Prevention of Sexual Harassment at Work (POSH) under Indian ecosystem - Introduction

The blatant and widespread phenomenon of rape and sexual assault are the commonly recognized forms of violence against women based on gender, while the subtler issue of sexual harassment at workplace can be more repressive and intimidating.[1] Generally speaking, sexual harassment is a behavior with a sexual connotation that is abusive, injurious and unwelcome. It places the victims in an atmosphere of intimidation, humiliation or hostility.

Apparently, the term “sexual harassment” came to be used in the public media only from 1975 onwards. Till then, there was no term to describe what is now universally called “sexual harassment”.[2] In India, the term ‘sexual harassment’ was first defined in a formal legal sense in 1997 by the Supreme Court in Vishaka v. State of Rajasthan[3]. The Supreme Court of India acknowledged the gravity of sexual harassment of the working women at the workplace and laid down guidelines[4] thus making it mandatory for employers to prevent the commission of acts of sexual harassment and also, to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment.[5]

16 years thereafter, India enacted the Sexual Harassment of women at workplace (Prevention, Prohibition and Redressal) Act, 2013 for prevention of sexual harassment against women at the workplaces.

It is important to note that the notion of ‘harassment’ dates back to the ancient times where women had been subjugated in the realm of education, infringing their right of freedom of speech and expression, exploitation at the workplace through various means and not getting adequate nutrition and financial means in order to sustain their livelihood. With regards to various women’s movements the notion of ‘zenana’ and ‘mardana’ have played a significant role where women were expected to behave in typical ways circumscribing to the rigid societal norms and were not allowed to participate in the public sphere.

The society has always remained patriarchal and with the evolution of the same Sylvia Walby (1997) has rightly mentioned that-

“It is a system of social structures and practices in which men dominate, oppress and exploit women.”

However, it is significant to cater to the fact that the notion of social structured oppression is not biological which implies that women are not naturally subordinated to men and also no social or legal sanction has been given to men proclaiming themselves to be superior and resulting to the act of subjugating the women.

Women have been transgressed since the very inception from their birth. The practice of female foeticide and female infanticide has been extremely prevalent in India leading to infringement of their Right to Life. They have faced atrocities at work place with respect to sexual harassment and getting the inadequate wages for their desired work.

Women’s health has also been neglected and not much primacy has been given to the same. The nutritional value of the women has also been affected by the socio-economic and socio-cultural dimensions where women were governed by stringent norms and were coerced to not participate in the allocation of the household resources which included access to quality food and health care facilities. Not only healthcare, women were not allowed to participate in the political framework as well. It is only after series of struggles that sanction of political and economic rights were granted to women.

The origin of women’s’ rights and feminist theories largely owe to the role played by the women in French Revolution. Women like Olympe de Gouges had played a pivotal role in establishing the notion of liberty, equality and fraternity. Even during the ‘ancient regime’ women were not given the right to express or participate in the public sphere and did not have a say in the realm of social, economic, political or religious matters. Under the spectrum of universal adult suffrage women were denied of their ‘Right to vote’ thus, extinguishing the basic essence of the movement. However, with the active part played by General de Gaulle and Popular Front women’s rights were given primary importance. The role played by the women in French revolution has also played a vital role in expanding the Republican ideas. With respect to the Historical framework the civil liberties movement in America also needs to be acknowledged where King Martin Luther was the main advocate for eradicating racial discrimination and championed for womens’ rights. The organizations such as Southern Christian Leadership Conference, the Congress of Racial Equality and the Student Nonviolent Coordinating Committee have played a significant role in challenging the ruthless and the unjust laws.Thus, contemporary women’s movement finds its origin from the historic past which has helped to incorporate within the present scenario.

Thus, there is no doubt that each incident of sexual harassment at the place of work results in violation of the fundamental right to gender equality and the right to life and liberty – the two most precious fundamental rights, guaranteed by the Constitution of India. I.P.C. 1860, C.P.C. 1908, Cr. P.C. 1973, Indian Evidence Act, 1872 along with many other special Acts and welfare legislations deal with this issue in one way or the other and provide for specific protection of women from such aberration.

Since sexual harassment results in violation of the fundamental right of women to equality as per Articles 14 and 15 and her right to live with dignity as mentioned under Article 21 of the Constitution, the Government of India by enacting the Sexual Harassment of women at workplace (Prevention, Prohibition and Redressal) Act, 2013, extended the Vishaka guidelines issued by the Supreme Court of India in 1997 and further for the first time, acknowledged sexual harassment at workplace as a human right violation.

Sexual harassment at workplace creates an insecure and hostile work environment, thereby discouraging women’s participation in work and adversely affecting their social and economic growth too. In spite of Constitutional provisions which provides every citizen the ‘right to practice or carry out any occupation, trade or businesses, which includes the right to a safe environment, free from all forms of harassment,[6] significant numbers of women are routinely subject to various kinds of sexual harassment at their workplace. It is because of traditional gender roles of our society, where women disproportionately occupy inferior position in the workplace and face intimate violations by men often.

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First in the series of our articles on the subject. Researched by Debasmita Goswami, Neelam Kejriwal, Lokesh Mewara and Tushar Mudgil under the guidance of Sayantan Dey.

[1]Ritu Gupta, Sexual Harassment at workplace: A detail study of the sexual harassment of women at workplace (Prevention, Protection and Redressal) Act, 2013,1(1st ed., 2014).

[2]AlokBhasin, Sexual Harassment at work, 3(2nd ed.,2015).

[3](1997) 6SCC241: AIR 1997 SC 3011

[4]The guidelines issued by the Hon’ble Supreme Court were treated as law declared by the Hon’ble Supreme Court under Article 141 of the Constitution of India.

[5]KhushbuSahu, “ Sexual Harassment of Women at workplace Act, 2013 : A half baked move to women’s safety at work” , LawZ , Vol 16 No. 4 Issue 176, April 2016 at 34.

[6]Article 19 (g) of Constitution of India.