The Evolution of Sexual Harassment Prevention in India: A Comprehensive Review

Introduction

Sexual harassment at the workplace is a pervasive issue that has affected women globally, necessitating robust legal measures for its prevention. In India, the foundation for addressing workplace sexual harassment was laid in the landmark Vishaka v. State of Rajasthan (1997) Supreme Court judgment. This article presents a comprehensive review of the historical development of sexual harassment prevention in India.

International Conventions and Early Legal Landscape

India, as a party to international conventions, has drawn from these agreements to shape its laws regarding gender equality, violence against women, and unwelcome sexually-determined behavior. Notably:

1. General Recommendation 19 to Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW): India incorporated aspects of gender equality, gender-specific violence, and unwelcome sexually-determined behavior into the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 (POSH Act).
2. International Labour Convention (No. C111): India's ratification of this convention in 1960 placed an obligation on the country to prevent and prohibit gender-based discrimination in the workplace.

Early Legal Framework

Before the introduction of the POSH Law in India, there was no specific legal remedy for addressing workplace sexual harassment. The only relevant sections of the Indian Penal Code, 1860, were:

1. Section 354 (Assault of criminal force to woman with 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 there by outrage her modesty, 1 [shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine].
2. Section 509 (Word, gesture or act intended to insult the modesty of a woman.): ection 509 IPC, as defined under the code states as, “Whoever intending to insult the modesty of a 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 three years, and also with fine”.?Sec 509 IPC is one of the most important sections of the Indian Penal Code. The object of this section is to protect the modesty and chastity of a woman. To establish an offence under this section, a person requires the following essential elements. These are as follows:

• Intention to insult the modesty of a woman,The insult must be caused-
• by uttering some word, or making some sound, or gesture or exhibiting any object or so as to be heard or seen by such woman, or
• by intruding upon the privacy of such woman.

Victims of workplace sexual harassment were compelled to approach the police to file a complaint. However, these legal provisions were often deemed insufficient, as exemplified in the case of Rupan Deol Bajaj vs. K.P.S. Gill (1995), where limited provisions of the Indian Penal Code did not adequately address sexual harassment. This legal gap underscored the urgent need for reforms in addressing workplace sexual harassment.

Defining Sexual Harassment

The Vishaka Guidelines addressed the need to define sexual harassment. Borrowing from the General Recommendation 19 to the CEDAW Convention, the guidelines defined 'Sexual Harassment' to include:

• Physical contact and advances
• A demand or request for sexual favors
• Sexually-colored remarks
• Showing pornography
• Any other unwelcome physical, verbal, or nonverbal conduct of a sexual nature
• Any sexual acts related to the victim's employment or work
• Conduct that humiliates the woman
• Sexual conduct affecting a woman's health and safety

With the introduction of Section 2(n) of the POSH Act, India established a comprehensive definition of sexual harassment, applying only to women. The Act also categorized certain working women as protected from sexual harassment at the workplace.

Determining the Workplace

As per Section 2(o) of the POSH Act, the term 'workplace' encompasses any place visited by an employee during employment, including employer-provided transportation for commuting. In Saurabh Kumar Mallick v. Comptroller & Auditor General of India (2008), three criteria were established to define what constitutes a workplace under the POSH Act:

1. Proximity from the place of work.
2. Control of management over the place/residence where the working woman is residing.
3. Residence as an extension or contiguous part of the working place.

Impact of Key Cases

Post the Vishaka case, two crucial cases further strengthened the legal framework for addressing workplace sexual harassment:

1. Apparel Export Promotion Council v. A.K. Chopra (1999): The Supreme Court upheld the dismissal of a superior officer for sexual harassment and expanded the definition to include any 'unwelcome' act, clarifying that physical contact is not always essential.
2. Medha Kotwal Lele & Ors v. Union of India & Ors (2013): The Supreme Court emphasized compliance with Vishaka Guidelines and empowered aggrieved persons to approach High Courts if these guidelines were not followed.

Impact of the POSH Law

The POSH Law has had a three-fold impact:

1. Prevention of Hostile Work Environments: Daily exposure to sexual advances and harassment can severely affect a woman's sense of security, health, and mental stability. The POSH Law, along with various judgments, has been instrumental in preventing such hostile environments.
2. Understanding Unwelcome Behavior: To address the subjective nature of unwelcome behavior, the POSH Law introduced a test based on both objective and subjective criteria to determine if unwelcome behavior occurred.
3. Quid Pro Quo Harassment: The law clarified that a demand for a sexual favor with threats of job-related consequences constitutes quid pro quo harassment, making it easier for victims to prove their cases.

New Dimensions to Workplace Sexual Harassment

With changing times, technology has introduced new dimensions to workplace sexual harassment. For example, threats to circulate explicit images through social media now constitute not only sexual harassment but also online abuse. Cases like this should be reported to the Internal Complaints Committee within organizations, recognizing that sexual harassment can occur through online platforms and social media.

Sexual Harassment as a Human Rights Violation

Recognizing the inadequacy of existing laws in addressing workplace sexual harassment as a human rights violation, the Supreme Court underscored the importance of the POSH Law. The Act is grounded in constitutional guarantees of the right to life and liberty, the right against discrimination, and the freedom to practice any profession without hindrance, all of which are available exclusively to women.

Conclusion

The POSH Act, now over half a decade old, has played a pivotal role in protecting working women in India from sexual harassment. It empowers women, instills confidence, and contributes to the removal of such incidents. Looking ahead, the focus should remain on eliminating workplace sexual harassment entirely and creating safe environments for all employees.

Disclaimer:

This article provides an extensive review of the historical development of sexual harassment prevention in India. It is intended for informational purposes and does not constitute legal advice. Laws and regulations may change over time, and specific cases may require tailored legal guidance. Readers are encouraged to consult legal professionals for individual concerns related to sexual harassment or other legal matters.