What is sexual harassment?
For the first time, behaviour that can be considered sexual harassment has been explicitly legally defined. The apex court judgment of 14th August'1997 contains guidelines prohibiting sexual harassment. As defined in the guidelines: "Sexual harassment includes such unwelcome sexually determined behaviour such as: Physical contact or advances A demand or request for sexual favours Sexual remarks Showing pornography Any other unwelcome physical, verbal or non-verbal conduct of a sexual nature."
To whom do these guidelines apply?
It is the duty of the employer or other responsible persons in work places or other institutions to prevent sexual harassment and to provide procedures for resolution of complaints. Women who draw a regular salary, receive an honorarium, or work in a voluntary capacity – in the government; private sector or unorganized sector come under the purview of these guidelines.
Must be undertaken by employers or other responsible authorities in public or private sectors as follows: Express prohibition of sexual harassment should be notified and circulated. Prohibition of sexual harassment should be included in the rules and regulations of government and public sector bodies. Private employers should include prohibition of sexual harassment in the standing orders under the Industrial Employment (Standing Orders) Act, 1946. Appropriate work conditions should be provided for work, leisure, health, and hygiene to further ensure that there is no hostile environment towards women at workplaces and no woman employee should have reasonable grounds to believe that she is disadvantaged in connection with her employment.
Employers must provide a Complaints Committee headed by a woman and not less than half of its members should be women. Complaints Committee should include an NGO or other organization that is familiar with the issue of sexual harassment. Complaint procedure must be time bound. Confidentiality of the complaint procedure has to be maintained. Complainants or witnesses should not be victimised or discriminated against while dealing with complaints. The Committee should make an annual report to the government department concerned of the complaints and the action taken by them.
When the offence amounts to misconduct under service rules, appropriate disciplinary action should be initiated. When such conduct amounts to an offence under the Indian Penal Code, the employer shall initiate action by making a complaint with the appropriate authority. The victims of sexual harassment should have the option to seek transfer of the perpetrator (from the existing place of work/department) or their own transfer.
Other provisions of the guidelines.
Sexual harassment should be discussed at worker's meetings, employer-employees meetings and other appropriate forums. Guidelines should be prominently notified to create awareness of the rights of female employees. The employer should assist persons affected in cases of sexual harassment by outsiders or third parties.
The following provisions in the IPC and labour laws are outlined below:
I. Indian Penal Code
Section 209, IPC - Obscene acts and songs - Whoever, to the annoyance of others:
a) does any obscene act in any public place or
b) sings, recites or utters any obscene song, ballad or words in or
near any public place
shall be punished with imprisonment of either description for a term
which may extend to 3 months or with fine or both.
Section 354, IPC - Assault or criminal force to a woman with the
intent to outrage her modesty - whoever assaults or uses criminal
force to any woman, intending to outrage or knowing it to be likely
that he will thereby outrage her modesty, shall be punished with
imprisonment of either description for a term which may extend to two
years, or with fine or both.
Section 509, IPC
Word, gesture or act intended to insult the modesty of a woman - whoever intending to insult the modesty of any woman utters any word, makes any sound or gesture, or exhibits any object intending that such word or sound shall be heard, or that such gesture or object shall be seen by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or both.
II.Industrial Disputes Act
Rule 5 Schedule 5 - Cases can (and have been) argued on the basis of
unfair labour practices listed in this schedule. Such cases can be
filed if an employee suffers unfair dismissal or denial of employment
benefits as a consequence of the rejection of sexual advances.
However, this would only be applicable in quid pro quo cases.
Civil suit – can be filed for damages under tort laws. That is, the basis for filing the case would be mental anguish, physical harassment, loss of income and employment caused by the sexual harassment.
III.Indecent Representation of Women (Prohibition) Act (1987)
Although it is not known to have been used in cases of sexual
harassment, the provisions of this act have the potential to be used
in two ways. First, if an individual harasses another with books,
photographs, paintings, films, pamphlets, packages, etc. containing
"indecent representation of women"; they are liable for a minimum
sentence of 2 years.
Second, a "hostile working environment" type of argument can be made under this act. Section 7 (Offenses by Companies) – holds companies where there has been "indecent representation of women" (such as the display of pornography) on the premises guilty of offenses under this act.