Legal Protections Against Sexual Harassment In The Unorganised Sector
Author: LawSphereX
Category: General Law
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LEGAL PROTECTIONS AGAINST SEXUAL HARASSMENT
IN THE UNORGANISED SECTOR Siddhi Poddar, Vaani Parashar & Purva Parashar, Symbiosis Law School, Hyderabad
ABSTRACT
This paper evaluates the prevalent issue of sexual harassment faced by women in the unorganised sector of the economy in India. Even with the presence of legal frameworks such as the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, women present in the industry still continue to experience and face harassment due to improper enforcement mechanisms and a lack of awareness. This research involves a critical analysis of the landmark cases revolving around this issue. The research employs empirical methods by a critical analysis of the various cases over the years; analysing them and drawing relevance with the challenges faced by the women in the industry. The research throws light on the socio-economic vulnerability that reduces women in the unorganised sector particularly susceptible to abuse.
The study divulges that imbalance in power and hierarchy at the workplace, informal mode of work arrangement, and further a fear of job loss, prevents many potential victims from reporting harassment. Through this critique of the issue, it can be imbibed that there is a strong need for advocacy of legal protections, and it can be achieved through the mentioned plausible solutions through policies, institutional support systems, and awareness programs, that safeguard the rights of women in the construction sector. The paper overall focuses on gender justice and protection of women against the offence. Keywords: Legal Protections, Sexual Harassment, Women, Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, Unorganised Sector.
Legal Protections Against Sexual Harassment in the Unorganised Sector The unorganised construction sector in India, due to poverty and the desperation to earn money, consists of millions of workers. Being an informal sector, it does not have any job security, which results in the workers, especially women, being put at a disadvantage, including, but not restricted to, low wages, unsafe working conditions, and sexual harassment. Despite being one of the largest industries, the workers often lack safeguards against their exploitation. While the statute, Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 20131, does deal with the broader aspect of harassment in work place, there needs to be another statute in place that precisely deals with the niche area of harassment in the unorganised sector, which will be dealt with in more detail further in.
The POSH Act2 came into place because of a landmark case of Vishaka & Ors. v. State of Rajasthan & Ors3. The case is about a social worker, called Bhanwari Devi. She was working in the Women’s Development Program under the Government of Rajasthan. In furtherance of her job, she had to stop a child marriage, and she even called the police on the family going forward with the illegal act. However, even after knowing that child marriage was illegal, the family went ahead and got the infant girl married. Later, when they found out that the police were called on them because of Bhanwari, she was boycotted and her job was lost amid it all. Later, five guys viciously gang-raped her and beat her husband in an attempt to exact revenge. The police tried all ways to not register her case, and she was discouraged by authorities from doing so.
However, she didn’t give up and finally her medical examination was taken after 52 hours, and the report bore no mention of any rape. Bhanwari approached the trial court, however the accused were acquitted due to lack of sufficient evidence. A group of women’s rights activists, under the name of ‘Vishaka’ filed a Public Interest Litigation (PIL), contesting against the trial court’s judgement, and raised awareness of the violation of several fundamental rights and the need for protection of women against sexual harassment in workplace. It was held in the Hon’ble Supreme Court that there was a lack of proper statutes dealing with 1 Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (Act 14 of 2013).
2 Ibid.
3 Vishaka & Ors. v. State of Rajasthan, AIR 1997 SC 3011.
such a case. And hence, the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 20134, came into place. The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 20135, also known as POSH for the sake of brevity, provides women protection against sexual harassment particularly in their places of work and also provides for redressals for the same. By evaluating a few sections that are relevant to the unorganised sector, it will be concluded that the need for a separate legislation dealing with sexual harassment in the unorganised sector is imperative. Section 2(g)6 of the Act defines “employer” as a broad concept of anyone who manages, supervises and controls the workplace.
This is helpful for the unorganised sector in particular as usually formal employers are not duly recognised in the sector and the position of such employers keep changing from one person to another, leading to a weak sense of accountability in them. However, in the unorganised sector, the employers are usually multiple, or the employees are hired on a day-to-day basis, having to live hand-to-mouth, hence making it hard to pinpoint who shall be accountable. Section 2(n)7 of the Act defines the broad scope of the different kinds of sexual harassment that can take place in a work space. It includes both overt and subtle kinds of actions, like physical contact, a demand for sexual favours, making remarks etc.
