INDIA : No redress for sexual harassment at the work place
December 29, 2013 :
INDIA: No redress for sexual harassment at the work place
Anjuman Ara Begum *
Sabita Lahkar, a Guwahati based female journalist called for a press
conference on September 10, 2003 demanding justice publicly for sexual
harassment at workplace. She was working as the Chief Sub-editor at a
vernacular daily /Amar Asom/. She alleged that her senior, editor in
chief and a well known literary figure in the state of Assam had
sexually harassed her for a period of three years. She registered a
case with the Assam State Commission for Women (case no: ASCW 44/2003)
and another with the Assam Human Rights Commission (case no: 4652/03)
and also sent letters to Press Council of India and to the Editors'
Guild of India seeking action. A few journalists arranged a protest
meeting in solidarity on September 10, 2003. She registered a FIR on
17 September, 2003 at the Paltan Bazar Police Station at Guwahati
(case number: 321/17-09-03, under section 354/509 of the Indian Penal
Code). The Assam Human Rights Commission acted on her petition and
ordered the management of /Amar Asom/ to constitute a redressal
committee in its office as per the guidelines framed by the Supreme
Court of India against sexual harassment at the workplace in 1997
(Vishaka vs State of Rajasthan and others, 1997 AIR 1997 SC 3011,
popularly known as the Vishaka case). The management accordingly
formed the redressal committee and Sabita was asked to depose her
statement. Her grievances were recorded. However, the person whom she
accused was not called for interrogation. Subsequently, a hostile work
environment made it hard for Sabita to continue her job. Financial
constrains had an adverse impact on her career and she remained
jobless for few years. The police did not investigate the case
properly in that the accused was never summoned for interrogation. Ten
years after her complaint, Sabita again wrote to the National Human
Rights Commission and issued a press statement entitled 'demanding
justice' on November 22, 2013, reminding everyone that she is still
there, waiting for justice.
Sabita's case is not the only one in the male dominated workplace in
India. Women constitute 48.46 percent of India's population. According
to the International Labour Organisation's Global Employment Trends
2013 report
, India's labour force participation rate for women was 29 in
2009-2010. Out of 131 countries with available data, India ranks 11th
from the bottom in female labour force participation. The low rank is
due to the cultural attitude, social norms and fear of sexual
harassment deterring women to take up certain professions in a country
like India. Eight percent GDP growth of the country required women
folk to join the workforce. This requirement is further encouraged by
women empowerment programmes, reservation policies and other reverse
discrimination initiatives.
With the women's entry into the work force, traditionally male
dominated sectors became shared space, minimising the social division
of labour based on gender. However, sexual harassment by co-workers
became an issue for female professionals. Physical, mental, verbal and
non-verbal sexual harassment at the workplace affects women's
performance as the experience is humiliating and unsafe.
The development of legal safeguards against sexual harassment of
women at the workplace is a recent phenomenon following the sexual
assault of a female in Rajasthan in 1990s. In 1992, Bhanwari Devi, a
female social activist was gang raped while working against child
marriage in a village near Jaipur in Rajasthan. Bhanwari Devi belonged
to an oppressed caste and was financially marginalised. In 1985, she
joined a women's development programme undertaken by government of
Rajasthan and later she became vocal against child marriage. As a
result of her opposition to child marriage, she became a target of the
dominant caste population in the village. On September 22, 1992, she
was gang raped by five men while working at a field along with her
husband. An FIR was filed and she refused to accept extra legal
settlement with money as compensation. In 1995, the District and
Session court delivered an order stating that dominant caste men could
not rape a women belonging to oppressed caste. The judgement provoked
nationwide protest and the women's organisations in the country
started campaigning for justice against sexual harassment at the work
place.
The gang rape left an irretrievable damage in Bhanwari Devi's life.
After her brutal gang rape, Bhanwari was ostracised by her community
and was not allowed to live in the village. She was considered as a
'bad' woman in the community and this impacted her children's
education and marriage prospects.
A women's group filed public interest litigation before the Supreme
Court of India claiming enforcement of fundamental right to equality,
right to life with dignity and the right to work and carry out a
profession under article 14, 19 and 21 of the Indian Constitution. In
1997, the Supreme Court of India passed its judgment in Vishaka vs.
State of Rajasthan and others, popularly known as Vishakha judgment
and framed elaborated guidelines to deal with the sexual harassment at
workplace.
The Constitution of the India guarantees gender equality, the right
to work with human dignity under articles 14, 15 19(1)(g), 42 and 21.
A workplace free from the fear of sexual harassment is implicit and a
pre requisite for gender justice. The Supreme Court of India noted in
the Vishakha judgment that the 'present civil and penal laws in India
do not adequately provide for specific protection of women from sexual
harassment in work places' and that 'the enactment of such legislation
will take considerable time'. Guidelines are meant to be followed by
the employers and establishments and recommended for the establishment
of internal complaint committee at the workplace to 'provide
procedures for resolution, settlement and prosecution for the acts of
sexual harassment' and suggested preventive measures. However, as
always, the guidelines remained on paper.
