In 1992, Bhanwari Devi, a dalit woman employed with the rural development program of the Government of Rajasthan, was brutally gang raped on account of her efforts to curb the then prevalent practice of child marriage of a one-year old girl in the community.3 This incident revealed the hazards that working women were exposed to on a day to day basis and highlighted the urgency for safeguards to be implemented in this regard. . Based on the facts of Bhanwari Devi’s case, a Public Interest Litigation (PIL) was filed by Vishaka and other women groups against the State of Rajasthan and Union of India before the Supreme Court of India. It proposed that sexual harassment be recognized as a violation of women`s fundamental right to equality and that all workplaces/establishments/institutions be made accountable and responsible to uphold these rights.
Some Other Judgments- Post Vishaka judgement
- Apparel Export Promotion Council v. A.K Chopra – 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.”
- Medha Kotwal Lele & Ors. V. Union of India & Ors.– 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.’
Finally, the Supreme Court asserted that in case of a non-compliance or non-adherence of the Vishaka Guidelines, it would be open to the aggrieved persons to approach the respective High Courts
India signed and ratified convention on elimination of all forms of discrimination against women, but lacked a domestic law to this regard. So this was to assimilate the international obligation in India legal system.
Under this Act “sexual harassment” includes the following unwelcome acts or behaviour (whether directly or by implication)
- physical contact and advances;
- a demand or request for sexual favors;
- making sexually colored remarks;
- showing pornography;
- any other unwelcome physical, verbal or non-verbal conduct of sexual nature;
WORK PLACE INCLUDES-
- any department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit which is established, owned, controlled or wholly or substantially financed by funds provided directly or indirectly by the appropriate Government or the local authority or a Government company or a corporation or a co-operative society;
- any private sector organisation or a private venture, undertaking, enterprise, institution, establishment, society, trust, non-governmental organisation, unit or service provider carrying on commercial, professional, vocational, educational, entertain mental, industrial, health services or financial activities including production, supply, sale, distribution or service;
- hospitals or nursing homes;
- Any sports institute, stadium, sports complex or competition or games venue. whether residential or not used for training, sports or other activities relating thereto;
- any place visited by the employee arising out of or during the course of employment including transportation provided by the employer for undertaking such journey: >aces visited by employee during the course of employment;
- a dwelling place or a house.
The definition of an ‘employee’ under the POSH Act is fairly wide to cover regular, temporary, ad hoc employees, individuals engaged on a daily wage basis, either directly or through an agent, contract labourers, co-workers, probationers, trainees, and apprentices, with or without the knowledge of the principal employer, whether for remuneration or not, working on a voluntary basis or otherwise, whether the terms of employment are express or implied.
A “domestic worker” means a woman who is employed to do the household work in any household for remuneration whether in cash or kind, either directly or through any agency on a temporary, permanent, part time· or full time basis, hut does not include any member of the family of the employer
While we would like to believe that with the enforcement of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 since December 2013, the number of cases would have decreased, the statistics provided by the National Crime Records Bureau indicate the opposite-
- 38% women had faced sexual harassment at workplace
- 2% of the women reported that the company do not follow the protocol laid in this Act
- 70% women do not report sexual harassment at their work place
- 40% of IT and 50% of ad and media companies oblivious to law.
How to make a complaint-
Any aggrieved woman may make, in writing, a complaint of sexual harassment at workplace to the Internal Committee if so constituted, or the Local Committee, in case it is not so constituted, within a period of three months from the date of incident and in case of a series of incidents, within a period of three months from the date of last incident. t where such complaint cannot be made_ in writing, the Presiding Officer or any Member of the Internal Committee or the Chairperson or any Member of the Local Committee, as the case may be, shall render all reasonable assistance to the woman for making the complaint in writing:
Where the aggrieved woman is unable to make, complaint on account of her physical or mental incapacity or death or otherwise, her legal heir or such other person as may be prescribed may make a complaint under this section.
Punishment and compensation
This Act prescribes the following punishments that may be imposed by an employer on an employee for indulging in an act of sexual harassment:
- punishment prescribed under the service rules of the organization;
- if the organization does not have service rules, disciplinary action including written apology, warning, reprimand, censure, withholding of promotion, withholding of pay rise or increments, terminating the respondent from service, undergoing a counselling session, or carrying out community service; and
- deduction of compensation payable to the aggrieved woman from the wages of the respondent
The Act also envisages payment of compensation to the aggrieved woman. The compensation payable shall be determined based on:
- the mental trauma, pain, suffering and emotional distress caused to the aggrieved employee;
- the loss in career opportunity due to the incident of sexual harassment;
- medical expenses incurred by the victim for physical/ psychiatric treatment;
- the income and status of the alleged perpetrator; and
- feasibility of such payment in lump sum or in installments
REQUIREMENT OF THIS LAW:
- gender equality at workplace
- for inclusive growth and social development
- to get rid of hostile environment at workplace
- to protect fundamental right –
- right to equality
- Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.
- Freedom of speech
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