The issue of sexual harassment of women at workplace took fire after the brutal gang rape of Bhanwari Devi in the year 1992. Bhanwari Devi was a social activist in a small village in Rajasthan. As a part of her job, she took an active part in attempting to stop the child marriage of an infant at one Ramakant Gujjar's family. However, she was unsuccessful in doing so. In order to seek vengeance upon her, five men of the Gujjar community brutally gang-raped her in front of her husband in September 1992.
EVOLUTION OF POSH ACT
Sexual Harassment of women at the workplace was first recognised in the case of Vishaka v. State of Rajasthan, (1997) wherein a writ petition was filed by certain social activists and NGOs for the enforcement of the fundamental rights of working women under Articles 14, 19 and 21 of the Constitution of India. The writ petition was filed as a result of the brutal gang rape of Bhanwari Devi. In the absence of any enacted law to provide for the effective enforcement of these basic human rights and guarantee against sexual harassment of women at workplaces, the Vishaka guidelines were formulated by the Apex Court in this case and the legislative authorities were directed to pass an adequate legal framework to address the peril of sexual harassment of women at workplaces.
Before the Vishaka guidelines were formulated, complaints for sexual harassment at workplace were filed under Section 354 and Section 509 of the Indian Penal Code, 1860 however there was no law per se against sexual harassment in India.
The Vishaka case is one of the landmark judgments that served as a precedent for the implementation of the POSH Act.
Subsequent to the Vishaka case, a few important questions came up for consideration in the case of Apparel Export Promotion Council v. A.K. Chopra (1999) relating to sexual harassment of women at the workplace such as:
- Does a superior's action against a female employee that violates moral sanctions and is indecent and immodest not constitute sexual harassment?
- Whether physical touch is an essential ingredient for holding a person liable for sexual harassment?
- Does the allegation that the superior "tried to molest" a female employee at the "place of work", not constitute an act unbecoming of good conduct and behaviour expected from the superior?
Brief facts of the case were such that the Respondent was the Private Secretary to the Appellant, the Chairman of the Apparel Export Promotion Council. On 12 August 1988, the Respondent tried to molest Miss X who was an employee working as a Clerk-cum-Typist. Subsequent to this incident, Miss X lodged a formal written complaint with the Director. Consequently, the Respondent was placed under suspension and a charge sheet was served on him. The enquiry officer, after considering evidence and circumstances of the case, arrived at the conclusion that the Respondent's act was against moral sanctions and did not withstand the test of decency and modesty. Thus, the charges levelled against the Respondent were held to be proved. The Respondent was also removed from service by the departmental authorities. Aggrieved by the order of removal from service, the Respondent filed a departmental appeal before the Staff Committee of the Appellant which came to a similar conclusion that the order regarding the termination of the services of the Respondent was legal, proper and valid. The Respondent thereupon filed a writ petition which was allowed and the Ld. Single Judge observed and opined that the Respondent had only tried to molest and not in fact molested Miss X. To this, the Appellant-Employer filed a Letter Patent Appeal which was dismissed by the Division Bench which agreed with the findings recorded by the learned Single Judge. Finally, in the Special Leave Petition filed by the Appellant-Employer against the findings of the Ld. Single Judge and the Ld. Division Bench, the Hon'ble Supreme Court placed reliance on the Vishaka case and held that the act of the Respondent was unbecoming of good conduct and undoubtedly amounted to sexual harassment of Miss X. The Apex Court went on to opine that in cases involving a charge of sexual harassment or attempt to sexually molest, the courts are required to examine the broader probabilities of a case and not get swayed by insignificant discrepancies or narrow technicalities.
Several years later, on 7th December, 2010, the Government introduced 'The Protection of Women against Sexual Harassment at Workplace Bill, 2010 in the Lok Sabha with the aim of protecting women from sexual harassment at workplaces of all kinds, whether private sector, public sector, organised or unorganised, and for the prevention and redressal of sexual harassment complaints. The proposed legislation sought to include women who were employed at the workplace as well as those who entered the workplace as clients, customers, or apprentices, in addition to students and research researchers at colleges and universities and patients in hospitals. Domestic workers, were, however, excluded from protection under this Bill.
In Medha Kotwal Lele v. Union of India (2013), the Apex Court observed that even after 15 years after the Vishaka guidelines were laid down by the Hon'ble Supreme Court for the prevention and redressal of sexual harassment of women at workplaces until an appropriate legislation was enacted by Parliament, a statutory law was not in place. Women continued to be victims of sexual harassment at workplaces and the guidelines laid down in the Vishaka case were not followed properly. Many women struggled to have their most basic rights protected at workplaces. The Protection of Women Against Sexual Harassment at Work Place Bill, 2010 was still pending in the Parliament though Lok Sabha was said to have passed that Bill in the first week of September, 2012.
In 2013, The Criminal Law Amendment Act of 2013 was passed which inserted Section 354A in the Indian Penal Code, 1860. Section 354 A defines sexual harassment as any man committing any act such as physical contact and advances or a demand for sexual favours or showing pornography to a woman against her will or sexually coloured remarks. This provision further lays down the punishment for sexual harassment which is imprisonment that may extend to 3 years or fine or both except the punishment for making sexually coloured remarks is imprisonment which may extend to 1 year or fine or both.
After a lapse of several years since the decision rendered by the Hon'ble Supreme Court in the Vishaka case, finally, the same year, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 came into force. The POSH Act, 2013 is a comprehensive legislation that was passed in light of Vishaka Guidelines. It is an in-depth version of the Vishaka Guidelines with widened scope, ambit and redressal mechanisms.
1. Sexual Harassment of Women at Workplace, 1.4 JCLJ (2021) 794
2. Sexual Harassment At Workplace, 9 CPJLJ (2019) 256
3. Sexual Harassment at workplace in India, 2.2 JCLJ (2022) 255
4. Interpreting the Provisions of Sexual Harassment of women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, 2.4 JCLJ (2022) 1317
5. Vishaka v. State of Rajasthan, (1997) 6 SCC 241
6. Apparel Export Promotion Council v. A.K. Chopra, (1999) 1 SCC 759
7. Medha Kotwal Lele v. Union of India, (2013) 1 SCC 297
8. https://pib.gov.in/newsite/PrintRelease.aspx?relid=68476 (last visited on 5 August, 2023)
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