RAJIV GANDHI NATIONAL UNIVERSITY OF LAW PATIALA, PUNJAB

PENAL LAW II

PROJECT REPORT

SEXUAL HARASSMENT AT WORKPLACES

SUBMITTED IN PARTIAL FULFILMENT OF B.A.LL.B. (HONS.) SIXTH SEMESTER

Most Humbly Submitted to

Most Humbly Submitted By Sewak Singh (417) Prakhar Deep (437) Sarthak Garg (457) Raghav Sharma (477) Project Group No. 17

MR. GURNEET DHALIWAL D. SACHIV KUMAR

Assistant Professors in Criminal Law Rajiv Gandhi National University of Law Patiala, Punjab

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Acknowledgments

ACKNOWLEDGEMENTS
On completion of this Project it is our present privilege to acknowledge our profound gratitude and indebtedness towards our teachers for their valuable suggestion and constructive criticism. Their precious guidance and unrelenting support kept us on the right track throughout the project. We gratefully acknowledge our deepest sense of gratitude to our revered and intellectual guide Prof. (Dr) P S Jaswal, our honble vice chancellor and the Assistant Professors in law Mr. Gutneet Dhaliwal and Dr. Sachiv Pathania faculty-incharge of Criminal Law , who have provided us important tips after the submission of first draft. We heartily thank the library staff for their able guidance and support without which this project would not for their able guidance and support without which this project would not have been completed. We are also thankful to Mr. Inderpreet and other computer staff who helped us in operating computer and providing access to internet. We would also like to thank for the painful and joint efforts of our group members, which helped us in bringing out this project. We are thankful to our family members and friends for the affection and encouragement with which doing this project became a pleasure. Last but not least we would like to thank the ALMIGHTY whose blessings helped us in making this project come out successfully with flying colures. Sewak Singh (417) Prakhar Deep (437) Sarthak Garg (457) Raghav Sharma (477) Group 17

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Certificate RAJIV GANDHI NATIONAL UNIVERSITY OF LAW, PUNJAB PATIALA-147001

Patiala (Punjab) Date: ___________

Mr. Gurneet Dhaliwal Dr. Sachiv Pathania Assistant Professors of Law

SUPERVISORS CERTIFICATE

This is to certify that the Project Paper Entitled: SEXUAL HARASSMENT AT WORKPLACES submitted to Rajiv Gandhi National University of Law, Punjab, in partial fulfillment of the requirements for Paper-I of the B.A.LL.B (Hons.), sixth semester, is an original and bonafide research work carried out by Mr. Sewak Singh, Mr. Prakhar Deep, Mr. Sarthak Garg, and Mr. Raghav Sharma under my supervision and guidance. It is further certified that no part of this study has been submitted to any University for the award o f any degree or diploma whatsoever.

_______________________

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Table of Contents

CHAPTER I INTRODUCTORY CHAPTER ..................................................................................... 9 1.1. 1.2. 1.3. 1.4. 1.5. 1.6. OBJECTIVE OF STUDY ..................................................................................................... 9 RESEARCH METHODOLOGY........................................................................................... 9 FORMATTING METHODOLOGY ...................................................................................... 9 SCOPE OF MY STUDY ....................................................................................................... 9 CHAPTER SCHEME ......................................................................................................... 9 LIMITATION OF THE STUDY ......................................................................................... 10

CHAPTER II MEANING OF SEXUAL HARASSMENT ................................................................. 11 2.1. KINDS OF SEXUAL HARASSMENT: ............................................................................... 11 2.1.1. 2.1.2. 2.1.3. 2.1.4. Quid pro quo" harassment ............................................................................... 11 Hostile environment harassment ...................................................................... 12 Various Interpretations of Court ...................................................................... 12 Various Legislations related to Sexual harassment......................................... 13

CHAPTER III POSITION OF WOMEN IN INDIA ......................................................................... 14 3.1. 3.2. 3.3. HISTORICAL ASPECT .................................................................................................... 14 CONSTITUTIONAL PROVISIONS UNDER ARTICLE 14 AND 15. ...................................... 14 CONSTITUTIONAL PROVISIONS UNDER ARTICLE 16. .................................................. 15

CHAPTER IV LAEGAL PROVISIONS RELATED TO SEXUAL HARRASSMENT .......................... 16 4.1. STATUTORY PROVISIONS UNDER CONSTITUTION OF INDIA ........................................ 16 4.1.1. Article 14 ........................................................................................................... 16

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4.1.2. 4.1.3. 4.1.4. 4.1.5. 4.2. 4.3.

Article 15 ........................................................................................................... 16 Article 16 ........................................................................................................... 16 Article 19 ........................................................................................................... 16 Article 21 ........................................................................................................... 16

CASE LAWS ANALYSIS ................................................................................................. 17 STATUTORY PROVISIONS UNDER CRIMINAL LAW, INDIAN PENAL CODE, 1860 ........ 20 4.3.1. 4.3.2. 4.3.3. India 4.3.4. Sexual harassment and Rape Laws in India ................................................... 20 Section 354 Of The Indian Penal Code. .......................................................... 21 Contradiciton between Section 354 & Fundamental Rights of Constitution of 23 Attempt To Commit Rape & Attempt To Commit Indecent Assault ............... 23

4.4.

SECTION 294 OF THE INDIAN PENAL CODE ................................................................ 24 4.4.1. Essential requisites to be proved ....................................................................... 25

4.5.

SECTION 509 OF THE INDIAN PENAL CODE ................................................................ 26 4.5.1. Section 509: Eve Teasing .................................................................................. 26

4.6.

OTHER LEGAL PROVISIONS ......................................................................................... 27 4.6.1. 4.6.2. 4.6.3. 4.6.4. 4.6.5. 4.6.6. The Employees State Insurance Act, 1948; ..................................................... 27 The Plantation Labour Act, 1951; .................................................................... 27 The Contract Labour (Regulation and Abolition) Act,1976; .......................... 27 The Factories (Amendment) Act, 1986; ........................................................... 27 Indecent Representation of Women (Prohibition) Act, 1986; and.................. 27 The Protection of Women from Domestic Violence Act, 2005. ....................... 27

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CHAPTER V ANALYSIS OF PROTECTION OF WOMEN AGAINST SEXUAL HARASSMENT AT WORKPLACE BILL, 2010 ......................................................................................................... 28 5.1. 5.2. ENACTMENT OF BILL ................................................................................................... 28 SALIENT FEATURES OF THE BILL ARE AS FOLLOWS: .................................................. 28 5.2.1. Implementation of Bill ...................................................................................... 29

CHAPTER VI CASE ANALYSIS OF VISHAKHA V. STATE OF RAJASTHAN .................................. 30 6.1. 6.2. 6.3. 6.4. INTRODUCTION ............................................................................................................. 30 IMPORTANT OBSERVATIONS OF THE COURT: ............................................................. 30 FOLLOWING CAN BE TERMED AS SEXUAL HARASSMENT ............................................. 31 EMPLOYERS DUTY........................................................................................................ 31 6.4.1. 6.4.2. 6.4.3. It is an obligatory requirement for employers: ................................................ 31 Employers duty after receiving a sexual harassment complaint. .................. 32 Setting up of Complaint Committee by the employers ..................................... 32

CHAPTER VII INTERNATIONAL CONVENTIONS ..................................................................... 34 7.1. 7.2. HISTORICAL DEVELOPMENT ....................................................................................... 34 THE CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION

AGAINST WOMEN (CEDAW) .................................................................................................. 35

CHAPTER VIII AN ASSESSMENT OF ISSUE AND CURRENT SCENARIO ................................... 37 8.1. 8.2. 8.3. THE REALITY ............................................................................................................... 37 PRACTICAL PROBLEMS IN IMPLIMENTING LAWS ....................................................... 39 STEPS TO BE TAKEN TO IMPROVE THE CONDITION OF WOMEN ........... 40 8.3.1. At Social Level ................................................................................................... 40

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8.3.2. 8.3.3.

