Men and women are like two wheels of the Chariot of Life. The term ‘sexual harassment’ means “a type of employment discrimination consisting in verbal or physical abuse of a sexual nature.”[i] In Vishaka v. State of Rajasthan,[ii] sexual harassment was defined as any unwelcome sexually determined behavior (whether directly or by implication) as physical contact and advances, a demand or request for sexual favors, sexually-colored remarks, showing pornography or any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
It has historically been a well kept secret practiced by men, suffered by women, condoned by management, and spoken by no one. It is a manifestation of power relations – women are much more likely to be victims of sexual harassment precisely because they lack power, are in a more vulnerable and insecure position, lack self-confidence, or have been socially conditioned to suffer in silence.[iii] The cases of sexual harassment of women at the workplace are increasing alarmingly because of several factors, poor status of women; increasing number of working women; poor knowledge of human relations and values; poor law and order position in the society and no adequate provisions of law to deal with the problem effectively. This issue is not just a women empowerment issue but an issue pertaining to Human Rights, Human Resource Management and safety and health of the workplace environment.
The prevailing forms of harassment at workplace include the sexual desire – dominance paradigm which conceptualizes the hostile work environment harassment. It was very important for the courts to recognize that gender discrimination can take the form of sexual overtures. The quintessential case of harassment involves a more powerful, typically older, male supervisor, who uses his position to demand sexual favors from a less powerful, female subordinate. Within this paradigm, heterosexual desire and male dominance are inextricably linked. Men use their dominant positions at work to extract sex from women, and this extraction of sex from women ensures their dominance. This sexual desire – dominance paradigm governs our understanding of harassment.
The Constitution of India ensures and guarantees every individual the right “to practice any profession, or to carry on any occupation, trade or business” as enshrined under Article 19(1) (g). Every woman has a constitutional right to participate in public employment and this right is denied in the process of sexual harassment, which compels her to keep away from such employment. Though this right is only available against the state, it is a recognized right in all the major international conventions. If any action, deed or remark abridges the enjoyment of this right, that act is not justified in any manner, unless it satisfies certain restrictions as imposed under article 19 (6). Sexual harassment of woman at the place of work exposes her to a big risk and hazard which places her at an inequitable position vis-à-vis other employees and this adversely affects her ability to realize her constitutionally guaranteed right under Article 19(1) (g).[iv]
Sexual harassment of women at workplace is also a violation of the right to life and personal liberty as mentioned in Article 21 that no person shall be deprived of his life or personal liberty. Right to livelihood is an integral facet of the right to life.[v] Sexual harassment is the violation of the right to livelihood. For the meaningful enjoyment of life under Article 21 of the Constitution of India, 1950, every woman is entitled to the elimination of obstacles and of discrimination based on gender. Since the ‘Right to Work’ depends on the availability of a safe working environment and the right to life with dignity, the hazards posed by sexual harassment need to be removed for these rights to have a meaning. The preamble of the Constitution of India contemplates that it will secure to all its citizens – “Equality of status and opportunity.” Sexual harassment vitiates this basic motive of the framers of the constitution.
The concept of gender equality embodied in our Constitution would be an exercise in ineffectiveness if a woman’s right to privacy is not regarded as her right to protection of life and liberty guaranteed by Article 21 of the Constitution of India.[vi] In view of the fact that sexual harassment of women at the workplace violates their sense of dignity and the right to earn a living with dignity, it is absolutely against their fundamental rights and their basic human rights.
The leading case pertaining to sexual harassment at workplace in India is Vishaka v. State of Rajasthan.[vii] In this case a social activist, Bhanwari Devi was alleged to be brutally gang raped in the village of Rajasthan. “The incident reveals the hazards to which a working woman may be exposed and the depravity to which sexual harassment can degenerate; and the urgency for safeguards by an alternative mechanism in the absence of legislative measures. In the absence of legislative measures, the need is to find an effective alternative mechanism to fulfill this felt and urgent social need.”[viii] In this case, the Supreme Court has categorically held that sexual harassment results in violation of fundamental rights of equality of sexes, of right life and liberty, and of the right to practice any profession or to carry on any trade or business.
Safe working environment is very much essential for the exercise of the fundamental right to practice any profession. The Supreme Court commented: ‘Gender equality includes protection from sexual harassment and right to work with dignity, which is a universally recognized basic human right.’[ix] The common minimum requirement of this right has received global acceptance. The court had to rely on international statutes and conventions due to the lack of development of the Indian legislations. In the absence of proper legislations pertaining to this field, the court took upon itself, to formulate effective measures to check the evil of sexual harassment of working women at all workplaces the contents of international conventions and norms are significant for the purpose of interpretation of Articles 14, 15, 19(1) (g) and 21 of the Constitution and the safeguards against sexual harassment and for the formulation of guidelines to achieve this purpose.
In the absence of the enacted law to provide for the enforcement of the basic human right of gender equality the Supreme Court in this case had laid down guidelines and norms for the observance at the workplaces and other institutions, until legislation is enacted. The survey conducted by the National Human rights Commission deals with only with government departments because it is the responsibility of the state to protect the rights of the women. It is found that more than 75%of departments had not set-up a Complaints Committee and have failed to enact policy on anti-sexual harassment policy.
Recently, the Ministry of Women and Child Development has prepared a draft entitled ‘The Protection of Women against Sexual Harassment at Workplace Bill, 2007’ to provide for the prevention and redressal of sexual harassment of women at the workplace and for matters connected therewith or incidental thereto. According to the draft bill, an aggrieved woman[x] may make a complaint of sexual harassment at workplace to the committee in writing.[xi] The Draft Bill also provides for compensation to the aggrieved woman. This is a commendable initiative taken by the legislative to provide for all the provisions in one act. This sexual discrimination is an important topic of concern.
Even though sufficient initiative has been taken by the government it is not enough. The bill though is a laudable step; it is still at the bill stage. The Indian justice system is not yet developed to provide justice to the aggrieved.The problem, therefore, needs to be examined in the context of rights for establishment of a just and equitable social order, where nobody can be treated or exploited by another as unequal.[xii] No law, custom, tradition, culture or religious consideration should be invoked to excuse the act of sexual harassment against any woman. Margaret Sanger said that “Woman must not accept; she must challenge. She must not be awed by that which has been built around her; she must reverence that woman in her which struggles for expression.
[i] Black’s Law Dictionary (9th Ed., 2009)
[ii] (1997) 6 SCC 241
[iii] Sexual Harassment: Gender! A Partnership of Equals, ILO, 58 (2000)
[iv] Surinder Mediratta, Handbook of Law, Women and Employment (1st ed, 2009).
[v] Narendra Kumar v. State of Haryana, JT, (1994) 2 SCC 94.
[vi] Mohini Jain v State of Karnataka, AIR 1992 SC 1858.
[vii] AIR 1997 SC 3011
[ix] Vishaka v State of Rajasthan, AIR 1997 SC 3011
[x] As per Section 2(a) of the Draft Bill, ‘aggrieved woman’ means any woman employee against whom any act of sexual harassment is alleged to have been committed.
[xi] Section 7 of the Draft Bill.
[xii] A.S.Anand, Justice for Women-Concerns and Expressions (3rd Ed, ULP), 2008, 23.
Article by –
Jayshree Dugar and Yash Vardhan Deora
Students, BBA. LLB,
National Law University, Orissa
[Submitted as an entry for the MightyLaws.in Blog Post Writing Competition, 2011]