This article is written by Tulip Das, currently perusing BBA L.L.B(H) from Amity University Kolkata.
INTRODUCTION
“Forgetting it is difficult.
Remembering it is worse.”
Sexual harassment is one of the most committed crimes all over India. Some mentally sick wicked-minded people at the workplace always tend to harass employees working under them. One out of every four women and even men face such a problem at the workplace, irrespective of any profession. Harassing someone sexually is a grievous crime be it face-to-face or virtual. Nowadays, incidences of virtual harassment are vigorously coming up. Laws are unable to stop this crime. However, the concept of sexual harassment via virtual harassment is being taken seriously.
Sexual Harassment at Workplace
Sexual harassment is an unwelcome sexual advance, unwelcome request for sexual favours or other uncomfortable conduct of a sexual nature which makes a person feel offended, humiliated and intimidated, where a reasonable person would anticipate that reaction in the circumstances.
The Sex Discrimination Act of 1984 defines the nature and the circumstances in which the concept of sexual harassment is unlawful. It is also unlawful for the harassed victim for making or offering to make a charge of sexual harassment to the Human Rights and Equal Opportunity Commission.
Examples of sexually harassing behaviour include:
- unwelcome touching;
- staring or leering;
- suggestive comments or jokes;
- sexually explicit pictures or posters;
- unwanted invitations to go out on dates;
- requests for sex;
- intrusive and rude questions about a person’s private life or body;
- unnecessary familiarity, such as deliberately brushing up against a person;
- insults or taunts based on sex;
- sexually explicit physical contact; and
- sexually explicit emails or SMS text messages.
A working environment or workplace culture that is sexually pervaded or hostile will also amount to unlawful sexual harassment. Some of the circumstances emerging from the case law which may indicate a potentially hostile environment constitute the display of obscene or pornographic materials, general sexual ridicule, crude conversation or innuendo and offensive jokes.
Virtual Harassment
Virtual harassment can also be termed as cyberbullying or online harassment. This coronavirus pandemic has made work from home a necessity. However, this has brought home more virtual harassment than what used to before this 2020 pandemic. From online hackings to forced pornography to #MeToo Movements, all have been examples of virtual harassment. Although the camera and internet have helped build an informal work environment while smooth working, it has also brought home an old disease that hasn’t been cured yet, i.e., workplace sexual harassment.
This lockdown has not only moved the workplace to homes but in some cases, the harassment as well, say human resource consultants. Since March, when Covid-19 forced the country to stay indoors, it also compelled companies to shift to work from home (WFH) method. But with it have also come a new set of challenges — arise in complaints of virtual harassment.
This COVID-19 pandemic has made work from home a necessity. However, people are still being victims of sexual harassment in this virtual workplace. We often hear instances like an employee showing up shirtless to a virtual meeting with his manager, a woman. Then in another article, I read that, an employee takes screenshots of his female co-worker. Then at another virtual workplace, a manager insists that his colleague, a woman, attend an improvised 11 pm meeting and insists on her turning her video on and then continues to berate her when she refuses. When she finally does, she realises he is intoxicated. Sexual harassment at virtual workplaces are increasing day-by-day. On a regular basis we come across the following types of virtual sexual harassment at workplace: –
- Harassing: Repeatedly sending inappropriate, hateful, sexual, and hurtful messages.
- Outing: Sharing a victim`s secret or personal information in a public forum.
- Exclusion: Intentionally and publicly excluding a victim from the group and tormenting him/her or them after exclusion.
- Stalking: Electronically following someone and sending targeted messages with the intention of scaring, harming, or intimidating him or her.
“Home is an extended workplace now,” says Viji Hari, running a Chennai-based HR consultancy firm KelpHR. A survey conducted in the month of March by global research firm Gartner found that 88% of organisations world over have encouraged or required employees to work from home and that nearly 75% plan to move at least 5% of their previously onsite workforce to permanently remote positions post-Covid19, which would mean that it is imperative that companies re-look at what constitutes a workplace and by the expansion of what constitutes workplace harassment.
The Legal Ways
The Prevention of Sexual Harassment Act (POSH), 2013 defines harassment as ‘any unwelcome, sexually determined physical, verbal, or non-verbal conduct.
Personal and intimate comments on someone’s social media platform, inappropriate emojis and messages, stalking, both physical and virtual, bullying about performance ratings, insisting on having video calls after office work hours, inappropriate or sexist jokes to “lighten” the mood, not maintaining a dress code during video conferences and calls and undefined work hours.
It would also be pertinent to note here that since such an act of sexual harassment happens in cyberspace, i.e. on an electronic platform, an added layer of protection of the Information Technology Act, 2000 (IT Act) is also extended in this regard. Section 67 of the IT Act prescribes punitive measures for publishing and/or transmitting obscene content on an electronic platform. Section 67A provides punishment for publishing or transmitting material containing any sexually explicit act, in an electronic form. Such cases of online harassment can also attract penal provisions of Sections 354A, 354D or 509 of the Indian Penal Code, 1860. These provide punishment for a perpetrator who sexually harasses a woman by stalking her on the internet, and through his words or act or gesture intends to insult the modesty of a woman.