At Legal and Administrative ............................................................................. 41 At Legislative level ............................................................................................ 41

CHAPTER IX ............................................................................................................................ 43 CONCLUSION ........................................................................................................................... 43 BIBLIOGRAPHY ........................................................................................................................ 45

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Table of Cases Apparel Export Promotion Council vs. A.K. Chopra 1999 INDLAW SC 1320, AIR 1999 SC 625, 1999 (1) SCC 759......................................................................................................... 22 Bankey v. State of Bihar, AIR 1961 All 131 ........................................................................... 28 BodisattwaGautam vs. SubhraChakraorty1995 INDLAW SC 1920, (1996) I SCC............... 19 Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). ................................................... 15 Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993)...................................................................... 14 Keshav Baliram Naik v. State of Maharashtra 1996 Cr LJ 1111 (Bom.) ............................... 24 Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998) ......................................... 14 R v. Court (1988) 2 All ER 221 (HL) ..................................................................................... 24 RupanDeol Bajaj vs. Kanwar Pal Singh Gill (1995) 6 SC C 194. .......................................... 29 State of H.P v. Ram Das, 1999 Cr LJ 798 (AP) ...................................................................... 25 State of Maharashtra vs. Madhukar N. Mardikar(1991) 1 SCC 57. ....................................... 29 Tarak Das Gupta v. State of Madhya Pradeh, AIR 1926 Bom 159 ........................................ 28 Vishakha vs. State of Rajasthan 1997 INDLAW SC 2304, 1997 AIR(SC) 3011, .................. 19 Zafar Ahmad v. State of U.P, AIR 1963 All 105 .................................................................... 27

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CHAPTER I INTRODUCTORY CHAPTER

In legal terms, sexual harassment is any unwelcome sexual conduct on the job that creates an intimidating, hostile, or offensive working environment. Simply put, sexual harassment is any offensive conduct related to an employees gender that a reasonable woman or man should not have to endure while at work. The laws prohibiting sexual harassment are gender blind; they prevent women from harassing men, men from harassing other men, and women from harassing other women. However, the vast majority of cases involve women workers who have been harassed by male co-workers or supervisors 1.1. OBJECTIVE OF STUDY

The objective of the researchers study on this topic is to dissect and give a holistic analysis of the various aspects of the Offence of Sexual Harassment at Workplaces. This project analysis various provisions related to the offence, under the Indian law. 1.2. RESEARCH METHODOLOGY

The nature of research methodology adopted by the researcher for this particular topic is purely doctrinal. The researcher has used resources available at the library of RGNUL and the World Wide Web. Thus, the researcher of this project has used secondary data for the successful completion of this project. No primary data has been included. 1.3. FORMATTING METHODOLOGY

The project is in Times New Roman, font Size 14 for the main headings and 12 for other parts of the study with 1.5 spacing. The footnotes are of font size 10 with 1.0 spacing. Uniform method of footnoting has been followed. 1.4. SCOPE OF MY STUDY

To throw light on the Offence of Sexual Harassment At Workplace and analyse its current position in India. The researchers have analysed the relevant provision in Constitution of India, 1950; Code of Criminal Procedure, 1973; and The Indian Penal Code, 1860. 1.5. CHAPTER SCHEME

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In the first chapter, the researcher has briefly introduced the topic. The researcher has also discussed the objective of the study, research methodology, scope of the study, chapter scheme and the limitation of the study in this chapter. In the second chapter, the Position of Women in India has been discussed, with regards to the historical and the social aspects. In the second chapter, titled Introduction to Sexual Harassment at Workplace, the researcher has elucidated the concept of Sexual Harassment at workplaces and its kinds. In the third chapter, the researcher has thrown light upon the present Legal Provisions Relating To Sexual Harassmenrt In India and its development in India, with the critical analysis of the provisions in Indian Penal Code, 1860. In the fourth chapter, the Case of Vishaka & others v State of Rajasthan & Others. has been analysed, through which the provisions related to Sexual harassment at Workplaces has been developed in India. In the fifth chapter, the international conventions have been discussed, with their related provisions and their current status. The sixth chapter, titled An Assessment Of The Issue & The Current Scenario the research has analysed current actual position of the provisions meant for curbing the offence , the reality, the actual position of the women and the effectiveness of the provisions. This has been done by analysis the observations of decision of various courts. In the Last chapter, brief deductions have been made and certain suggestions have also been put forward by the researcher. 1.6. LIMITATION OF THE STUDY

Due to paucity of time and lack of resources, a complete comparative study with law prevalent in other nations could not be be undertaken by the researcher. However exhaustive use the internet and library resources for the successful completion of this project.

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CHAPTER II MEANING OF SEXUAL HARASSMENT

Harassment refers to a wide spectrum of offensive behaviour. When the term is used in a legal sense it refers to behaviours that are found threatening or disturbing, and beyond those that are sanctioned by society. The journalist LinFarley takes credit for coining the term sexual harassment; she wrote a book, Sexual Shakedown (1978), to bring attention to the phenomenon. The book describes many different kinds of incidents that Farley considered sexual harassment and provides the following definition of sexual harassment: Sexual harassment is best described as unsolicited nonreciprocal male behaviour that asserts a womens sex role over her function as a worker.1 Sexual harassment refers to persistent and unwanted sexual advances, typically in the workplace, where the consequences of refusing are potentially very disadvantaging to the victim. It includes the actions of a person (or group) who is repeatedly sending threatening letters, calling on phone, or repeatedly sending unwanted gifts to the victim. Sexual harassment is nothing less than the displaying of male dominance. Given an opportunity, such men (those committing sexual harassment) would try fulfilling their desire. The forms that sexual harassment can take range from offensive sexual innuendoes to physical encounters, from misogynist humor to rape. An employee may be confronted with sexual demands to keep a job or obtain a promotion, known in the earliest cases as a quid pro quo form of harassmentliterally, do this for that. In other forms of sexual harassment, the threator the trade-offis not as blunt. When sexually offensive conduct permeates the workplace, an employee may find it difficult or unpleasant to work there. The term hostile environment was frequently used in the cases and literature to describe this form of sexual harassment. 2.1. KINDS OF SEXUAL HARASSMENT:

2.1.1. Quid pro quo" harassment "Quid pro" behavior involves express or implied demands for sexual favors in exchange for some benefit (a promotion, a raise, a good grade or recommendation) or to avoid some detriment (termination, demotion, a failing grade, denial of a fellowship) in the workplace or in the classroom. By definition, it can only be perpetrated by someone in a position of power
1

Farley, L., Sexual shakedown: The sexual harassment of women on the job, McGraw-Hill, New York, 1978, p. 15.

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over another. Because the University, as the employer, has given supervisory power to the harasser, one instance of "quid pro quo harassment" is enough to result in liability. This is true even if the University had no knowledge of the behavior 2.1.2. Hostile environment harassment Sex harassment may also arise from unwanted conduct which is so severe or persistent that it creates an intimidating, hostile, or offensive educational or working environment. Conduct may be physical, verbal or nonverbal. For example, the following types of behavior may constitute harassment: touching; hugging; kissing; sexual remarks about a person's clothing, body or sexual relations; repeated requests for a date; conversations of a sexual nature or similar jokes and stories; the display of sexually explicit materials in the workplace; and the use of sexually explicit materials in the classroom which are without defensible educational purposes. The definition of sexual harassment is evolving as it passes through courts and legislatures. The most authoritative refinements come from the U.S. Supreme Court, which has issued a number of pronouncements on the subject. For example, the Court held that a worker need not show psychological injury to prove a case of sexual harassment; it also intimated that one or two offensive remarks are not enough to make a case.2 And, in additional recent cases, the Court has offered some uncharacteristically homespun advice for both employers and employees entangled in harassment issues: Act reasonably. Use your common sense. 2.1.3. Various Interpretations of Court The Supreme Court of U.S has recognized that illegal harassment can occur between people of the same gender. It implied that drawing the line between horseplay or flirtations and discrimination on the job is not as hard as some pretend, even while acknowledging that men and women may play differently.3 The Court also acknowledged that the jargony labels of quid pro quo and hostile environment may be more confusing than helpful in defining sexual harassment, although many lower courts continue to cling to them to this day. It held that an employer may be liable for sexual harassment even when an employee did not succumb to sexual advances or suffer adverse job consequences. But the employer can defend itself against liability and damages by showing that it used reasonable care in stopping harassmentfor example, that it had a strong written
2 3

Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993) Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998)

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anti harassment policy or an investigation procedure. An employee who does not take advantage of the workplace policy by reporting the harassment has a considerably weaker case.4 2.1.4. Various Legislations related to Sexual harassment Many enactments and progressive legislations have been made to take care of fair sex and many provisions have been prescribed pertaining to domestic life of women, proprietary rights and women, social life of women and their personal rights. Hindu Marriage Act, 1955; Child Marriage Restraint Act, 1929; Dowry Prohibition Act, 1961, Protection of Women from Domestic Violence Act 2005 are some of the glorious examples to improve the situation. However, in present male dominated society much for welfare of the women has to be done because of manifold offence against women. This essay is an attempt to address the actual problem and possible remedies for the incidents of sexual harassment at work place.

Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998).

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CHAPTER III POSITION OF WOMEN IN INDIA

3.1.

HISTORICAL ASPECT

There is an age-old proverb that says, Where women are respected there gods reside. But now women are considered as a weaker sex not only from physical point of view but also from sociological aspect also. As Swami Vivekananda had said that country and that nation that do not respect women have never become great, nor ever be in future5. In ancient India, the women enjoyed equal status with men in all fields of life. Works by ancient Indian grammarians such as Patanjali and Katyayanasuggest that women were educated in the early vedic period. Rigvedic verse ssuggest that the women married at a mature age and were probably free to select their husband. Scriptures such as Rig Veda and Upanishads mention severalwomen sages and seers, notably Gargi and Maitreyi. However, later (approximately 500 BC), the status of women began to decline with the Smritis ( especially Manusmriti) and other religious texts curtailing womens freedom and rights. The Indian womans position in the society further deteriorated during the medieval period. Sati, child marriages andban on widow remarriages became part of social life in India. The Muslim conquest in the Indian subcontinent brought the purdah practice in the Indian society. Among the Rajputs of Rajasthan, the Jauhar was practised. In some parts of India, the Devadas is or the temple women were sexually exploited. Today the status of women is better than medieval period but not as good as in early vedic period. The freedom fighters in 1930s recognised the need to grant equality between the sexes and for that the All-India Congress 1931 (Karachi Session) adopted a resolution on fundamental rights, which incorporated the concept of equality of the sexes6. Such was the promise shown by the emerging modern nation state. The Constitution of India is in itself remarkable bedrock on which the struggle for equality may be embedded. 3.2. CONSTITUTIONAL PROVISIONS UNDER ARTICLE 14 AND 15.

