Overview: Sexual Harassment at Workplace | Criminal Law - CLAT PG PDF Download

Introduction

Sexual harassment in the workplace is a significant issue that transcends geographical boundaries, affecting individuals in developed, developing, and underdeveloped nations alike. The term 'sexual harassment' encompasses a range of unwelcome behaviors of a sexual nature that create an offensive, humiliating, and intimidating environment for individuals at work.

Understanding Sexual Harassment

• Sexual harassment refers to any unwelcome conduct of a sexual nature that makes the workplace hostile or uncomfortable. This can include actions that are offensive, humiliating, or intimidating.
• Examples of clear sexual harassment include:
• Unwanted Kissing: Forcibly kissing someone without their consent.
• Touching: Inappropriate touching of intimate body parts, such as breasts or genitals.
• Butt Slapping: Slapping someone's buttocks without consent.
• Sexual Rubbing: Rubbing oneself sexually against another person.
• Requests for Sexual Favors: Asking someone for sexual favors in exchange for something.
• Sexually Explicit Comments: Making vulgar or sexual remarks about someone.
• Uninvited Massages: Giving someone a massage without their permission, especially in a sexual manner.
• Catcalls: Making lewd remarks or sounds towards someone in a sexual way.

Understanding Sexual Harassment in the Workplace

Recognizing the different forms of sexual harassment is essential for addressing this widespread issue in workplaces globally. Often, subtle forms of harassment are overlooked by employees, yet they can cause significant distress. These include:

• Compliments about appearance
• Comments on others' attractiveness
• Discussions or inquiries about someone's sex life
• Spreading sexual rumors
• Making sexual jokes or remarks
• Circumventing nude photos

Legal Framework to Address Sexual Harassment at the Workplace

The legislative framework in India has taken significant steps to make sexual harassment illegal and protect victims through various legal provisions across different statutes. Here are the key legal instruments:

Indian Constitution

• Every instance of sexual harassment violates the fundamental rights enshrined in the Constitution.
• Article 14 and 15 advocate for an equal and non-discriminatory environment.
• Article 19(1)(g) ensures the right to work in any profession or occupation.
• Article 21 guarantees the right to life with dignity and liberty, emphasizing the need for a safe environment for all genders in their respective professions.

Indian Penal Code

• The Criminal Law Amendment Act, 2013, introduced Section 354-A in the IPC, defining sexual harassment and related offences along with prescribed punishments.
• Sections 354-A to 354-D outline various forms of sexual harassment, such as unwelcome physical contact, explicit sexual overtures, demands for sexual favours, and voyeurism.
• Penalties under these sections range from 3 to 7 years of imprisonment, along with fines.

Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013

• The Act was enacted based on the Vishakha Guidelines issued by the Supreme Court to ensure women's safety in workplaces.
• It mandates the prevention, prohibition, and redressal of sexual harassment in all workplaces, including organized and unorganized sectors.
• Residential spaces, such as homes for domestic workers, are also considered workplaces under this Act.
• The Act imposes greater responsibilities on employers to protect employees and take action against sexual harassment.
• Workplaces with more than 10 employees are required to establish an Internal Complaints Committee (ICC) and a Local Complaints Committee (LCC) in each district.
• Complaints must be resolved within 90 days, and punishment for violations can range from 1 to 3 years of imprisonment and fines.

Filing a Complaint under the Indian Penal Code (IPC)

Registration of FIR

• The victim of sexual harassment can inform the police about the crime either orally by visiting the police station in person or through telephone.
• The police officer receiving the information is obligated to register the offence. If they fail to do so, they may face legal consequences. Ideally, the police officer should be a woman or any woman officer.
• In cases where the victim is disabled, the recording of information can be done at the victim's residence or at a location of their choice.
• If the officer in charge of the police station refuses to register the FIR, the informant can approach the superintendent of police of the concerned district.
• If both the local police station and the superior officer refuse to register the FIR, the informant can approach the Magistrate seeking direction to investigate the matter, usually in the form of an affidavit.
• Even if the Magistrate declines to direct such an investigation or the police remain inactive, further actions can be taken by filing a Writ Petition or Petition for direction before the concerned High Court, requesting the registration of the FIR.

Complaint to Judicial Magistrate

• A victim or any person aware of the commission of sexual harassment can file a complaint under section 200 of the Criminal Procedure Code (CrPC).
• The Magistrate, upon receiving the complaint, examines the complainant and any witnesses, reducing the examination to writing and signing it along with the complainant and witnesses.
• If the Magistrate finds sufficient grounds to proceed with the case, they will issue summons to the accused and initiate inquiry and trial.
• If the Magistrate refuses to issue a process and dismisses the complaint, the aggrieved person has the option to approach the sessions court by filing a revision petition.

Complaint Filed Under Both POSH and IPC

• POSH(Prevention of Sexual Harassment at Workplace) and IPC(Indian Penal Code) both address sexual harassment, but their scopes differ.
• IPC has a broader coverage, applicable beyond workplaces, while POSH is specific to workplace settings.
• IPC penalizes offenses, whereas POSH provides remedies.
• Complaints can be filed under both POSH and IPC to seek different types of relief based on individual needs.

Case Laws

Encouragement for Women to Register Complaints

• Judgments in various cases have motivated women to come forward and file complaints regarding sexual harassment.

Vishakha v. State of Rajasthan

• Bhanwari Devi, a social worker, faced gang rape for attempting to prevent a child marriage.
• The Supreme Court recognized sexual harassment as a violation of fundamental rights.
• The court established the Vishakha Guidelines to prevent sexual harassment in workplaces.
• Key Points of the Guidelines:
  • Employers must ensure a sense of security for women employees.
  • Regular awareness about women’s rights is essential.
  • Criminal proceedings should be initiated against wrongdoers.
  • A robust complaint mechanism for victims is necessary.
  • Support for victims of third-party harassment should be ensured.

Apparel Export Promotion Council v. A.K. Chopra

• A.K. Chopra, Chairman of PSU Export Council, was found guilty of sexually assaulting a subordinate.
• Despite his attempts to apologize, the Supreme Court upheld his dismissal for sexual harassment.

Medha Kotwal Lele v. Union of India

• This case facilitated the implementation of Vishakha Guidelines by directing states and union territories to take necessary actions.
• It encouraged more women to speak out about their experiences of sexual harassment.

Recent Instances

• Instances of women coming forward with complaints have increased.
• The Supreme Court awarded compensation to an ex-intelligence officer for mishandling her sexual harassment complaint.
• This reflects a positive trend in addressing sexual harassment cases.

Situations in Other Countries

• Australia: Companies can be held vicariously liable for employee sexual harassment.
• Britain: The Sex Determination Act prohibits sexual harassment, including for transsexual individuals.
• Zimbabwe: Sexual harassment is considered an unfair labor practice under the Labour Relation Act.
• Denmark: Treats men and women equally regarding sexual harassment, focusing on status imbalance.
• Brazil: Deals with harassment under civil law, differing from many other countries.

Conclusion

Workplace harassment has become a critical concern for both practitioners and researchers, as it significantly impacts effective workplace management and is a major source of work-related stress. Addressing sexual harassment goes beyond just implementing laws; it requires genuine efforts to overcome stereotypes, narrow-mindedness, and gender bias.