Sexual Harssment at Workplace

Sexual Harassment against women in workplace is a complex issue as it involves known people in an environment which generates livelihood for both the victim and the accused. Sexual harassment and abuse are acts of violence and domination but can hardly contain the perception of sensuality and flirtation. According to National Resource Centre for Women, Department of Women and Child Development, Govt. of India, the number of cases of sexual harassment in India in 2002 was 10,155, an increase of 4.2 percent over the previous year (9,746).

Every woman has a right against sexual harassment. This was categorically held in Vishaka and Others v. State of Rajasthan and Ors (AIR 1997 SC 3011), where the Supreme Court invoked Articles 14, 15, 19(1)(g), 21, 32, 42, 51(c) and 51 A of the Constitution of India for substantiating such right. The judicial activism followed the gang rape, in 1992, of a sathin working for a State-run women’s development programme as she was trying to prevent child marriages in Rajasthan. Thus a Public Interest Litigation (PIL) was filed by women’s organizations before the Supreme Court seeking enforcement of the fundamental right of Article 21 of working women of the Constitution. One of the most significant features of this landmark judgment is that the onus of responsibility for protection against Sexual Harassment at the Workplace lies on the Employer and his failure in doing so will lead to Contempt of Court.

However, it is really unfortunate that no criminal law enactment, in existence as of now, in India defines or specifically deals with ‘sexual harassment’. The Indian Penal Code deals with the offence of ‘outraging modesty’. For example as per Section 354 of the Code, anyone (man or woman) who assaults or uses criminal force against any woman, with the intention of outraging her modesty or with the knowledge that such conduct is likely to outrage her modesty, is made liable and would be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. Similarly Section 509 makes it a criminal offence to utter any word, make a gesture or exhibit 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, and which is aimed at outraging her modesty. But as can be observed, these provisions are merely for the general crime and not specifically suited to the workplace conditions. So it has proved to be ineffective to deal with sexual harassment at workplace in the present-day scenario.

A remedy in an action of tort can also lie under the heads of assault and battery. India follows the Common Law principles and hence the law of tort, though uncodified, is applicable in India and therefore, equally available as a remedy. Further a tort for invasion of privacy can also be instituted where “intrusive sexual inquiries are made.
But as can be seen, there is no specific law for the same. It might be noted that The Protection of Women against Sexual Harassment at Workplace Bill 2007 is under process of being adopted as an Act and thus might bring a much-awaited respite.

Purvi Dabbiru
Member, SACJ, 2007-08