One of the foundations on which the whole construct of gender justice is based is the right to be protected from sexual abuse and attack.
Despite the fact that the nation’s constitutional obligations to women have been translated into numerous planning processes, legislations, initiatives, and services over the last six decades, a situational study of women’s social and economic status does not represent adequate improvement in any of the main human development indicators. Apathy in the system, inadequate community-based security systems, and an avalanche of crime against women are just a few of the major roadblocks to female empowerment.
Women have endured for centuries as a result of unwelcome sexual attention and offensive workplace conduct based on their gender. Rape and sexual abuse are the more obvious and well-known examples of gender-based violence against women, whereas Sexual Harassment can be more coercive and threatening. From being a “mere” social problem,
Sexual Harassment at Work has developed into a social malaise, as illustrated by regular coverage in the media. As a cause and effect, its many crippling effects become apparent on the entire weave of the social fabric in bold impressions both as a cause and a consequence It not only offends their dignity and right to work in a secure atmosphere, but it also violates their civil rights and basic human rights.
VISHAKA GUIDELINES: A NEW ERA FOR WORKPLACE SAFETY
There was no legislative definition of sexual harassment in India until 1997, despite the presence of several prominent judgments earlier that pinned down and brought to light the issue. Prior to 1997, any woman who was subjected to sexual assault at work had to file a complaint under either section 3543 or section 5094 of the Indian Penal Code. In each of these sections, the police officers on duty at the time of the incident were to interpret women’s modesty and outraging the modesty.
Furthermore, before Vishaka, neither civil nor criminal laws in India required workers or the individual in charge of the workplace to protect female employees from sexual harassment. The Court acknowledged Sexual Abuse at Work as a chronic problem for the first time in Indian judicial history. In Vishaka v. State of Rajasthan 5, the Hon’ble Supreme Court took the initiative to describe it in a formal legal manner. The Apex Court’s affirmative action was commendable, as it tried to fill the vacuum left by the lack of a suitable description of the subject. The description was nearly identical to that of CEDAW.
The Supreme Court’s goal in developing these guidelines was to ensure a reasonable, safe, and comfortable working atmosphere on the one side, and to fully eliminate circumstances or possibilities in which the protector might misuse his confidence and turn predator on the other. The court also stated that these guidelines would not infringe on any of the rights guaranteed by the 1993 Protection of Human Rights Act. This type of judicial interference was quite positive. The guidelines have a long-term effect on government departments and agencies. Gradually, the system began to embrace and enforce the aforementioned guidelines. Employers or those in charge of work areas, both public and private, were advised to take reasonable action to avoid sexual assault.
An analysis of the Sexual Harassment of Women at Work place (Prevention, Prohibition and Redressal) Act, 2013
After 14 years after the Vishaka decision and multiple draught bills on the subject, the President signed the ‘Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013′ on April 22, 2013. It was published in the Indian Gazette on April 23, 2013.
The Act not only represents India’s commitments under CEDAW, but it also represents the Apex Court’s initiative toward substantive legislation and safer working conditions for women. This reflects the daily toil, unwavering efforts, and workouts put in by a variety of organizations and civic-minded individuals.
This is a positive step towards recognition of women’s basic rights as human rights as included in the Vienna Accord 1994 and the Beijing Women’s Conference 1995.
POSH mandates the establishment of corporate Internal Complaints Committees (ICCs) to manage sexual harassment complaints. It also requires Local Committees to prosecute cases in the unorganized sector or where the claim is against the employer. Since there are less strict procedures and lower evidentiary burdens involved, ICC inquiries are intended to be a more convenient procedure than criminal courts. Furthermore, since ICCs are produced within the same toxic working environment and may include individuals who are familiar with the parties in question, there is a conflict of interest in the investigation’s impartiality.
It’s also unlikely that they’ll suggest any systemic improvements. As a result, if a sexual harasser realises that their employer is unlikely to take their complaints seriously, they are more likely to engage in hostile behaviour. It also means that the victim is less likely to speak out because of the possibility of retaliation.
POSH, on the other hand, treats sexual harassment as a separate violation of labour rights, rather than allowing for its intersectionality with other forms of misogyny. There are no special laws or aggravated penalties in place to protect victims of caste-based or economically manipulated sexual abuse in the workplace.
The Local Committee structure is fully inaccessible to women working in the informal sector, who are particularly vulnerable to exploitation. They are allowed to file a criminal case by law (POSH, Section 11(1)). Domestic staff do not even have the right to sue the individual respondent in civil court.
Therefore, there is a need for a robust anti-discrimination statute that includes government and administrative accountability to ensure equal conditions at work and equal access to public spaces. It is also important to investigate whether the constitutional protections alluded to in points (g) of Articles 15, 16 and 19(1) can be modified in order to specifically preclude discrimination in the private sector in particular with respect to housing and employment.
- Sexual Harassment Of Women At Workplace: A Brief Analysis Of The POSH Act, 2013 – Employment and HR – India (mondaq.com)
- Microsoft Word – Vishaka Guidelines.doc (nitc.ac.in)
- The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013|Legislative Department | Ministry of Law and Justice | GoI
- POSH ACT – Sexual Harassment of Women at Workplace (taxguru.in)
- FEDERATION OF AUSTRIAN INDUSTRY; CONDITIONS OF WORK DIGEST, VOL. 11, 1/1992, “COMBATING SEXUAL HARASSMENT AT WORKM,” ILO, GENEVA, P. 238.