SEXUAL HARASSMENT AT WORKPLACE : LEGAL SAFEGUARDS UNDER INDIAN LAW.
Introduction.
India is developing rapidly in different sectors; lots of initiatives for educating the female child are being taken and we can even see the results as we have many women working today.Besides being highly educated, they have also made their careers in sports, theatre, actin and modelling.They can be seen working in an organised as well as an unorganised sector.Efforts are being made so that women get equal opportunities, face no discrimination or sexual harassment, and have a safe workplace environment.
An important piece of legislation in India The Prevention of Sexual Harassment of Women
at Workplace Act 2013 aims to prevent and address sexual harassment faced by women in the workplace.
What Comes under sexual harassment.
It Is essential that every individual as well as the organisation be aware of the behaviour that is considered sexual harassment. It is the responsibility of the employer to ensure that all employees are aware of what constitutes sexual harassment, the ules to be followed and the process of redress. Experiencing sexual harassment brings mnental agony to the woman subjected to it.
The Supreme Court of India, through the Vishaka Guidelines, has defined what can be considered sexual harassment at the workplace. As per the quidelines Sexual harassment ncludes such unwelcome sexually determined behaviour (whether directly or by implication) as:
physical contact and advance
a demand or request for sexual favours;sexually coloured remarks;
showing pornography; or
any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
From the foregoing, it can be inferred that the following behaviour constitutes sexual harassment.
1. Whenever an individual touches, hugs, pinches, or brushes against a person's body without permission, any such physical contact that is unwanted and makes a person upset, powerless or depressed can be considered unwelcome physical contact and advances.
2. Whenever an individual in an authoritative position demands or requests sexual favours in exchange for certain benefits, such as promotion, a rise in salary, job security, or other advantages.
3. Offensive and suggestive remarks, jokes or innuendos, statements or comments of a sexual nature that are inappropriate or teasing related to a person's body, appearance,or sexual orientation are considered sexually coloured remarks.
4. Obscene pictures, movies, videos, and posters are considered pornographic material; showing such pornographic material that offends someone is also sexual harassment.
5. SeXual harassment can occur through WhatsApp messages, SMS, and official e-mails.
Employee awareness.
Many times, not only the employer but also the employee, may It be male or female, are unaware of what constitutes sexual harassment and that action can be taken against the offender. In the year 2015, the Government of India Ministry of Women and Child Development published a"Handbook on Sexual Harassment of Women at Workplace", the purpose of which was to provide employers with a basic understanding of sexual harassment at the workplace. It says that it is obligatory on the part of every employer to provide a safe working place for a female employee; it is their responsibility to restrain, stop and provide remedial measures for such issues. In order to raise awareness, employers must:
• Frame and properly convey the policies of the organisation to address the problem.
• Organise POSH trainings for staff members once a year to advise them of the actions that constitute sexual harassment.
Training helps employees gain insight into potentially harassing activity and how it affects the victim.
Process for filing complaints.
The process for filing complaint as per Section 9 of the POSH Act is as follows:
The complaint of sexual harassment must be filed in writing with the ICC or LCC within a period of three months from the date of occurrence of the incident and If there are a series of incidents within three months from the latest incident. The ICC or LCC, depending on the situation, can extend the deadline up to 3 months if it is satisfied that the circumstances were such that they prevented the woman from filing a complaint.
• The presiding officer or any member of the Internal Committee or the Chairperson or any member of the Local Committee, as applicable, shall provide necessary support to help the aggrieved woman document the complaint in writing if she is not able to do so.
• If the aggrieved woman, due to physical or mental incapacity, death or otherwise, is unable to make a complaint, her legal heir or any other person authorised by law can make a complaint on her behalf.
According to the Handbook on Sexual Harassment of Women at Workplace, the following individuals may file a complaint on behalf of the aggrieved woman:
A relative, friend, co-worker, officer of the National Commission for Women or State Commissions for Women, or any person who is aware of the incident with the written consent of the victim can fille a complaint if the victim is physically incapable.
According to the provisions of the POSH Act, the inquiry will be conducted by the Internal Committee or the Local Committee if the complainant chooses a formal process of redressal. Within 90 days, the Internal Committee or Local Committee must conclude its investigation.
Punishment for sexual harassment.
There needs to be some repercussions for the wrongdoing ,the allegation against the respondent is proven, they must recommend to the employer:
• To take action as stated in the relevant policy or service rules, the action may include a warning to terminate.
• Deduction of an amount from the salary or wages of the respondent to be paid to the complainant or to her legal heirs.
Whenever there are no service rules drafted for the organisation, punishment may consist of disciplinary action, including an apology in writing, reprimand, warning, censure, withholding promotion or pay raise or increment, termination, counselling, or community service. We cannot deny the fact that there is always a possibility of a false complaint. The Act has provisions for penalties for false or malicious complaints and false evidence. The committee may suggest taking action against the complainant in accordance with service rules if the committee's investigation reveals that the accusations made against the respondent are
untrue or malicious or if the complainant has provided any counterfeit or deceptive documents.
CASE LAW.
The most significant case law for sexual harassment in the workplace in India is the Vishaka case (1997), which led to the landmark Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act). The Supreme Court's Vishaka judgment established that sexual harassment is a violation of fundamental constitutional rights and mandated the government to enact legislation to provide a safe working environment. The POSH Act later codified these directions, setting up a framework for prevention and redressal of workplace sexual harassment.
The Judgment:
The Supreme Court recognized that sexual harassment at work is a violation of fundamental rights, including the right to equality (Article 14), the right to life and dignity (Article 21), and the right to practice a profession (Article 19(1)(g)).
CONCLISION.
India has signed and ratified the CEDAW (Convention on the Elimination of all Forms of Discrimination against Women).
In 1997 as part of the Vishaka judgment, the Supreme Court drew upon the CEDAW and laid down specific guidelines on the prevention of sexual harassment of women at the workplace.
The Vishaka guidelines defined sexual harassment and codified preventive measures and redressal mechanisms to be undertaken by employers.
REFERENCES
The Prevention of Sexual Harassment of Women at Workplace Act 2013 (POSH ACT ).
Indian Penal Code
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