The Genesis
Bhanwari Devi
The rape that led to India ' s sexual harassment law
Vishaka and Ors. v. State of Rajasthan
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Vishaka and Ors. v. State
Chief Justice J.S. Verma presided over the Supreme Court bench delivered the landmark Vishaka judgment in 1997, which established guidelines for preventing and addressing sexual harassment at the workplace. The judgment, now known as the "Vishakha Guidelines, " defines sexual harassment, outlines employers' responsibilities to prevent it, and provides a framework for redressal mechanisms.
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The Vishakha Case
In India, before 1997, there were no formal guidelines for how an incident involving sexual harassment at workplace should be dealt by an employer. Women experiencing sexual harassment at workplace had to lodge a complaint under Section 354 of the Indian Penal Code( Now Bhartiya Nyaya Sanhita) that deals with the ' criminal assault of women to outrage women ' s modesty ' and Section 509 that punishes an individual or individuals for using a ' word, gesture or act intended to insult the modesty of a woman '. These sections left the interpretation of ' outraging women ' s modesty ' to the discretion of the police officer
The Vishakha Guidelines
The judgment, commonly referred to as the Vishakha Guidelines, established a framework for addressing sexual harassment at the workplace in the absence of specific legislation.
Key Provisions
The guidelines define sexual harassment, outline the duty of employers to prevent it, and provide for mechanisms to address complaints.
Impact
The Vishakha judgment was a significant step towards protecting the rights of working women and has been instrumental in shaping legal and social attitudes towards sexual harassment in India.
Emergence of POSH Act
2007
2010
2012
2013
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2012 was passed by the Rajya Sabha on February 26, 2013 On April 23, 2013, President gave assent on the POSH Act and the same was published in the Gazette of India as Act no. 14 of 2013
The Indian Ministry of Women and Child Development notified December 09, 2013 as the effective date of the POSH Act and the POSH Rules.
Key Concepts
Employee
- Regular, Temporary
- Ad-hoc, daily wage
- Contract
- Probation, Training
- Apprenticeship roles, whether they are paid or unpaid
- Directly or indirectly employed, and With or without a formal employment contract.
Workplace
- Places Visited During Employmentclient' s office, a conference, or a business trip
- Employer-Provided Transportation
- Dwelling Place/House-The POSH Act considers an employee ' s home as part of an extended workplace, particularly if work-related interactions or activities occur there
- Unorganized Sector-including enterprises owned by individuals or self-employed workers engaged in producing, selling goods, or providing services.
Workplace
Any department, organization, undertaking, establishment, enterprise, institution, office, branch, or unit.
Any place visited by the employee arising out of or during the course of employment.
Private sector organizations or ventures. Hospitals and nursing homes.
Sports institutes, stadiums, sports complexes, or competition venues.
The extended workplace includes any place visited by an employee for work-related purposes, not just the traditional office
This could include business trips, client meetings, or even commuting if the employer provides transportation.
Aggrieved Women
“Aggrieved woman” is defined as a woman who alleges to have been subjected to any act of sexual harassment at the workplace. This definition applies regardless of her employment status, age, or whether she is directly or indirectly engaged with the employer.
Who is an Employer
“Employer” in relation to any department, office, branch, or unit of the appropriate Government or a local authority, as the head of that department, organization, undertaking, establishment, enterprise, institution, office, branch or unit or such other officer as the appropriate Government or the local authority may specify.
On the other hand, in a non governmental setup, “employer” means any person responsible for the management, supervision, and control of the workplace, where “management”
includes the person or board or committee responsible for the formulation and administration of policies for such an organization.
Sexual Harassment
whether physical, verbal, or non-verbal
Unwelcome
- Physical contact and advances.
- Demands or requests for sexual favors
- Making sexually colored remarks
- Showing pornography
- Any other unwelcome physical, verbal, or non verbal conduct of a sexual nature.
Sexual nature
Types of Sexual Harassment
Quid Pro Quo
The term is Latin for "this for that".
- A supervisor or manager threatens to fire, demote, or
otherwise harm an employee’s career if they don’t comply with sexual demands - A supervisor offers a promotion, raise, or other benefit
in exchange for sexual favors - A supervisor denies job opportunities to employees
who don’t agree to sexual advances
2013 – A student of Mass Communication and Journalism filed a case against the Head of the Department of MCJ of **** . The Head of the department kept on declining to accept the research work by the student persistently under one or other pretext.
On enquiring the reasons and suggestion for corrective action, the Head of the department tried to sexually harassed her in exchange of offering to accept and grade her research work with excellent grades.
Hostile work environment
2012 – An IT intern filed a case with IC of an IT MNC giant stating she feels uncomfortable working with the project team she is allocated.
The project workload and stringent timelines necessitated to work beyond office hours and she was left alone with her male colleagues who played derogatory film songs with sexual connotations.
She mentioned that she had brought it to their notice that such behavior is making her uncomfortable and she is unable to concentrate on work.
But they made fun of her calling her “Aunty Ji and Dadi maa” citing that her thought process was old fashioned.
Test Cases
A female trainee is demanded to sit late at night to discuss project even when she is not part of it, by her senior colleague. She finds his approach sexually implicit.
Is this Sexual Harassment?
A group of employees stand outside their office after their shift is over and sing songs that have sexual connotation as their female employee pass by.
Is this Sexual Harassment?
A female employee is suddenly terminated after she reported about about sexual advances by her senior during outstation work.
Is this Sexual Harassment?
A colleague often displays pornographic material on his mobile phone and invites you to watch.