Tackling Sexual Harassment in India
Bhanwari Devi was gang-raped in 1992. In 1997, the Supreme Court of India laid down the Vishaka Guidelines. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 then superseded these guidelines. Finally, on 4 January 2018, a bench headed by Chief Justice Dipak Misra issued notice to all the states and Union Territories regarding their responses on a plea seeking implementation of the provisions of the Act.
The petition filed by NGO Initiatives for Inclusion Foundation stated that state and central government agencies have failed to comply with the rules by not setting up the grievance committees, i.e. the Local Complaints Committees (LCC). In its petition, the NGO contended that none of the States are fully in compliance of the law.
Almost half a decade into passing of the Act, the question remains: why have the Union and the states failed to implement the law? Why has the government not constructively worked towards protecting the rights of women by ensuring a safe working environment? Why must a bell be rung over the heads of the administration for them to adhere to the principles set out by the Constitution of India itself? Why is an act, integral to the life of women throughout the nation, not being paid heed by the government?
The aim of this article is to enlighten the readers about the constitutional rights that the Sexual Harassment of Women at Workplace Act, 2013 envisages to protect. This is to highlight the importance of the legislation in not only in acting as a safeguard for women, but also in keeping the ideals of the Constitution alive.
"Article 15(3) of the Constitution recognizes systematic discrimination against women and authorizes the state to make special provisions for women and children."
As indicated by the title of the same, the Act lays down the legal mechanism to protect, prevent, and redress complaints of sexual harassment and matters connected therewith or incidental thereto. Hence, it is an instrument to prevent violation of the fundamental rights of 'Gender Equality', the 'Right of Life and Liberty’ and other rights enshrined in the Constitution. Article 15(3) of the Constitution recognizes systematic discrimination against women and authorizes the state to make special provisions for women and children. This allows the state to make provisions under the umbrella of protective discrimination such as the Sexual Harassment of Women at Workplace Act, 2013. Thus, the Act goes on to safeguard the rights of women to be treated equally as men, have the equal protection laws in the territory of India and not face discrimination based on sex under Article 14 and 15.
Sexual harassment at workplace also infringes the freedom 'to practice any profession or to carry out any occupation, trade or business' under Article 19(1) (g). The fundamental right to work depends entirely on the availability of a safe environment to practice this freedom. This right is violated when the working environment is any way hostile, abusive or aggressive to a woman’s safety.
"Gender discrimination has been recognized as an obstacle on the full realization of the Right to Life as under Article 21."
The courts have held that the Right to Life includes the right to live with human dignity such that rights that inherent to human beings, for example equality, dignity of a person and the right to development, are maintained. Thus, gender discrimination has been recognized as an obstacle on the full realization of the Right to Life as under Article 21.
Offences of sexual harassment are acts of aggression that are aimed at humiliating, degrading and cause distress to women. Therefore, sexual harassment at workplace is a direct violation of Article 21, as it implies right to dignity.
Coming under the purview of Article 21, the newly recognized constitutional Right to Privacy is also endangered by acts of sexual harassment at workplace. In the State of Karnataka v. Krishnappa, the Supreme Court held that "sexual violence apart from being a dehumanizing act is an unlawful intrusion of the Right to Privacy and sanctity of a female". In the State of Maharashtra v. Madhukar Narayan Mardikar, the court also held that "…even women of easy virtue are entitled to privacy and no one can invade their privacy.”
Apart from the rights recognized in the Indian Constitution that prompted the coming about of the Act which ‘filled the vacuum in existing legislation’, international conventions and instruments such as Convention on the Elimination of all Forms of Discrimination against Women, which has been ratified on the 25 June 1993 by the Government of India, recognizes the protection against sexual harassment and the right to work with dignity universally as human rights.
From the first and foremost Right to Equality to the recently upheld Right to Privacy, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 provides a legal recourse for victims of sexual harassment at work place. At grassroot levels, the working women, without the help of the government grievances redressal mechanism (the LCCs) will continue to suffer in silence unless appropriate steps are taken.
Section 6, THE SEXUAL HARASSMENT OF WOMEN AT WORKPLACE (PREVENTION, PROHIBITION AND REDRESSAL) ACT, 2013.
Through the RTI responses, it was only 5 States (Madhya Pradesh, Karnataka, Kerala, Chhattisgarh, Haryana) and 2 Union Territories (Dadar and Nagar Haveli, Daman and Diu) that had provided complete information.
2000 CriLJ 1793, JT 2000 (3) SC 516, 2000 (2) SCALE 610, (2000) 4 SCC 75, 2000 2 SCR 761, 2000 (2) UJ 919 SC
AIR 1991 SC 207
6 SCC 241; AIR 1997 SC
About the Author
Nisha Gupta is a budding lawyer, MUNer, and an avid Manchester United Football Club fan. Nisha graduated from DPS International School, and is currently pursuing B.B.A. LL.B. from National Law University, Jodhpur. With a flair for words, she takes a keen interest in expanding her horizons and outlook on life through reading, and for the lives of those around her, by writing (and talking a lot). Nisha enjoys putting her own creative twist on [boring] legal information to make sure she’s heard- and now- read.