The Constitution of India, preamble ensures, inter alia, justice, equality of status and opportunity and dignity of the individual. The fundamental rights guarantee womens equality under the law. Arts. 14 and 15 pronounce not only the rights of men and women to
5 6

Retrieved from http://www.sriramakrishna.org/vvksay.htm. on 6-4-2012. Reba Som, Jawaharlal Nehru and The Hindu Code: A Victory of Symbol Over Substance?, Modern Asian Studies, 1994 pp. 165-194.

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equality under law but prohibit discrimination on the basis of sex by the state. Art. 15 forbids the state to subject any citizen to any disability on the basis of sex in access to, or use of public places or services. 3.3. CONSTITUTIONAL PROVISIONS UNDER ARTICLE 16.

Art. 16 state the equality of opportunity in matters relating to employment under the state. The Directive Principles of State Policy include adequate means of livelihood for men and women, equal pay for equal work, protection of health and strength of workers, protection of men and women from abuse, just and humane conditions and maternity relief. In present time it has been observed that males are the active part and the females are the only passive part of the society. They are only a thing for enjoyment by males and in some societies they are only chattels contractible, saleable and endowed with the duty to serve males and females having no material and worthwhile rights. In theory, they are respectable, but in practice, they are the subjects of cruelty, ill treatment and all sorts of misbehaviour by males. Women not only in India but also everywhere in the world are facing many problems from womb to tomb. Todays position of women as weaker sex is the result of mens injustice to women. Our male dominated society expect from the female sex as to obey the man but no one questioned as to why she must be treated as obeying person.

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CHAPTER IV LEGAL PROVISIONS RELATING TO SEXUAL HARASSMENRT IN INDIA

4.1.

STATUTORY PROVISIONS UNDER CONSTITUTION OF INDIA

The rights of women have the originating source in the constitution of India; for all Indian laws are emerged from, and clothed with sanctity by constitution. The Indian constitution guarantees equality of status and opportunity to men and women. The fundamental rights are enshrined in the constitution of India. It must be borne in the mind that when the fundamental rights are infringed, the natural basic human rights, inherent in human beings, are violated. The relevant Articles of the constitution of India, which bestow legal rights upon women, are7: 4.1.1. Article 14 Article 14 confers the equality before law or the equal protection of the law to every person. 4.1.2. Article 15

Article 15(1) prohibits any discrimination on grounds of religion, race, sex, or place of birth. 15(3) empower the state to make any special provision for women and children. 4.1.3. Article 16 Article 16guarantees equality of opportunity for all citizens in matters relating to employment or opportunity to any office under the state and forbids the discrimination on the grounds only of inter alia sex. 4.1.4. Article 19 Article 19 guarantees the two important freedoms: (a) freedom of speech and expression - art. 19(1)(a); and (b) freedom to practice any profession or to carry out any occupation, trade or business - art. 19(1)(g). 4.1.5. Article 21 Article 21 ensures; no person shall be deprived of his life or personal liberty except according to procedure established bylaw. Women have a right to lead a dignified, honourable and peaceful life with liberty.

MeenaRao, Ramification of Harassment of women, 43 JILI, 2001 pp. 305-335.

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4.2.

CASE LAWS ANALYSIS

Indian judiciary has given a new revolutionary approach to the issues related to women in the case of Bodisattwa Gautam vs. Subhra Chakraorty8 by stating that rape is not merely an offence under Indian Penal Code, 1860. It is a violation of womans right to live with dignity and personal freedom. Saghir Ahmed, delivering the judgment on behalf of the court observed: Rape is not only crime against the person of a woman viz victim, it is a crime against entire society. It destroys the entire psychology of a woman and pushes her into deep emotional crisis .. It is crime against basic human rights and is also violative of the victims most cherished of thefundamental rights viz. right to life contained in art. 21. In the case of Vishaka vs. State of Rajasthan9, first time sexual harassment had been explicitly-legally defined as an unwelcome sexual gesture or behaviour whether directly or indirectly as (1) sexually coloured remarks; (2) physical contact and advances; (3) showing pornography; (4) a demand o r request for sexual favours; and (5) any other unwelcome physical, verbal/non-verbal conduct being sexual in nature. It was in this landmark case that the sexual harassment was identified as a separate illegal behaviour. The critical factor in sexual harassment is the unwelcomeness of the behaviour. Thereby making the impact of such actions on the recipient more relevant rather than intent of the perpetrator, which is to be considered. In the abovementioned case, the judgment was delivered by J.S. Verma, CJ, on a writ petition filed by Vishakha- a NGO working for gender equality byway of public interest litigation seeking enforcement of fundamental rights of working women under the Constitution of India, art. 21.The Supreme Court in absence of any enacted law (which still remains absent) to provide for effective enforcement of basic human rights of gender equality and guarantee against sexual harassment, laid down the guidelines. TheCourt has emphasised that the guidelines and norms being laid down by it had tobe duly observed at all workplaces or other institutions until a legislation is enacted for this purpose
8

BodisattwaGautam vs. SubhraChakraorty1995 INDLAW SC 1920, (1996) I SCC 490. 9 Vishakha vs. State of Rajasthan 1997 INDLAW SC 2304, 1997 AIR(SC) 3011, 1997(7) SCC 323.

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and that these must be treated as law under the Constitution of India, art. 141. These guidelines are in accordance with there commendations and conventions of various international organisations like the International Labour Organization and the European Communities. Some of the guidelines are as follows: A. All the employers in charge of work place whether in the public or the private sector, must take appropriate steps to prevent sexual harassment without prejudice to the generality of his obligation; he must take the following steps: B. Express prohibition of sexual harassment which includes physical contact and advances, a demand or request for sexual favours, sexually coloured remarks, showing pornographic or any other unwelcome physical, verbal/non-verbal conduct of sexual nature must be noticed, published and circulated in appropriate ways; C. The rules and regulations of government and public sector bodies relating to conduct and discipline must include rules prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender; D. As regards private employers, steps must be taken to include the aforesaid prohibitions in the Standing Orders under the Industrial Employment (Standing Orders) Act,1946; and E. Appropriate work conditions must be provided in respect of work leisure, health, hygiene - to further ensure that there is no hostile environment towards women and no F. Woman must have reasonable grounds to believe that she is disadvantaged in connection with her employment; G. Where such conduct amounts to specific offences under the Indian Penal Code, 1860, or any other law the employer will initiate appropriate action in accordance with the law, by making a complaint with the appropriate authority. As stated by the Supreme Court, these guidelines are applicable to: A. The employer or other responsible persons or other institutions to prevent sexual harassment and to provide procedures for there solution of complaints; and B. Women who either draw a regular salary or receive an honorarium or work in a voluntary capacity - in the government, private or organised sector come under the purview of these guidelines. Preventive steps

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1. Express prohibition of sexual harassment should be notified and circulated; 2. Inclusion of prohibition of sexual harassment in the rules and regulations of government and public sector; 3. Inclusion of prohibition of sexual harassment in the standing orders under the Industrial Employment (Standing Orders) Act,1946 by the private employers; and 4. Provision should be made for appropriate work conditions for women. Procedure pertaining to filing of complaints 1. Employers must provide a Complaints Committee, which is to beheaded by a woman, of which half members should be women; 2. Complaints committee should also include an NGO or other organisation - which is familiar with sexual harassment; 3. Complaints procedure should be time bound; 4. Confidentiality of the complaints procedure has to be maintained; 5. Complainant or witnesses should not be victimized or discriminated against - while dealing with complaints; and 6. The committee should make an annual report to the concerned government department and also inform of the action (if any)taken so far by them. Miscellaneous provisions 1. Guidelines should be prominently notified to create awareness as regards the rights of the female employees; 2. The employers should assist the persons affected, in cases of sexual harassment by outsiders or third parties; 3. Sexual harassment should be discussed at workers meetings, employer-employee meetings and at other appropriate forums; and 4. Both Central and state governments are required to adopt measures including legislations to insure that private employers also observe these guidelines. 5. It was also stated that, gender equality includes protection from sexual harassment and right to work with dignity, which is a universally recognised basic human right. The common minimum requirement of this right has received global acceptance. Apparel Export Promotion Council vs. A. K. Chopra10 is the first case in which the Supreme Court applied the law laid down in Vishakas case and upheld the dismissal of a superior officer of the Delhi based Apparel Export Promotion Council who was found guilty of sexual
10

Apparel Export Promotion Council vs. A.K. Chopra 1999 INDLAW SC 1320, AIR 1999 SC 625, 1999 (1) SCC 759.