This is inclusive of the unorganised sector in the sense that in such an environment, where there is no accountability for any action, having a broad scope of harassment aids the victims in speaking up about it. However, due to lack of awareness and information about it in the unorganised sector, and due to the fact that the victims themselves don’t realise what constitutes as sexual harassment in such an industry because the target employees of such employers are uneducated people, they don’t realise the extent of their own rights. Section 2(p)8 defines “unorganised sector” and it extends the reach of POSH to the unorganised
4 Ibid.
5 Ibid.
6 Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (Act 14 of 2013), s. 2(g). 7 Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (Act 14 of 2013), s. 2(n). 8 Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (Act 14 of 2013), s. 2(p). sector, which is important, given the fact that a large portion of India’s women’s population are employed in the unorganised sector like domestic work, agriculture, etc. However, it fails to address proper redressal mechanisms for the same. Unorganised sector does not have formal complaint forums in place. And the women in this sector do not have stable employment relationships or access to redressal forums like those in the organised sector.
The Act relies on Local Complaints Committee for the registration of complaints but they often lack proper facilities to take care of such complaints; and not just that, the fact that the women in remote areas working in the unorganised sector, are not at all aware of such facilities also results in less registered complaints. Section 39 deals with the prevention of sexual harassment. It puts the onus of making sure the work space is a harassment-free area on the employer. However, in the unorganised sector, this is often overlooked by employers due to lack of accountability in making sure the environment is safe for everyone. Moreover, due to the domination of men in a few jobs in the unorganised sector, women get intimidated to report unsafe work environment due to fear of retaliation or job loss. Section 410 talks about the installation of the Internal Complaints Committee.
It requires 10 or more employees to set it up so as to handle such sexual harassment complaints. However, due to unstable workforce in the unorganised sector, it becomes practically impossible to set one up for it. This lack of a complaint committee results in lack of accessibility to apt facilities for the workers as they would not know where to report such incidents, hence most of them would remain undocumented and no action taken against them. Section 611 discusses the installation of the Local Complaints Committee which comprises less than 10 members. This provision is imperative for the unorganised sector and deals as an alternative to the Internal Complaints Committee.
It particularly caters to the unorganised sector, however while this is directed at that sector specifically, the implementation of such a committee is difficult as there is a severe lack of awareness among the workers regarding such an offence. Moreover the accessibility of such redressals can prove to be challenging for 9 Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (Act 14 of 2013), s. 3. 10 Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (Act 14 of 2013), s. 4. 11 Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (Act 14 of 2013), s. 6. workers who do not have the time, resources, or knowledge to do so, rendering such a committee useless.
Section 912 provides a 3 month time to file complaints, which, under special circumstances, can be extended for another 3 months. While this is the perfect provision for the organised sector, in the unorganised sector, where workers migrate from one workplace to another, or where workers live on a daily wage basis, such a provision can prove to be futile. The lack of knowledge of such provision, coupled with the fear of losing the job, can render the aggrieved woman incapable of being able to approach the committee to register a complaint. Section 1313 emphasises the need to start a prompt inquiry along with a final report submitted within 10 days of a complaint, however this can prove to be inadequate amount of time as, again, due to migrating labourers, and inadequate facilities in the unorganised sector.
Section 1914 enables the employer with various duties including conducting awareness programs for the workers, however due to lack of facilities and stable employer-employee relationship in the unorganised sector, it becomes a problem to carry out the duties. Section 2115 and 2216 deal with mandatory monitoring of the reports by District Officers and annual reports regarding the complaints registered respectively. For both of them, the limitation of the unorganised sector is that there isn’t enough awareness amongst the employers and the employees to even know that such a provision exists. On top of that, it gets difficult for District Officers to go to remote areas for the reports, and hence they prefer to stick to rather closer areas where, usually, only organised sector jobs take place.
Section 2617 provides penalties for non-compliance of POSH guidelines to the employers, however for the unorganised sector this proves to be futile as the employers usually are on a 12 Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (Act 14 of 2013), s. 9. 13 Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (Act 14 of 2013), s. 13. 14 Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (Act 14 of 2013), s. 19. 15 Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (Act 14 of 2013), s. 21. 16 Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (Act 14 of 2013), s. 22. 17 Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (Act 14 of 2013), s. 26.
short-term contract and hence before they can get penalised, their tenure ends. Almost all of these sections have one common limitation, which is, the lack of awareness among both the employers and the employees, which need to change and hence, another statute which deals particularly with sexual harassment in the unorganised sector is a dire requirement. A survey was conducted through the electric means of a Google form along with informal conversations with the women participating in various unorganised sector jobs in order to gain a deep understanding of the phenomena faced by the women in the informal industry such as that of a sales girl, a construction worker, vendors and domestic workers. The survey was limited to the state of Telangana.
The interviews conducted contained a semi structured questionnaire addressing and inquiring into the basics of the challenges faced by women in this industry along with the societal issues faced by the participating women as well. These participating women were interviewed to gain an understanding into aspects of their reasons for their occupation and the attached reasons for the same. Some areas of questioning involved addressing issues such as the reason for participating in the working industry, daily wages, or monthly income earned and its distribution. Areas such as discrimination on the basis of gender were also assessed. The daily outlook of the society and the family members of the women participating in these workforces were also ascertained through multiple interviews conducted. Around 100 workers were interviewed through a semi structured interview.
