s, justifying that the phenomenon of sexual harassment against women is centuries old, while misogyny and inequality are as old as the human race. In the late nineteenth and early twentieth centuries, surviving accounts of women in manufacturing and clerical roles often point to a number of ways in which men placed sexual relationships on women who worked for or with them, ranging from abuse to all kinds of unwelcome physical or verbal advances. In India, even during the time of the “MeToo” campaign, where survivors shared their experiences and contributed to the collapse of various public figures worldwide, in politics, commerce, trade, the entertainment industry, and beyond, the topic of sexual abuse has always been ignored. Even after that, the practise remains a depressingly widespread occurrence in the world. Sexual harassment cases can also have life-altering consequences, particularly when they include severe/chronic bullying and/or revenge against a survivor who does not respond to the harassment or who publicly complains about it.
The Supreme Court ruled in a judgement that sexual abuse of women at work is an affront to their basic right to equality and a life of dignity.
“Sexual harassment in the workplace is an affront to a woman’s fundamental rights to equality pursuant to Articles 14 and 15 and to her right to live with dignity pursuant to Article 21 of the Constitution, as well as to her right to practise any profession or to pursue any occupation, trade or business,” Justice D.Y. Chandrachud noted in a judgement on 25 February.
Sexual abuse at work is a totally intolerable criminal offence. No woman in every workplace should be subjected to sexual harassment. It is a breach of the right of women to freedom, life and liberty. It creates an atmosphere of insecure and hostile work that discourages the involvement of women at work, adversely affecting their social and economic empowerment and the objective of inclusive development.
Beyond only the harassing contact, the consequences of sexual assault are felt. There is no business that remains untouched or unaffected by the consequences of sexual assault. The lives, wellbeing, futures, financial independence and opportunities of the victims are impaired by sexual assault. In culture, it is a big problem that needs to be given further focus.
Sexual assault in the workplace is increasingly recognised in the world today as a violation of the rights of women and a form of violence against women. Although the official statistics for women’s work participation are poor, the official data records do not capture all of the work that women do. It is argued that if this is to be captured, the total representation of women at work will be 86.2 per cent. Although official figures indicate that women’s workforce participation rate is about 25.3% in rural areas and 14.7% in urban areas, estimates show that women’s workforce is enormous, so there is a need to protect their workplace and rights. Given that 93% of women employees operate in the informal sector, they remain unregulated by legislation. Proactive measures are needed to make their workplaces safe without laws or mechanisms to protect them.
An international treaty on women’s rights to which India is a party is the Convention on the Abolition of All Types of Violence against Women (CEDAW). This, along with the Supreme Court’s landmark decision upholding women’s rights at work, formed the basis for the 2013 SHAW Act. Discrimination against women is defined by the Convention as ‘any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise of women, irrespective of their marital status, on the basis of equality between men and women, on the basis of human rights and fundamental freedoms in the political, economic, social, cultural and social spheres. India is a signatory of CEDAW.
It took India 50 years to come up with a description of what constitutes sexual harassment at work because of a judgement of the Supreme Court 23 years ago in Vishaka vs. State of Rajasthan.6 The act uses the definition of sexual harassment as set out in the case of Vishaka. In the aftermath of a gang rape of a social worker (in Rajasthan) who had resisted such discriminatory practises, this judgement was passed. The object of the case changed from a criminal wrong to a systemic injustice of gender that required eradication.
Without any legislation at that time providing for steps to check the abhorrence of improper conduct experienced by women, the Supreme Court, in the exercise of accessible severity pursuant to Article 32 of the Constitution, enclosed rules to be practised in all work environments or foundations before an enactment has been formed for that purpose. The Supreme Court incorporated the universal principles of human rights enshrined in the Constitution of India, which the Government of India ratified in 1993. Furthermore, the Supreme Court’s instructions were to be regarded as the rule declared in Article 141 of the Constitution. However, the decisive factors were laid down as guidelines for Vishaka, which are as follows:
Physical touch or progression
A sexual favours argument or appeal
Make sexually coloured comments
Any unwelcome sexual activity that is physical, verbal or non-verbal.
The case of Vishaka was a path-breaking judgement delivered with the intention of establishing an empowering and stable working atmosphere for the rapidly growing female workforce.
These days are long gone when only men used to be the family’s main bread-winners. A drastic change in the role of women worldwide has been brought on by globalisation. Nevertheless, India also has a way to go on different indices of gender equality. Sexual harassment in the workplace has historically been split into two forms that are well known:
Quid Pro Quo (‘this for that’ literally)-
Implied or explicit guarantee in jobs of preferential/detrimental care .Implied or explicit threat to her current or potential work status
Climate for Hostile Jobs
Creating a work environment that is aggressive, threatening or offensive
Her wellbeing or welfare is likely to be compromised by humiliating treatment.
The successful implementation of the law regulating sexual assault at work plays a critical role at improving employee performance and ensuring a proper remedial process in place would result in a safer workplace being provided and would contribute to preventing the development of a hostile work atmosphere. However, there has always been minimal and limited understanding of the outcome and the consequences in relation to sexual assault at work. The enforcement of the SH Act is highly successful for the main purpose of ensuring that women have a voice to speak up without any apprehension in relation to their grievances, as well as ensuring that men are refined, respected and sensitive to the treatment of women in the workplace.
A universal issue!
Sexual assault has become a universal problem that has only evolved over time and, with so many stringent laws and extreme limitations, a vast number of incidents are still reported. Sexual harassment is not only physically confined to people, but it has also extended its spectrum across online channels. Over the past twenty-five to thirty years, the growing use of the internet has served as a forum for sexual abuse that has, until recently, gone largely unnoticed. Although the internet has provided today’s society with a number of advantages and benefits, its darker side has dramatically emerged as internet users are exposed on a regular basis to online discrimination, harassment, identity theft, cyber stalking and cyber bullying.
Need for the hour:
In the last few years, sexual assault concerns have escalated exponentially and have been covered in the Indian media. Every woman must feel comfortable at work, and it is high time for employers to take affirmative action to enforce zero-tolerance policies in their workplaces for sexual harassment in order to make her feel safe and protected, and to ensure that the allegation is investigated promptly and confidentially.
It is certain that many victims shy away from the attention, the processes, the delay and the harshness of the criminal justice system, but this alternative mechanism and method is welcome but requires a lot of improvements. Such areas of progress are helping the victims make educated decisions regarding the various resolution avenues, including qualified conciliators, arbitration opportunities through monetary compensation, an inquisitorial approach by the Committee, identifying the victim using terms such as plaintiff, etc., and not using her real name and in-camera trials.