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harassment of a subordinate female employee at the place of work on the ground that it violated her fundamental right guaranteed by the Constitution of India, art. 21. 4.3. STATUTORY PROVISIONS UNDER CRIMINAL LAW, INDIAN PENAL CODE, 1860

4.3.1. Sexual harassment and Rape Laws in India Sexual harassment and rape are the two sides of the same coin. In both of them the victim is woman and both are oppressive by nature. Many people extenuate sexual harassment to rape, just because the victims are not physically harmed. But both of them undermine the integrity of woman and add to her physical or mental trauma. Sexual harassment is considered as a showcase of mens power and oppressive nature and it is held that given a chance the people who indulge in sexual harassment will resort to fulfill their desires. The concept of sexual harassment is relatively new; the term was coined in the 1960s. Of course, sexual harassment existed prior to the sixties, but people had no way to talk about it since there was no term by which to name the experience. While thirty years is a relatively short time for the development of a body of scholarship, this topic has drawn a great deal of interest from academic scholars as well as legal scholars.11 According to the official statistics of 1991, one woman is molested every 26 minutes. These statistics refer to the reported cases. Whereas, if the unreported cases were to be included, it would be a matter of seconds- rather than minutes. investigation of Most cases are not reported by victims because of various reasons such as family pressures, the manner of the police, the unreasonably long and unjust process and application of law; and the resulting consequences thereof. 12 An act to constitute sexual harassment is legally defined as an unwelcome sexual gesture or behavior which can comprise of either sexually colored remarks or physical advances or showing pornography or demand for sexual favors or any other conduct which is sexual in nature. The rape laws in India is wider in comparison to the existing laws on sexual harassment and is to be found under section 375 and section 376 of the IPC. The laws on sexual harassment as mentioned earlier are enlisted under sections 294, 354 and 509 of the IPC.

11

Retrieved from http://www.de.psu.edu/harassment/generalinfo/background.html on 13/4/2012 at 10:00 A.M Retrieved from http://www.legalserviceindia.com/articles/rape_laws.htm on 13/4/2012 at 10:00 A.M

12

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The law of rape is not just a few sentences. It is a whole book, which has clearly demarcated chapters and cannot be read selectively. We cannot read the preamble and suddenly reach the last chapter and claim to have understood and applied it. These laws are made for the benefit of the public and hence it is a duty on the part of the state that they should be properly executed so that the needy can avail benefits from them. Because most victims of sexual harassment dont speak out, we dont understand the seriousness and pervasive nature of it. Hence it becomes difficult to document the extent of sexual harassment. Some critics hold the viewpoint that at many times sexual harassment goes underreported as the women who are the victims consider it to be a joke or a compliment. However an act of obscenity in public which lowers the esteem and dignity of woman is sufficient to be categorized under sexual harassment. While in the case of rape, penetration is essential, it is not in case of sexual harassment. The accused may have in mind the desire to have sex but his thought is overshadowed by his act which lowers the modesty of the victim without the necessary act of penetration as in case of rape. In cases where an indecent assault is made upon the person of a woman, but where rape is not committed- the culprit is charged with Section.354 of IPC, because unless the Court is satisfied that there was determination in the accused to gratify his passion at any cost, and inspite of all resistance, such person is not charged with rape. 4.3.2. Section 354 Of The Indian Penal Code. Section 354 of The Indian Penal Code reads as such, Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.13

An indecent assault against a woman is punished under this section. We all know that rape is punished under Section 376, the offence enlisted this section is of a lesser gravity compared to rape. Their Lordships of the House of Lords have pointed out that a person is guilty of indecent assault if he intentionally assaults the victim and intends to commit not just an assault but an indecent assault, i.e., an assault which right-minded persons would think is indecent.

13

Ratanlal and Dhirajlal, The Indian Penal Code, Lexis Nexis Waghwa, 30th edition, 2004, Nagpur p.644

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In the case of R v. Court,14 a 26-year-old shop assistant, pulled a 12-year-old girl visitor to the shop across his knees and smacked her with his hands 12 times on her bottom outside her shores for no apparent reason. On being asked he explained his weakness as buttock fetish. But for this admission there was nothing to convert the assault confessed by him into an indecent one. His explanation to his secret motive was held to be relevant to hold him guilty of indecent assault. Some labourers, including a woman, were taken to a police station for some work. When they demanded wages, they were beaten up. The woman was stripped bare and thrashed. The matter came before the Supreme Court in a writ petition under Article 32 of the constitution. The Supreme Court held that the offence under s. 354, IPC, was established in reference to the woman and awarded compensation to be recovered from the salary of the guilty officers. By the sexual offences act, 1956, an indecent assault upon a female of any age is made a misdemeanor and on a charge for indecent assault upon a child or a young person under the age of sixteen it is no defence that she or he consented to the act of indecency. An assault becomes indecent only if it is accompanied by circumstances of indecency towards the person assaulted. In the case of Keshav Baliram Naik v. State of Maharashtra,15 a woman came out early in the morning to get water from the village well. The accused caught her hand and forcefully pulled her to him to be taken to a nearby place. She resisted and raised shouts. Her bangles were broken and she was injured. The accused was found guilty of the offence under s. 354 and was convicted accordingly setting aside his acquittal. In the case of Jai Chand v. State,16 the woman was forced on bed where the accused broke the string of her pajamas and tore her underwear. At the same time, he did not make any attempt to undress himself. The offence of rape could not be made out and this case fell under s. 354 of IPC.

If the accused holds the arms of the victim with one hand and put the other hand on her breasts, then such an act is considered to be an offence under s. 354. 17 In this case the image and stature of the family was disturbed. The accused was directed to pay a fine of Rs. 1000 only because of the fact that the incident was fairly old.
14 15

R v. Court (1988) 2 All ER 221 (HL) Keshav Baliram Naik v. State of Maharashtra 1996 Cr LJ 1111 (Bom.) 16 Jai Chand v. State 1996 Cr LJ 2039 (Del.) 17 State of H.P v. Ram Das, 1999 Cr LJ 798 (AP)

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4.3.3. Contradiciton between Section 354 & Fundamental Rights of Constitution of India Section 354 offends against article 14 of the Constitution of India. The pronoun he used in the expression that he will thereby outrage her modesty must be taken under section 8, penal code, as importing a male or a female. It is thus clear that under section 354, penal code, man as well as a woman can be held guilty of the offence and be punished for it. The section, therefore, operates equally upon all persons whether males or females and as women are not exempt from any punishment under the section it does not offend against the provisions of article 14 of the constitution. It also violates article 15 of the constitution- the word only in article 15(1) emphasizes the fact that the discrimination that is prohibited under the article is a discrimination based on the ground of sex, or race, etc., alone. If the discrimination is based not merely on any of the grounds stated under article 15(1) but also on considerations of propriety, public morals, decency, decorum and rectitude, the legislation containing such discrimination would not be hit by the provisions of the article. If the accused took liberty with the girl with her consent, then he cannot be held guilty under section 354, Penal code, as it would not amount to an assault or use of criminal force with an intention to outrage her modesty. Where the medical evidence does not corroborate the evidence of prosecutrix in the matter of commission of rape, it would not be proper to convict the accused under section 376, IPC. 4.3.4. Attempt To Commit Rape & Attempt To Commit Indecent Assault The distinction between an attempt to commit rape and an attempt to commit indecent assault is sometimes very meager. For the former, there should be some action on the part of the accused which would show that he is just going to have sexual connection with the prosecutrix. For an offence of an attempt to commit rape the prosecution must establish that it has gone beyond the stage of preparation. The difference between mere preparation and actual attempt to commit an offence consists chiefly in the greater degree of determination. The test for outrage of modesty should be that whether a reasonable man will think that the act of the accused was intended to or was known to be likely to outrage the modesty of the woman. Where an accused is tried for an offence under s. 354, and an assault is proved, the next question to be considered is whether he did so with the intent to outrage the womans modesty, or with the knowledge that it would be outraged. The story of a person trying to

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outrage the modesty of two women in presence of two gentlemen is so unnatural, that there must be clear and impeachable evidence before it can be accepted. There is no warrant for laying down the wide proposition that in a case under s. 354 or for the matter of that in any case relating to a sexual offence, excepting rape independent corroboration of the prosecutrixs evidence can be insisted upon.18 Until recently the law relating to indecent assault appeared to be reasonably settled if not well defined. It was generally accepted that the prosecution had to prove that the defendant had assaulted (assault here including a battery) the victim in circumstances of indecency. Very little attention was paid in the Mens Rea of this offence, apart from recognizing that it required the Mens Rea of a common assault or a battery.19 The punishment for outraging the modesty of a woman under s. 354 is imprisonment for a period of two years, or fine, or both. Section 354A which deals with indecent assault states, Whoever commits indecent assault against a woman or a man shall be liable to punishment with imprisonment of either description for a term which may extend to five years, or with fine, or with both.20 The remedy which s. 354A provides in India is provided under Sexual Offences Act, 1956 in England. It is there to cover both men and women alike as in the case of English law. 4.4. SECTION 294 OF THE INDIAN PENAL CODE

This section was substituted for the original section by the Indian Criminal Law Amendment Act (III of 1895), section 3. This section applies to obscene talks, acts, gestures, etc. The section reads as, Whoever, to the annoyance of others, (a) does any obscene act in any public place, or (b) sings, recites or utters any obscene songs, ballad or word, in or near any public place,vshall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both.21 It is an essential requisite that the obscene act or song must cause annoyance. Annoyance refers to a mental condition and hence it has often to be inferred from proved facts. Where the accused addressed openly two respectable girls who were strangers to him, in amorous words

