Ever since the Vishakha guidelines were inducted in the form of The Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act, 2013 (herein referred to as the Act) by the Supreme Court in 1997 through the landmark judgment of Vishakha v. the State of Rajasthan, India has seen a paradigm shift in its perception of law and society through a modernized and much-nuanced phase of development setup. The Sexual Harassment of Women (Prevention, Prohibition and Redressal) Act 2013 defines sexual harassment to include any one or more of the following unwelcome acts or behavior (whether directly or by implication) namely:
- physical contact and advances
- a demand or request for sexual favors
- making sexually colored remarks
- showing pornography
- any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
Law is amongst the unsung heroes of a thriving and vibrant democracy, owning to the dynamic nature of our silent warrior. It adapts, improvises and successfully defends the needy under all circumstances. Gender equality has “equality” as its suffix, although the focus has always been titled either way, and the equilibrium could never be achieved. The emphasis of gender equality in modern days has increased multiple folds, and laws are to be made equal for everyone since the article 14 of the constitution obliges us to do so. In India, Oxfam India and the Social and Rural Research Institute jointly carried out a study titled Sexual Harassment at Workplaces in India 2011-2012 covering 400 working women in Delhi, Mumbai, Bangalore, Chennai, Kolkata, Ahmedabad, Lucknow, and Durgapur. Of the 400 respondents, 66 faced a cumulative 121 incidents of sexual harassment. Out of 121 incidents, 102 were reported to be non-physical, whereas the remaining 19 incidents were physical. Ninety-three of the respondents reported awareness of sexual harassment of women at the workplace. However, a majority of the victims did not resort to any formal action against the perpetrators.
The Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act, 2013 was put in place to defend the position of a woman inside an office and provide them with a safe environment to progress against the social stigma of homophobia at the workplaces at the time of commencement of the Act. Times have changed, outdated systems have been usurped by a modern pragmatic approach.
Bridging The Gap
While the Act itself has been solely dedicated to the protection of women, a question that looms large is whether men are subjected to sexual harassment at the workplace or not? If the Protection Of Children from Sexual Offences Act, 2012 has been made gender-neutral and recognizes a male child being exposed to the threat of sexual offenses at par with a female child, why have the penal statutes blatantly ruled out the possibility of a man being subjected to sexual offenses? Exclusion from Rape and Sexual Harassment is a definite signification of the law, placing equivocal assumption towards a specific gender. The decriminalization of section 377 upheld the judicial appreciation of the existence of a male/male or female/female relationship; however, the existence of such a relationship is a farcical reality for the masses of this country. Judiciary has always been a vigilant flagbearer in breaking the ice, and it needs to step-up one more time. The Act needs an amendment and shall incorporate the protection of men and transgender people from sexual harassment at the workplace. The inclusion of the term “aggrieved person” will give the law its much-needed facet of neutrality and even equality amongst all the three genders. For the society at large, sexual harassment impedes the achievement of equality between men and women as it condones sex discrimination and sexual violence, and has detrimental effects on the development of the country as a whole and the well-being of people.
The Act has a special place in the penal statutes due to its inclination towards ensuring the safety of women through its set of dedicated provisions for the cause. One of the provisions of the Act makes it necessary that the Presiding Officer under the Internal Committee, i.e. IC shall be a women employee of the Organization. The introduction of such a clause can be well-linked with the factor of women comforting and enabling the procedure to develop as a friendly means of redressal for the woman. There are numerous possibilities where a female officer may not be available at the Organization, under such circumstances to prevent any unnecessary delay in commencement of procedure there shall be two officers and not one assigned with the role of carrying out the procedures of the IC. It is also to be maintained that in case of unavailability of one of the presiding officers, the other shall be kept in charge of the entirety of the commencement of IC.
One of the most common loopholes in any Act made for a gender-specific is its prejudice towards the same gender. It is commonly evident that an Act made for the welfare or protection of Women will be absolute in nature and absolve the same of any liability (if arises) as a consequence of misuse of the impugned Act. Section 14 of the Act states that when the complainant has been found guilty of maliciously reporting any incident or using a forged document in the course of the inquiry, IC may recommend action against the complainant. The use of the term “may”, takes away all the weight of such an inhumane act where a woman tries to wrongfully construe a serious offense against an innocent person. The word “may” should be replaced with “shall”.
It has been provided in the Act that a presiding officer of the Internal Committee shall hold office for a tenure of three years, and it also provides for the procedure of removal of the officer under distinct circumstances. However, the act has not appreciated the fact that a clause pertaining to the reappointment of the officer shall also be included. It will facilitate the procedural aspect of the Act and make it efficiently comprehensive. Section 6 of the Act ensures the confidentiality of the complaint and the inquiry proceedings; however, it does not clearly mention as against whom does the maintainability of such provision exists. Whether it is inclusive of the respondent, witnesses, and the members of the IC or not? A clearer depiction shall bring lucidity to the Act and it can also specifically state that the Section will not apply to the Complainant or the Respondent to exercise their rights under Section 18 of the Act.
It is not a farcical possibility where two distinct employers share a commonplace of work and under these circumstances, there may be a case the complainant and respondent may be working for different employers at a common workplace. Section 11 of the Act states that the internal committee is constituted from the respondent’s side, a provision to constitute a joint internal committee shall provide a fair and impartial inquiry into the matter.
The act instates a stern believe of safety into the minds of women working across various places in our country. The principle of always striving to be better shall be applicable here to the fullest as inclusion of certain provisions as suggested in the article would ensure much better applicability of the Act. The approach towards a gender-neutral society requires its most optimal pillar to contribute to the fullest.