Implementation of the guidelines remained discretionary and no
mechanism was created to monitor its implementation. The majority of
the work places lack internal complaint committees. Recently
allegation of sexual harassment at the workplace was widely reported
in the media by a law intern and a female journalist. Both of them
alleged sexual harassment by their seniors while working with them.
The Supreme Court constituted a three member penal to investigate into
the case alleged by the law intern. The media house too invited a
eminent personalities to constitute an internal complaint committee.
This indicates that Vishakha guidelines were ignored by most of the
employers including Supreme Court.
The absence of proper mechanisms and uncertainty of justice compels
women in India to keep silence over sexual harassment for fear of
losing their jobs and character assassination. Hostile environments
after complaining of sexual harassment against their co-workers, often
force women to leave organisations and face financial insecurity.
A ray of hope could be that the guidelines framed by Supreme Court
has now received a legal shape and the Sexual Harassment of Women at
the Workplace (Prevention, Prohibition and Redressal) Act, 2013 was
passed in April, 2013 and rules for implementation of this Act were
notified on December 9, 2013.
Sexual harassment has been defined as sexually determined unwelcome
behaviour which may be direct or implied, 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 sexual nature.
A workplace would mean, any private sector organisation, hospital and
nursing home, sports institution, any place visited by the employees
in due court of the work, a dwelling house or workplace owned in
'unorganised sector'. And an 'employee' would mean any person who is
hired on permanent or temporary, /adhoc /or voluntary basis. Domestic
workers employed for household work are also covered by the Act.
The Act prescribes constitution of internal complaint committees
comprising of a female as the presiding officer and other members made
up of one third females. There should be another district level 'local
complaint committee' to receive complaints from workplaces with less
than ten employees. The Act also provides punishment for false or
malicious complaints.
However, under section 10 the Act provides for 'conciliation' before
the initiation of an inquiry giving a chance to the aggrieved woman to
settle the matter along with the accused. The Act prescribes that
monetary consideration cannot be a part of such settlement.
Considering the unequal position of women in the society, this
provision may be abused.
Being a state party to the Convention Against All Forms of
Discrimination against Women (CEDAW), it's also an obligation on
Indian Government to provide harassment free work environment to women
as a commitment to end discrimination against women committed by both
public and private actors. CEDAW defined sexual harassment at the
workplace to include 'unwelcome sexually determined behaviour as
physical contact and advances, sexually coloured remarks, showing
pornography and sexual demands, whether by word or action and equality
in employment can be seriously impaired when women are subjected to
gender specific violence, such as sexual harassment in the work
place'. The Sexual Harassment of Women at the Workplace (Prevention,
Prohibition and Redressal) Act, 2013 has compiled with this definition
of 'sexual harassment'. Mere adoption of a definition is not enough.
Several recommendations forwarded by CEDAW in 2007 are yet to be
accepted seriously by the policy makers of the country.
The cases of Sabita Lahkar and Bhanwari Devi indicate the complex
nature and neglect of the issue of sexual harassment at the
workplace arising out the unequal position of women in the society.
Sabita was a lower ranked employee and fell short to counter the
influential personality of her senior assaulter. As a result justice
was denied by the justice delivery system as Bhanwari Devi belonged to
a low income marginalised community. Even after years, justice remains
elusive for the aggrieved women who exhibited extra ordinary courage
and defied the culture of silence over sexual harassment.
It is a deep concern that the response of law enforcement mechanism
is frustrating and humiliating for women. Preliminary steps in
accessing justice, such as filing an FIR is often a big hurdle. The
legislative measures may not fill the gap as the fundamental concern
of its enforcement is often ignored. Despite having the best laws on
paper, implementation and enforcement of laws by agencies like the
police remains weak in India. The absence of women in decision making
positions at all levels makes it more difficult to implement gender
specific laws and policies.
Sexual harassment, or more generally, violence against women is a
result of deep rooted prevalence of direct, indirect, explicit or
implicit discrimination against women prevalent across cultures. Long
term, durable reformative policies in law enforcement architecture
aiming to ensure substantive equality for women need to be adopted.
Affirmative action like raising awareness on what constitutes sexual
harassment, encouraging complaints against abuses, enhancing the
capacity of institutions to investigate and prosecute complaints and
fast access to justice bring ensure dignity for every women
professional in India.
*/*About the author/*/: Anjuman Ara Begum is Program Officer - India
Desk at Asian Human Rights Commission and can be contacted at e-mail ( [email protected] )
About AHRC:
The Asian Human Rights Commission is a regional non-governmental
organisation that monitors human rights in Asia, documents violations
and advocates for justice and institutional reform to ensure the
protection and promotion of these rights. The Hong Kong-based group
was founded in 1984.
* This info was sent to e-pao.net by Asian Human Rights Commission (AHRC) who can be contacted at india(at)ahrc(dot)asia
This Press Release was posted on December 30, 2013
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