18 19

ILR (1952) Patiala 66 Peter Seago, Criminal Law, Oxford Publicationm, 3rd edition, 1989, p.253 20 K D Gaur, A Textbook On The Indian Penal Code, Universal Publications, 3rd edition, 2004, New Delhi p. 554
21

Ratanlal and Dhirajlal, The Indian Penal Code, Lexis Nexis, 30th edition, 2004, p.644

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suggestive of illicit sex relations with them and asked them to go along with him on his rickshaw, he was held to have committed an obscene act.22 4.4.1. Essential requisites to be proved Indecent exposure of ones person or sexual intercourse in a public place will be punished under this section. The prosecution must prove (i) that the accused did some act; or that the accused sang, recited or uttered any obscene song, ballad or words; (ii) that this was done in or near a public place; (iii) that it was of an obscene nature; (iv) that it caused annoyance to others. A FIR merely alleging the utterance of obscene words without mentioning the objectionable words is liable to be quashed, being vague. A conviction under this section for uttering an obscene abuse in a public place may amount to a conviction for an offence involving a breach of the peace within the meaning of section 106, Criminal Procedure Code, 1898 (same section of the 1973 code). Though offence under this section is not compoundable and any agreement between the parties to that effect is not enforceable in law, yet, where, the parties had entered into a compromise to withdraw all cases against each other and were divorced, the continuance of prosecution under this section would not achieve any beneficial result nor it would be in aid of achieving any social or public justice, which is the main aim of a criminal prosecution and, therefore, such prosecution would be liable to be quashed. The incidents of teasing school girls and passing remarks on them were becoming quite frequent and the courts could not pretend to remain oblivious of this fact. In the view of this fact s.294 laid down the period of maximum sentence to three months. Sections 292,293 and 294, IPC deal with the law relating to obscenity. None of the provisions under these sections cover indecent representation of women in publications and advertisements which play a pernicious role in degrading the mentality of a person. Accordingly, in 1986 the Parliament enacted the Indecent Representation of Women (Prohibition) Act, 60 of 1986 to effectively prohibit indecent representation of women through advertisements, publications, writings, paintings, figures, pamphlets, etc., and to provide punishment against those indulging in such nefarious activities. Section 294 helps in punishing those unconcerned persons who defame the other party in public by using their nefarious deeds. Such unconventional actions must be severely dealt with and the application of s.294 has been very helpful in this regard. It helps to check that a person on passing an obscene comment or remark does not go unescaped.

22

Zafar Ahmad v. State of U.P, AIR 1963 All 105

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4.5.

SECTION 509 OF THE INDIAN PENAL CODE

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 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 one year, or with fine or with both.23 An insult to the modesty of the woman is an essential ingredient of this offence. If a man exposes his person in an indecent way or used obscene words which intend that he should be heard or his obscene drawings should be seen, he is held to be an offender under s.509 of IPC. The intention to insult the modesty of woman must be coupled with the fact that the insult is caused. It means that the other party understands that he is insulted. If a person intrudes upon the privacy of a woman, then also he is considered to be liable under this section. The question of what constitutes an insult to female modesty requires no description. It is common knowledge that any word, spoken or written, any song, picture, or figure exhibited which suggests lewd thoughts is immoral and insulting to female modesty, unless the woman is a consenting party to it. Where an accused enters into a womans apartment and tries to catch hold of her and persuades her for sexual connection by removing garments, an offence under this section is registered.24 Likewise, when an accused sent a letter containing indecent overtures, lewd and filthy suggestions to an unmarried nurse, it was held that an offence was made out.25 Courts may have defined sexual harassment and also laid down comprehensive guidelines to be followed, but thats not quite the same as a statutory definition. Notice that annoyance is an important ingredient of the offence under Section 294 and this is associated with a mental condition. Notice that Section 294 also requires the annoyance to occur in or near a public place. While Section 509 has no such requirement, there is perhaps a case for enhancing the punishment to three years. The point to note is that Sections 294 and 509 fall short of physical contact. There are crimes of molestation that fall short of rape, but involve physical contact. As of now, there are no provisions in the IPC that cover these as a substantive offence. 4.5.1.
23 24

Section 509: Eve Teasing

Supra n.18 at pp.970-71 Bankey v. State of Bihar, AIR 1961 All 131 25 Tarak Das Gupta v. State of Madhya Pradeh, AIR 1926 Bom 159

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Section 509 basically deals with eve teasing and it serves as a deterrent in curbing the mounting indecency with which lewd and obscene remarks are passed onto the women in public places. A law to curb such an act was urgently required as it leads to lowering of self esteem of a person. However the repercussions are far reaching and at many a places its repetition has resulted in suicide and fatal attempts on ones life. In the case of Rupan Deol Bajaj26, a senior IAS officer, Rupan Bajaj wasslapped on the posterior body parts by the then Chief of Police, Punjab, K.P.S.Gill at a dinner party in July 1988. Rupan Bajaj filed a suit against him, despite thepublic opinion that she was blowing it out of proportion, along with the attemptsby all the senior officials of the state to suppress the matter. The Supreme Courtin January 1998 fined.K.P.S. Gill Rs. 2.5 lacs in lieu of three months rigorousimprisonment under Indian Penal Code, 1860 ss. 29427 and 509.The Supreme Court in the case of State of Maharashtra vs. Madhukar N.Mardikar28 held that: The unchastity of a woman does not make her open to any and everyperson to violate her person as and when he wishes. She is entitled toprotect her person if there is an attempt to violate her person against wish. She is equally entitled to the protection of law. Therefore merelybecause she is of easy virtue, her evidence may not be thrown overboard. 4.6. OTHER LEGAL PROVISIONS

Some of the provisions of law affecting women significantly and to safe guardwomen and their interests are as follows: 4.6.1. The Employees State Insurance Act, 1948; 4.6.2. The Plantation Labour Act, 1951; 4.6.3. The Contract Labour (Regulation and Abolition) Act,1976; 4.6.4. The Factories (Amendment) Act, 1986; 4.6.5. Indecent Representation of Women (Prohibition) Act, 1986; and 4.6.6. The Protection of Women from Domestic Violence Act, 2005.

26 27

RupanDeol Bajaj vs. Kanwar Pal Singh Gill (1995) 6 SC C 194. Whoever, to the annoyance of others- (a) does any obscene act in any public place, or (b) sings, recites, or utters any obscene song, ballad or words, in or near any public place, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or both. 28 State of Maharashtra vs. Madhukar N. Mardikar(1991) 1 SCC 57.

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CHAPTER V ANALYSIS OF PROTECTION OF WOMEN AGAINST SEXUAL HARASSMENT AT WORKPLACE BILL, 2010

5.1.

ENACTMENT OF BILL

The Union Cabinet has approved the introduction of the Protection of Women against Sexual Harassment at Workplace Bill, 2010 in the Parliament to ensure a safe environment for women at work places, both in public and private sectors whether organised or unorganized. The measure will help in achieving gender empowerment and equality. The Bill lays down the definition of sexual harassment and seeks to provide a mechanism for redressing complaints. It provides for the constitution of an Internal Complaints Committee at the work place and a Local Complaints Committee at the district and block levels. A District Officer (District Collector or Deputy Collector), shall be responsible for facilitating and monitoring the activities under the Act. 5.2. SALIENT FEATURES OF THE BILL ARE AS FOLLOWS:

The Bill proposes a definition of sexual harassment, which is as laid down by the Hon'ble Supreme Court in Vishaka v. State of Rajasthan (1997). Additionally it recognises the promise or threat to a woman's employment prospects or creation of hostile work environment as 'sexual harassment' at workplace and expressly seeks to prohibit such acts. The Bill provides protection not only to women who are employed but also to any woman who enters the workplace as a client, customer, apprentice, and daily wageworker or in adhoc capacity. Students, research scholars in colleges/university and patients in hospitals have also been covered. Further, the Bill seeks to cover workplaces in the unorganised sectors. The Bill provides for an effective complaints and redressal mechanism. Under the proposed Bill, every employer is required to constitute an Internal Complaints Committee. Since a large number of the establishments (41.2 million out of 41.83 million as per Economic Census, 2005) in our country have less than 10 workers for whom it may not be feasible to set up an Internal Complaints Committee (ICC), the Bill provides for setting up of Local Complaints Committee (LCC) to be constituted by the designated District Officer at the district or sub-district levels, depending upon the need. This twin mechanism would ensure

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that women in any workplace, irrespective of its size or nature, have access to a redressal mechanism. The LCCs will enquire into the complaints of sexual harassment and recommend action to the employer or District Officer. Employers who fail to comply with the provisions of the proposed Bill will be punishable with a fine which may extend to 50,000. Since there is a possibility that during the pendency of the enquiry the woman may be subject to threat and aggression, she has been given the option to seek interim relief in the form of transfer either of her own or the respondent or seek leave from work. The Complaint Committees are required to complete the enquiry within 90 days and a period of 60 days has been given to the employer/District Officer for implementation of the recommendations of the Committee. The Bill provides for safeguards in case of false or malicious complaint of sexual harassment. However, mere inability to substantiate the complaint or provide adequate proof would not make the complainant liable for punishment. 5.2.1. Implementation of Bill Implementation of the Bill will be the responsibility of the Central Government in case of its own undertakings/establishments and of the State Governments in respect of every workplace established, owned, controlled or wholly or substantially financed by it as well as of private sector establishments falling within their territory. Besides, the State and Central Governments will oversee implementation as the proposed Bill casts a duty on the Employers to include a Report on the number of cases filed and disposed of in their Annual Report. Organizations, which do not prepare Annual Reports, would forward this information to the District Officer. Through this implementation mechanism, every employer has the primary duty to implement the provisions of law within his/her establishment while the State and Central Governments have been made responsible for overseeing and ensuring overall implementation of the law. The Governments will also be responsible for maintaining data on the implementation of the Law. In this manner, the proposed Bill will create an elaborate system of reporting and checks and balances, which will result in effective implementation of the Law.

