By Anoushka Rawat

Abstract

A workplace with a conducive environment aids you in accomplishing your professional commitments and taking your career to new heights. But what if the same workplace becomes a living nightmare for you? When women, empowered with their newfound freedoms, dotted the corporate world they believed this would certainly bring about equality in every sense as they now would be working with their male counterparts. On the contrary, it led to the prevalence of several workplace-related sexual harassment cases against women. It might have opened new doors for women but it also gave rise to new spaces wherein women, daily, faced condescending, discriminatory remarks. For some, it became a place which they associated with their horrific ordeals. This article delves into the pervasive issue of sexual harassment of women at workplaces which can lead to grave physical, emotional and professional consequences. And, if not rectified, would impact the economy, in the long run. This article, essentially, walks the readers through the landmark Vishaka judgement which inspired government laws to formulate laws regarding such cases. Later, it looks into how other India’s neighbours, Bangladesh and Pakistan, have tackled the same. Lastly, it deals with the question- Is it high time to expand the scope of laws about sexual harassment of women at workplaces to men and other genders as well?

Introduction

Sexual harassment is a form of discrimination that takes place against a woman which comprises of “outraging her modesty” in a working environment. It also includes eve teasing, uncomforting gestures, comments and language which sexually violate a woman. Its impact goes beyond the office and hampers the rights and dignity of a woman. It affects a woman personally, as repeated episodes of sexual harassment would result in frequent absenteeism of the working woman and eventually she would lose her job either voluntarily or involuntarily. As per Deloitte’s annual ‘Women at Work’ report (2023), approximately 44% of women who participated in the survey that covered 5000 females across 10 countries have faced sexual harassment of varying intensity. These alarming figures do ring a bell in India.  Amongst the 30 Sensex-listed companies, there has been a 13% uptick in sexual harassment cases in FY2023 compared to cases filed in FY2020. And 83% of all the reported cases, narrowed down to just 11 of these companies. Such cases are rampant as sexual harassment often takes place in the form of a quid pro quo wherein, a person in power uses his authority to demand sexual favours from a woman in return for promised employment benefits, promotions, increments et cetera. This is where the legislature and the judiciary step in to fill this legal vacuum.

The Vishaka Guidelines and the  POSH Act

With regards to the Indian context, the debate on sexual harassment at workplaces opened up first in the 1990s when Bhanwari Devi (petitioner) filed a petition in the Supreme Court against upper caste men who gang-raped her whilst she was carrying out her profession of a social worker by preventing child marriage in Rajasthan. Earlier, she had also experienced eve-teasing by these narrow-minded individuals. This was a blindspot which was not addressed by the Indian Criminal Laws which still stuck with the British terminology of criminalising acts that “outraged or insulted the modesty of a woman”. With the landmark verdict of Vishaka and others versus the state of Rajasthan, the ball was set for the legislature to step in and draft laws revolving around those as mentioned earlier. Until the formulation of appropriate law, the judgement filled the vacuum and acted as a basic framework for the government to look up to. This was termed the Vishaka guidelines and was in place since the verdict was delivered in 1997 until the passage of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act (POSH Act) in 2013. 

The Act entails an elaborate procedure of redressal and grievance mechanisms against workplace-related sexual harassment cases, Firstly, it recognised the need to formulate a definition of sexual harassment which it verbatim adopted from the Convention on Elimination of All Forms of Discrimination against Women (CEDAW) to which India is a signatory to. CEDAW, apart from dealing with aspects of equality of women in the workplace, also works towards eliminating discrimination against women and pushing for equal rights and freedoms. The definition of sexual harassment comprises eight elements – physical contact and advances, a demand or request for sexual favours, sexually coloured remarks, showing pornography, any other unwelcome physical, verbal or non-verbal conduct of a sexual nature, any sexual acts carried out that are directly related to the victim’s employment or work, conduct that can be humiliating for the woman and lastly, any sexual conduct that affects the health and safety of a woman. Furthermore, it added that the creation of a non-conducive working environment as a result of nonconsensual sexual advances would also amount to sexual harassment.

Concerning the redressal mechanisms, the act provided two kinds of complaint mechanisms- the Internal Complaints Committee (ICC) and the Local Complaints Committee (LCC). Herein, every employer is obliged to establish an Internal Complaints Committee which would be approached first in case of sexual harassment cases within the the workplace. Secondly, the Local Complaints Committee is established in every district. It acts as a redressal platform for female domestic workers, women working in an organisation with less than employees and when she needs to file a complaint against the employer himself. The Internal Complaints Committee and the Local Complaints Committee are required to have 50% representation of women within the committees. 

Separately, right after the case was filed, the National Commission of Women was established in 1992 to review the constitutional and legal safeguards for women. It recommends remedial legislative measures, facilitates the redressal of grievances and advises the government on all policy matters affecting women. 

Looking beyond India: The Case of Bangladesh and Pakistan

Both Bangladesh and Pakistan tread on a path very similar to India’s. The big three of the South Asian region firstly, have a low female labour participation secondly, have high levels of patriarchal values often leading to discrimination against women and thirdly, brought in delayed laws about sexual harassment against women at workplaces. Similarly, the Vishaka guidelines, Bangladesh laid down directives through the landmark verdict of Bangladesh National Women Lawyers’ Association versus the Government of Bangladesh and others. It addressed the issue whilst the CEDAW and Vishaka guidelines were considered. These guidelines were passed in 2009 by the high court of Bangladesh but since then no progress has been made. Bangladesh still does not have legislation regarding sexual harassment in workplaces. Likewise in Pakistan, this grave issue had a delayed address. However in 2010, in pursuance of its international commitments to the Convention (CEDAW) and International Labour Organization Violence and Harassment Convention, Pakistan enacted the Protection Against Harassment of Women at Workplace Act. Despite this South Asia has the second lowest female labour force participation (at 25%). Moreover, 30-40% of South Asian women acknowledge suffering sexual harassment or indecent comments in the workplace. 

Expanding POSH’s scope

Considering that POSH specifically caters to women, it seems enough as it fails to have an inclusive approach to expanding its claws to cases of sexual harassment against men and other genders. There is no specific gender-neutral law addressing those mentioned above. This poses yet another anomaly as the law just assumes that such cases do not take place against anyone but females. Herein, the mindset of the society is at fault as if such cases take place against men, it would immediately question his “masculinity”. This is yet more difficult for other genders as the society still functions as per the binary gender system (male and female), others are simply not just recognised. Thus, making gender-inclusive laws and facilitating redressal mechanisms for all aggrieved persons is essential. 

Author’s Bio

Anoushka Rawat is a second-year student of Bachelor in Global Affairs at the Jindal School of International Affairs.