Section 354A of the IPC deals with Sexual harassment and punishment for sexual harassment. It states that –
- A man committing any of the following acts—
- physical contact and advances involving unwelcome and explicit sexual overtures; or
- a demand or request for sexual favours; or
- showing pornography against the will of a woman; or
- making sexually coloured remarks, shall be guilty of the offence of sexual harassment.
- Any man who commits the offence specified in clause (i) or clause (ii) or clause (iii) of sub-section (1) shall be punished with rigorous imprisonment for a term which may extend upto three years, or with fine, or with both.
- Any man who commits the offence specified in clause (iv) of sub-section (1) shall be punished with imprisonment of either description for a term which may extend upto one year, or with fine, or with both.
Section 354D of IPC talks about stalking. It says that –
- Any man who—
- follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman; or
- monitors the use by a woman of the internet, email or any other form of electronic communication,
commits the offence of stalking
Provided that such conduct shall not amount to stalking if the man who pursued it proves that—
- it was pursued for the purpose of preventing or detecting crime and the man accused of stalking had been entrusted with the responsibility of prevention and detection of crime by the State; or
- it was pursued under any law or to comply with any condition or requirement imposed by any person under any law; or
(iii) in the particular circumstances such conduct was reasonable and justified.
- Whoever commits the offence of stalking shall be punished on first conviction with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; and be punished on a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine.
Section 509 of IPC deals with words, gestures or act intending to insult the modesty of a woman. It says that –
Whoever, intending to insult the modesty of any 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.
CASE LAWS
Workplace sexual harassment in India, was for the very first time recognized by the Supreme Court of India in its landmark judgment of Vishaka v. State of Rajasthan (“Vishaka Judgment”), wherein the Supreme Court framed certain guidelines and issued directions to the Union of India to enact an appropriate law for combating workplace sexual harassment.
In the absence of a specific law in India, the Supreme Court, in the Vishaka Judgment, laid down certain guidelines making it mandatory for every employer to provide a mechanism to redress grievances pertaining to workplace sexual harassment which were being followed by employers until the enactment of the POSH Act.
The guidelines led down by the Supreme Court, in this case, are as follows:
- It is the duty of every employer to deliver a sense of security to every woman employee.
- The government should make strict laws and regulations to prohibit sexual harassment.
- Any act of such nature should result in disciplinary actions and criminal proceedings should also be brought against the wrongdoer.
- The organization should have a well set up complaint mechanism for the redressal of the complaints made by the victim and should be subjected to a reasonable time.
- This complaint mechanism should be in the form of complaint committee which needs to be headed by a women member and at least 50% of the committee members should be women so that victims do not feel ashamed while communicating their problems. This complaint committee should also have third-party involvement in the form of NGO or other body which is familiar with this issue. There is a need for transparency in the functioning of this committee and for that, there is a requirement of submission of the annual report to the government.
- Issues relating to sexual harassment should not be a taboo in the workers meeting and should be discussed positively.
- It is the duty of the organisation to aware the female employees about their rights by regularly informing them about the new guidelines issued and legislation passed.
- The employer or the person in charge is duty biased to take the necessary and reasonable steps to provide support to the victim if sexual harassment takes place due to the act or omission of the third party.
- These guidelines are not limited only to government employers and should also be followed by employers in private sectors.
These guidelines came to be known as the Vishaka Guidelines.
In the case of Saurabh Kumar Mallick v. Comptroller & Auditor General of India, the respondent who was facing departmental inquiry for allegedly indulging in sexual harassment of his senior woman officer contended that he could not be accused of sexual harassment at workplace as the alleged misconduct took place not at the workplace but at an official mess where the woman officer was dwelling. It was also argued that the one who complained was even senior to the respondent and therefore no ‘favour’ could be extracted by the respondent from the complainant and thus the act would not constitute ‘sexual harassment’. The Delhi High Court while considering this matter held this as ‘clearly misconceived’.
CONCLUSION
Information and Communications Technology as a whole has its own advantages but at the same time has the potential to be abused in a way that adversely affects the moral fabric of the society. The crime of sexual harassment in the cyber workspace is one such example of gross misuse of technology and needs to be curbed in an expeditious manner.
The practise of telecommuting has now been adopted in the face of the ongoing pandemic across the globe, including India. Due to the existence of undesirable elements in Indian society, women always face the danger of being subjected to sexual harassment/unwanted sexual advances, especially at the workplace. Despite the protection of POSH Act, the current conditions require a certain widening of its ambit. To quote the noted jurist and academician, Salmond, “The essence of law lies in the spirit, not in its letter, for the letter is significant only as being the external manifestation of the intention that underlies it”.
Sexual harassment at the workplace is highly prevalent in India and there is a need to provide a positive environment to the women workers. The government should make separate laws dealing with this issue. It should also realize that women worker also constitutes a part of the working population in India and it’s the duty of the government to provide them security at work. New strategies should be made by the employers and managers to protect the organisation from this wrongdoing. Government and employers should ensure that women should be treated equally and gender discrimination should not take place at the workplace. Effective implementation of the policies can reduce the manifestation and mutilation of sexual harassment to the minimum. One organisation can modify its approach to handle sexual harassment by viewing other organisations tactic. This will reduce or eliminate glitches caused by this harmful transgression. The government should understand that separate laws may not bring about equality in gender relations but a law dealing with sexual harassment would provide women with immense support in their struggle. At last, we want to say that women should not accept anything as it is because now it’s the time to speak out against all the injustice done to them
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