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CHAPTER VI CASE ANALYSIS OF VISHAKHA V. STATE OF RAJASTHAN

6.1.

INTRODUCTION

Vishaka case29 of sexual harassment at workplace is a case of landmark judgment by Supreme Court of India. Not because it was attack on working womens fundamental right to work without fear and prejudice. Not because it is a saga of immense torture of a nave working woman. Not because a woman showed exemplary courage to fight against the male ego our immoral society. It is a landmark case because first time ever it was officially recognized at such a high level of need for laws for sexual harassment and laying down of guidelines of sexual harassment of working woman. Till 1997 even after Indias independence of 50 years there was hardly any law to safeguard sexual harassment of working women. The women harassment bill, 2010 is still being worked out.30 And there is no special law to safeguard sexually harassed working women, just some guidelines from different courts in India, more importantly from Supreme Court of India are present. 6.2. IMPORTANT OBSERVATIONS OF THE COURT:31 1. Gender equality includes protection from sexual harassment and right to work with dignity as per our constitution. 2. Extra hazard for a working woman compared her male colleague is clear violation of the fundamental rights of Gender Equality & Right to Life and Liberty. 3. Safe working environment is fundamental right of working woman. 4. In no way working women may be discriminated at workplace against male employees. (If a woman is, then it must be documented in company policies, for example limitation of women in police and armed forces) 5. Working with full dignity is the fundamental right of working women. 6. The right to work as an inalienable right of all working women 7. The right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction (pregnancy, maternity & nursing etc) is fundamental right of working women
29 30

AIR 1997 SUPREME COURT 3011 Retrieved from http://timesofindia.indiatimes.com/topic/Women-Harassment-Act on 13/4/2012 at 4:00 P.M 31 Retrieved from www.indiankanoon.org/doc/1031794/ on 13/4/2012 at 4:00 P.M

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6.3.

FOLLOWING CAN BE TERMED AS SEXUAL HARASSMENT 1. Anything at work that can place the working woman at disadvantage compared to other male employees in her official career just because she is a woman can be termed as sexual harassment 2. Unwelcome sexually determined behaviour & demands from males employees at workplace: 3. any physical contacts and advances 4. sexually colored remarks 5. showing pornography 6. passing lewd comments or gestures 7. sexual demands by any means 8. Any roumors/talk at workplace with sexually colored remarks about a working woman. Even spreading rumour about a womans sexual relationship with anybody

6.4.

EMPLOYERS DUTY

6.4.1. It is an obligatory requirement for employers: 1. Appropriate notification/advertisement to be issued for prohibition of sexual harassment at workplace for the employees of the company. 2. State government, central government and PSU bodies to include in their conduct and discipline rules/regulations prohibiting sexual harassment plus mention of penalties for those found guilty of sexual harassment. 3. For private employers, prohibition of sexual harassment and penalties to be included in the standing orders under the Industrial Employment (Standing Orders) Act, 1946. 4. Employers need to provide conducive & appropriate work conditions for women staff in the view of work, health, hygiene & leisure. In short there mustnt be any conditions creating hostile environment towards working women staff and any conditions which could put women at an disadvantage position with regards to her career compared to other male employees of the company. 5. The employer will need to have a written complaint mechanism which will need to include time frame of resolution of sexual harassment claims. 6. Employer should help the victim phychologically with counselling etc. 7. Employer should maintain confidentiallity of the complaint and the identity of the woman who raised the complaint and complaint specifics.

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8. Employers are bound to inform the details of sexual harassment complaints to appropriate government bodies/labour department etc, every year. In short itll be illegal to hide any sexual harassment complaints raised in the company or with the employer and not report to government authorities. 9. Employer should allow and encourage the employees to raise sexual harassment issues in workers meetings and at appropriate forums. And all those complaints need to be affirmatively discussed. In other words the employer must provide easy way to discuss sexual harassment issues and should not show any lack of interest. 10. In workplace by prominently notifying the guidelines by appropriate means ( like sending emailers, sending letters, displaying rules on notice boards) 11. If the sexual harassment is due to third party that is not anything related to the employer but by another person from different organization which you interacted with him as part of discharging your official duties whether in office space or outside, then the employer will need to take all necessary steps to assist and help the victim in the terms of support & preventive action. 6.4.2. Employers duty after receiving a sexual harassment complaint. The employer must assess the crime and if required legally, it must register complaint with appropriate government authorities. For major sexual harassment cases, it behoves on the employer to immediately bring the issue to notice of local Police and also nearby women cells. The employers should not delay filing a police complaint just try to save its companys image. The employer will need to ensure that the victim is not further traumatized or victimized. Employer must not persecute the victim in any way due to a womans complaint. 6.4.3. Setting up of Complaint Committee by the employers 1. Committee should be headed by a woman 2. More than 50% of committee members should be women 3. The committee should also consist of third party members not affialiated to the company or employer in anyway. Preferably, from NGOs, women right activists familiar to the issue of sexual harassment. If youre a victim then you should be quite vigilant to this member as every company/employer tries to include their "friends" in such committees which will not object to the decisions made by the committee

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members on their payrolls and loyal to the company, prejudicing the sexually harassed woman. If it is the case, then please contact us immediately.

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CHAPTER VII INTERNATIONAL CONVENTIONS

7.1.

HISTORICAL DEVELOPMENT

The World Human Rights Conference in Vienna, first recognised gender-based violence as a human rights violation in 199332. The Declaration on the Elimination of Violence against Women (1993) defines violence against women: any act of gender-based violence that results in, or is likely to result in, physical, sexual or mental harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life33. This encompasses, inter alia, physical, sexual and psychological violence occurring in the family and in the general community, including battering, sexual abuse of children, dowryrelated violence, rape, female genital mutilation and other traditional practices harmful to women, non-spousal violence and violence related to exploitation, sexual harassment and intimidation at work, educational institutions and elsewhere, trafficking in women, forced prostitution, and violence perpetrated or condoned by the state34. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted in 1979 by the UN General Assembly, is often described as an international bill of rights for women. Consisting of a preamble and 30 articles, it defines what constitutes discrimination against women and sets up an agenda for national action to end such discrimination. The Convention defines discrimination against women as "...any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field." By accepting the Convention, States commit themselves to undertake a series of measures to end discrimination against women in all forms, including:

32 33

Retrieved from http://www.unhchr.ch/huridocda/huridoca.nsf/(Symbol)/A. CONF.157.23.En. SheelaSaravanan, Violence Against Women in India: A Literature Review,Institute of Social Studies Trust( ISST), 2000. 34 supra note 12 at p. 11

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1. To incorporate the principle of equality of men and women in their legal system, abolish all discriminatory laws and adopt appropriate ones prohibiting discrimination against women; 2. To establish tribunals and other public institutions to ensure the effective protection of women against discrimination; and 3. To ensure elimination of all acts of discrimination against women by persons, organizations or enterprises. The Convention provides the basis for realizing equality between women and men through ensuring women's equal access to, and equal opportunities in, political and public life -including the right to vote and to stand for election -- as well as education, health and employment. States parties agree to take all appropriate measures, including legislation and temporary special measures, so that women can enjoy all their human rights and fundamental freedoms. The Convention is the only human rights treaty which affirms the reproductive rights of women and targets culture and tradition as influential forces shaping gender roles and family relations. It affirms women's rights to acquire, change or retain their nationality and the nationality of their children. States parties also agree to take appropriate measures against all forms of traffic in women and exploitation of women.Countries that have ratified or acceded to the Convention are legally bound to put its provisions into practice. They are also committed to submit national reports, at least every four years, on measures they have taken to comply with their treaty obligations. In recent years, United Nations Development Fund for Women(UNIFEM) has created a diversity of platforms for women in India to come together, voice their concerns and collaboratively devise sustainable and responsive strategies that effectively rid their lives of the fear, degradation and suffering that all forms of harassment bring. 7.2. THE CONVENTION
ON THE

ELIMINATION

OF

ALL FORMS

OF

DISCRIMINATION

AGAINST WOMEN (CEDAW)

The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted in 1979 by the UN General Assembly, is often described as an international bill of rights for women.35 Consisting of a preamble and 30 articles, it defines what constitutes discrimination against women and sets up an agenda for national action to

35

Retrieved from www.un.org/womenwatch/daw/cedaw/ on 13/4/2012 at 3:00 P.M

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end such discrimination.36The Convention defines discrimination against women as "...any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field." By accepting the Convention, States commit themselves to undertake a series of measures to end discrimination against women in all forms, including:
1.

to incorporate the principle of equality of men and women in their legal system, abolish all discriminatory laws and adopt appropriate ones prohibiting discrimination against women;

2.

to establish tribunals and other public institutions to ensure the effective protection of women against discrimination; and

3.

to ensure elimination of all acts of discrimination against women by persons, organizations or enterprises. The Convention provides the basis for realizing equality between women and men through ensuring women's equal access to, and equal opportunities in, political and public life -including the right to vote and to stand for election -- as well as education, health and employment. States parties agree to take all appropriate measures, including legislation and temporary special measures, so that women can enjoy all their human rights and fundamental freedoms. The Convention is the only human rights treaty which affirms the reproductive rights of women and targets culture and tradition as influential forces shaping gender roles and family relations.37 It affirms women's rights to acquire, change or retain their nationality and the nationality of their children. States parties also agree to take appropriate measures against all forms of traffic in women and exploitation of women. Countries that have ratified or acceded to the Convention are legally bound to put its provisions into practice. They are also committed to submit national reports, at least every four years, on measures they have taken to comply with their treaty obligations.38

36

Retrieved from www.britannica.com/.../Convention-on-the-Elimination-of-All-Forms on 13/4/2012 at 3:15 P.M 37 Retrieved fromhttp://www2.ohchr.org/english/law/cedaw.htm on 12/4/2012 at 10:00 A.M 38 Retrieved from www.un.org/womenwatch/daw/cedaw/ on 13/4/2012 at 3:00 P.M

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CHAPTER VIII AN ASSESSMENT OF ISSUE AND CURRENT SCENARIO

8.1.

THE REALITY

Despite laws, governments plan of action, the international conventions and the claims made by authorities the real picture of legal and social protection is far from theory. The data shows that in every three minutes, one crime was committed against women in India in 2002 and it is expected that the growth rate of crimes against women would be higher than the population growth rate by201039. In recent years, there has been an alarming rise in atrocities against women in India, every 26 minutes a woman is molested, every 34 minutes a rape takes place, every 42 minutes a sexual harassment incident occurs, every 43minutes a woman is kidnapped, and every 93 minutes a woman is burn to death for dowry. One quarter of the reported, rapes involve girls under the age of 16but the vast majority is never reported. Although the penalty is severe, convictions are rare40. Despite Supreme Court directives women are still harassed at working place. Social compulsion and legal complexities compel a woman to suffer indignities and torture until she has no other option but to put an end to her life. In a study sponsored by Population Council it was suggested that there is a need for an appropriate implementation mechanism that recognises the obstacles posed by power imbalances and gender norms in empowering women to make a formal complaint on the one hand and in receiving appropriate redress on the other41. In most of the cases accused get acquitted because of lack of proper proof. Kiran Bedi42 described rape as a failure of the state and society in carrying out their duties properly. She said that the criminal justice system in our country is tardy and cumbersome and many times works more for the rights of the accused than the victim and in many cases the victims shy away from seeking police help because they are not at all sure of the response they will get. Thus, in spite of a plethora of progressive and protective legislations favouring women, we have failed in our aims to uplift the social status of Indian woman. Proper implementation of these laws will go a long way in curbing crimes against women and improving socio39 40

NCRB Crime in India, 2002. Dr. A. Krishna Kumari, Violence From Cradle To Grave, available athttp://ssrn.com/abstract=970171. 41 Sexual Harassment at Workplace Continues The Hindu, 21 October 2006. 42 Purnima S. Tripathi, Rehabilitation concerns, Frontline, vol. 20, 2003.

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economic status of women. In view of the atrocities against women - the legislature amended the Indian Penal Code, 1860 (s. 304-B: Dowry Death and s. 498-A: Cruelty) In spite of the amendments and new laws (Domestic Violence Act, 2005) the violence is seen everywhere, even at workplaces43. Theoretically, the victims must complain to competent authority about the harassment, but we have to find out the reason why they fail to file immediately a formal complaint about harassing conduct44. Women who reported sexual harassment were perceived as higher in qualities of assertiveness, they too were perceived as less trustworthy and less feminine. Additional result suggests that both men and women thought that members of the opposite gender would derogate the woman if she labelled and/or reported the incident45.One of the major obstacles in delivering justice in sexual harassment cases is the poor quality of investigations. The reason behind this is gender bias and inefficiency of the police. Police corruption undermined efforts to combat the offences. In a study conducted by Transparency International it was found that in India the judiciaries are constitutionally independent but this independence is often not reflected in practical terms46. So there is a need to make corruption free to all our machinery related to law.

43 44

Krishna Kumari, Areti, Violence from Cradle to Grave Hebert, L. Camille, Why Don't 'Reasonable Women' Complain about Sexual Harassment?, 82 Indiana L. J. (2006). 45 Amy J. Marin and Rosanna E. Guadagno, Perceptions of Sexual HarassmentVictims as a Function of Labelling and Reporting, 41 Sex Roles (1999) pp. 921-940. 46 SalahuddinAminuzzaman, A Regional Overview Report on National IntegritySystems in South Asia, Transparency Internationals South Asia RegionalWorkshop on National Integrity systems, Karachi, Pakistan, December 2004.

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8.2.

PRACTICAL PROBLEMS IN IMPLIMENTING LAWS

Unfortunately, while the crime is very well organised and continues unabated, its detection and punishment does not mach it, there is sometimes a lack of co-ordination between the laws and the law enforcement between the place of removal or disappearance of the victim and place of landing or lodging of the victims47. The roots of this violence are buried deep into the social structure, which is underpinned by the patriarchal male-dominant ideology. This value system cuts across the caste and class divisions; yet some differences may be detected. The higher incidence of sexual harassment and the deeply entrenched concept of family honour lead to a lot of concealed violence in the upper socio economic strata. Redress through the legal system is more a theoretical than a practical possibility, because even the new and supposedly progressive legal enactments display an in-built patriarchal and sometimes openly anti-women bias. But at least it is a step in the right direction. What gives hope for a better future is the fact that feminist lawyers and activists are alert, articulate and persistent in campaigning for better legislation to protect womens rights (without jeopardising the civil rights of others involved), in disseminating knowledge of womens rights among the general population (for instance, Flavia, 1990 and 1992), and in monitoring new developments on the legal and social fronts in order to ultimately create a gender egalitarian society48. While women in the west had to fight for over a century to get some of their basic rights, like the right to vote, the Constitution of India gave women equal rights with men from the beginning (that is equality for all). Unfortunately, women in this country are mostly unaware of their rights because of illiteracy and the oppressive tradition. It was found that in Asian countries the socio-cultural and religious constraints hamper the implementation of legal reforms, and women fail to take advantage of the new opportunities accorded to them by such reforms. They are either ignorant of these reforms or unable to overcome the traditional norms in which they were brought up49. In a study on the sexual rights of women in south it was found that In south-asia the process of sexual right is fraught with obstacles, among which are taboos concerning the meaningful public discussion
47

PoonamPradhanSaxena, Immoral Traffic in Women and Girls: Need for Tougher Laws and Sincere Implementation, 44 JILI (2002),pp. 504-533. 48 Violence Against Women: Report From India And The Republic Of Korea, UNESCO 1993, Published By The UNESCO Principal Regional Office For Asia And The Pacific, Bangkok, Thailand. 49 United Nations Development Fund for Women (UNIFEM) Report, 2003, Not a Minute More: Ending Violence Against Women. New York.

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of sexuality, and negative attitudes towards womens sexual autonomy. It is also affected by the negotiations of, and contests for, political power among the different ethno -religious communities in a South Asian state, which in turn may constrain progressive law -makers from developing and implementing legislation favourable to the realisation of womens sexual rights50. 8.3. STEPS TO BE TAKEN TO IMPROVE THE CONDITION OF WOMEN

8.3.1. At Social Level Lack of awareness is a major problem, the general acceptance of mens superiority over women and denial of violence by the women themselves due to social and cultural attitudes are some key issues related to harassment of women. A recent Australian appeal is examined to show that despite significant verbal hygiene51 traces of discrimination against women are still linguistically discernable. This suggests that simply changing language will not change attitudes. Rather, for women to be treated well in rape cases, their voices and experiences need to be represented appropriately52. Therefore, our approach must be to spoil the root cause. We have to eliminate crime not criminal. To understand the impact of sexual harassment on women one must listen to the account of its victims as no one conveys the meaning and truth of sexual harassment better than the women who have endured it. It is possible that women will internalise male perceptions of sexual harassment and blame themselves for having brought on the harassment53. Therefore, the society must provide a strong psychological environment to the sufferer. By proper education and awareness programme we have to demolish the fort of orthodox thoughts. Exploitation and abuse of women, including outright violence, are acceptable in countries where women have an inferior social status by customary or formal law. Sexual violence against women and girls is a direct corollary of their subordinate status in society. Primitive cultures have beliefs, norms, and social institutions that legitimise and therefore perpetuate violence against women. Abused women in developing countries tend to accept

50

Y. Tambiah, Realizing Womens Sexual Rights: Challenges in South Asia, 67Nordic J. Intl L.(1998) pp. 97105. 51 D. Cameron, Verbal Hygiene, Routledge, London, 1995. 52 Annabelle Mooney, When A Woman Needs To Be Seen, Heard And WrittenAs A Woman: Rape, Law And An Argument Against Gender NeutralLanguage, 19 Int'l J. for the Semiotics of Law 2006, pp. 39-68. 53 L. Camille Hebert, Why Dont Reasonable Women Complain About SexualHarassment?, 62 Indiana L. J. (2006).

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their inferior status and to adopt the traditional values of submission and servility54.Therefore, the societal status of women must be elevated to remove gender disparity. 8.3.2. At Legal and Administrative In assessing Indias progress in human rights, sexual harassment of women is one of the neglected dimensions in the struggle for international human rights. Indias position is not better than China where justifications for lack of a sexual harassment law is that Chinas polity eschews a moral and political responsibility to redress sexual harassment. They are addressing the problem by political rhetoric, rather than implementing effective legal safeguards55. The long time that is taken to complete a harassment trial often by allowing senseless adjournments; and the giving of evidence by the victim in the presence of the accused and the harsh cross examination in the Court are some other major obstacles. The main thing that courts may tell researchers/investigators is what are the relevant legal assumptions and behaviours to investigate. Constructs such as sexual harassment, totality of the circumstances and reasonable person/woman do not have unambiguous definitions. A great deal of cynicism exists regarding police action. Women said that even when they have gone ahead to complain to the police nothing has been done about it. So Government has to develop efficient and responsible legal and administrative machinery. As observed by Krishna Iyer, J. in Rafiques case:when a woman is ravished, what is inflicted is not mere physical injury but the deep sense of some deathless shame judicial response to human rights may not be blunted by legal bigotry. Therefore the laws in order to be of great deterrence must have a cooperative victim, professional investigation, diligent prosecution; and an expeditious trial. For otherwise it will not be the law, that fails, but the applicants, he process and application. 8.3.3. At Legislative level In India, there is an urgent need of statutes like those in UK and USA. Statutes in UK (The Protection from Harassment Act 1997, and The Criminal Justice and Public Order Act 1994) and in USA (New Hampshire RSA 354-A and Title VII of the federal Civil Rights Act of 1964) protect the women from sexual discrimination and sexual harassment. Furthermore, the U.S. Supreme Court jurisprudence is emphasising on to set out the contours of employer liability for harassing behaviour by employees, employers must be liable for harassment that
54

Michelle Fram Cohen, The Condition of Women in Developing and DevelopedCountries, XI The Independent Rev., (2006), pp. 261 274. 55 UlricKillion, Post-WTO China: Quest for Human Right Safeguards in Sexual Harassment Against Working Women, 12 Tul. J. Int.& Comp. L. (2004) pp. 201-235.

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results where the employer allows, fosters, or fails to correct workplace conditions that are likely to give rise to the typical harassment behaviours56.

56

Seaman, Julie, Form and (Dys)Function in Sexual Harassment Law: Biology, Culture, and the Spandrels of Title VII, 37 Arizona St. L. J. 321( 2005).

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CHAPTER IX CONCLUSION
As observed by Justice Saghir Ahmad57,Unfortunately a woman in our country belongs to a class or group of society who are in an disadvantaged position on account of several social barriers and impediments and have therefore, been victims of tyranny atthe hands of men with whom they, unfortunately, under the Constitution enjoy equal status. Failure of law reflects the failure of the society to protect and serve humanity. So the courts and the legislature have to make many changes if the laws of women harassment are to be any deterrence. There is a wide debate in India on the issue that whether laws hold promise of justice for women who have been victims of violence. At the same time a need is felt to compliment this with critical evaluation of new modes of governance and surveillance. Some preventive steps to keep a check on the cases of sexual harassment are quite necessary. This goal can be achieved when sexual harassment is completely prohibited so that such incidents may be notified and circulated. Provisions for appropriate working conditions for women should also be made. Legal mechanisms cannot be the sole solution in curbing the increasing incidents of sexual harassment. At some place and time it is very much required that the apathy and fear of the public concerned with such events should last. If people will be always frightened to speak to demand their rights, then law cannot come for them as a savior. An initiative on the part of public is also required. It is of utmost necessity that such values are to be promoted which detest and vociferously oppose such decadent practices existing in the society. People must be conscious of their rights so that they can avail full benefit out of them. If a person is ignorant of what his rights are then at many a times he is not even in a position to understand the nature of injustice which was just inflicted on him. And there is still a problem with going to court on such matters, especially if Sections 354 and 509 cannot be invoked. After all, an FIR has to spell out the nature of the offence. And also spell out whether the crime is bailable and cognizable. The law commission (172nd report on Review of Rape Laws, March 2000) recommended insertion of Section 376E in the IPC to cover unlawful sexual conduct. The NCW repeats this recommendation. The task force on women and children seems to favor the broadening of the definition of rape to cover
57

Supra note 4 at p. 5.

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sexual assault also. It is definitely a better idea to introduce section 376E dealing with sexual assault.

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BIBLIOGRAPHY

Books
1. Gaur, K.D., A Textbook on Indian Penal Code, Universal Law Publishing Company, Delhi, 2007. 2. Gaur, K.D., Commentary on Indian Penal Code, Universal Law Publishing Company, Delhi, 2007. 3. Indian Law Institute, Essays on the Indian Penal Code, Indian Law Institute, New Delhi, 2004 4. Kenny, R., Outlines of Criminal Law, Universal Law Publishing Company, Delhi, 2006. 5. Mishra, S.K., Criminal Law of India (Indian Penal Code), Allahabad Law Agency, Faridabad (Haryana), 2006. 6. Misra, S.N., Indian Penal Code, Central Law Publications, Allahabad, 2006 7. Pillai, K.N.C., Essays on Indian Penal Code, Indian Law Institute, New Delhi, 2010. 8. Ratanlal and Dhirajlal, The Indian Penal Code, LexisNexis Butterworths Wadhwa, Nagpur, 2008. 9. Sarvaria, S.K., RA Nelson Indian Penal Code, LexisNexis, ButterWorths, Nagpur, 2008. 10. Saxena, R.N., Indian Penal Code, Central Law Publication, Allahabad, 16th Edition, 2006. 11. Singh, G.P., Ratanlal Dhirajlals Law of Torts, Wadhwa Publications, Nagpur, 2008 12. Tandon, Rajesh, Indian Penal Code, Allahabad Law Agency, Faridabad (Haryana), 2006 13. The Information Act, 2000, Criminal Manual, Universal Law Publishing Co. Pvt. Ltd., New Delhi, 2001.

LEGISLATIONS Constitution of India, 1950. Indian Penal Code, 1860. Information Technology Act, 2000. The Code of Criminal Procedure, 1973.

Acadamic Articles
Amy J. Marin and Rosanna E. Guadagno, Perceptions of Sexual HarassmentVictims as a Function of Labelling and Reporting, 41 Sex Roles (1999) pp. 921-940 ........................................................... 39

P a g e | 46 Annabelle Mooney, When A Woman Needs To Be Seen, Heard And WrittenAs A Woman: Rape, Law And An Argument Against Gender NeutralLanguage, 19 Int'l J. for the Semiotics of Law 2006, pp. 39-68. ................................................................................................................................................ 41 Hebert, L. Camille, Why Don't 'Reasonable Women' Complain about Sexual Harassment?, 82 Indiana L. J. (2006) ........................................................................................................................... 39 L. Camille Hebert, Why Dont Reasonable Women Complain About SexualHarassment?, 62 Indiana L. J. (2006). .......................................................................................................................... 41 MeenaRao, Ramification of Harassment of women, 43 JILI, 2001 pp. 305-335. .............................. 16 Michelle Fram Cohen, The Condition of Women in Developing and DevelopedCountries, XI The Independent Rev., (2006), pp. 261 274. .......................................................................................... 42 PoonamPradhanSaxena, Immoral Traffic in Women and Girls: Need for Tougher Laws and Sincere Implementation, 44 JILI (2002),pp. 504-533................................................................................... 40 Reba Som, Jawaharlal Nehru and The Hindu Code: A Victory of Symbol Over Substance?, Modern Asian Studies, 1994 pp. 165-194 ...................................................................................................... 14 Seaman, Julie, Form and (Dys)Function in Sexual Harassment Law: Biology, Culture, and the Spandrels of Title VII, 37 Arizona St. L. J. 321( 2005)................................................................... 43 SheelaSaravanan, Violence Against Women in India: A Literature Review,Institute of Social Studies Trust( ISST), 2000. ........................................................................................................................... 35 UlricKillion, Post-WTO China: Quest for Human Right Safeguards in Sexual Harassment Against Working Women, 12 Tul. J. Int.& Comp. L. (2004) pp. 201-235. ................................................... 42 Y. Tambiah, Realizing Womens Sexual Rights: Challenges in South Asia, 67Nordic J. Intl L.(1998) pp. 97-105. ........................................................................................................................................ 41