The workers were contacted through various construction sites and street vendors were contacted through daily or weekly shops being set up by the workers. To analyse the domestic household workers, the groups of the same were questioned through visiting various homes in a housing society in various parts of the city. During the same visit, street vendors selling items such as vegetables, various utility, and miscellaneous items were also witnessed and were conversed with to help us in a better analysis of the conditions of the women. To contact various women working in the garment selling shops, a middleman, mainly the owner of the shops, were contacted. Through an analysis of these women involved in these sectors, a conclusive study of the challenges and issues faced by the women could be concluded.
Through a critical analysis of the questionnaire and the conversations done with the women participating in such sectors, it could be concluded that women work or employ themselves in this sector as it provides them monetary support for their respective household. This area of work requires no skillset or pre-requisite knowledge to participate and earn money. This is an easy source of income for these women. Through the participation of women in these industries a sense of familiarity is also created. As per the studies conducted, it could be observed that construction workers particularly opted for this employment as it requires no knowledge of working and rather is merely just carrying construction items on their heads or the transportation of the same from one place to another.
This option was also opted for as no other source of work was available in few of the non-residential areas. There is usual dependence on the local contractors for this particular work. It could also be concluded through the conversations with the female construction workers that they had no sense of job security while working and participating. In other conversation with other workers of the same informal sectors such as petty traders/vendors or women of the garment selling shops (sales person) had no reported or evident discrimination on the basis of gender in their working areas. It could be seen that the women participating were usually migrant workers in search of a source of income to sustain their families. They prevail from a lower middle class.
Through the subsequent studies of the women participating in various informal sectors of the economy, it could be understood that they face a myriad of challenges and issues that further exacerbate their socio-economic vulnerability. These informal sectors don’t provide a steady source of income, and women already being at a vulnerable position, can be taken advantage of. This sector can be further seen and understood to be characterised by a lack of binding and formal contracts between the workers and the employers further not assuring of job security and leaving room for no application of legislative regulations hence minimal regulation of the same. With the same contention poor labour protection can be witnessed in these situations.
These challenges to the women in the industry make them more susceptible to vulnerable to exploitation, abuse at workplace all of this further leading to severe economic insecurity. Women working in the informal sector usually prevail from the marginalised communities and a low income class. They are already a witness to various societal issues such as limited access to education or any access at all. They don’t have availability of proper healthcare or similar facilities specially being women and further many more social services. Their socio-economic vulnerability and status further is heightened and aggravated by their participation in informal sector of the economy. It further excludes them form various facilities such as that of social security, government benefits and many more benefits deemed fit as per their status.
These women in some cases are sole earners in their family are highly underpaid due to the nature of their work. Due to the lack of a proper formal employer-employee contract, the authorities of the establishment can very easily take advantage of the workers. They are hence underpaid and highly and exploited and they have no other choice than to work for these establishments. In many industries such as the construction working industry— a lot of physical labour work is done by these women. Heavy produces and materials are carried by these women during peak noon time which constitutes to severe hard work labour. Even with these extreme working conditions, they are paid very minimal daily wages or sometimes not even paid. They are also hired for temporary periods for months or till the completion of a particular excluding a sense of job security.
They can be laid off from work without the issuance of a proper notice or severance pay further which pushes them into a constant endless hunt of jobs and furthered, job and economics stability. In a 1995 case, an organisation representing the female workers of the bidi industry in few parts of India challenged and questioned the lack of legislations and the protection of the workers. The Supreme Court in this matter emphasised the requirement of formalizing work arrangements to provide a sense of stability and security for the women in the unorganised or informal sectors of the economy. Most of the formal workers in the industry have a formal contract, written mutual consent agreements and defined working hours with its own benefits.
There is prevalence of safety concerns and further on there is a lack of accountability since there is no formal contractual bonding that may contain a set of rules regulating the nature of the relationship between the women worker and the person in authority and in-charge of them. Subsequently social security is also a point of concern for these workers being at a very vulnerable position. People’s Union for Democratic Rights v. Union of India18 in the year 1982 highlighted a case on the exploitation of women in the informal sector involving women participating in various public work projects. The Supreme Court in this case further rules that to force people to work without a minimum wage and the usage of an undue advantage of the position should not be tolerated.
It emphasised on the informal sector, due to their tendency and vulnerability to higher authority employers and consequent coercion. Poverty can be seen as an aggravating factor in this situation as well, as these women who are allowed to work, do it in order to economically and financially support their livelihood are in dire need of money and a daily wage to sustain their day to day activities. A lot of the workers in women are the sole family earner of the group and are hence left with no options than to work. Labour courts, applicable legal procedures certain alternative dispute
18 People’s Union for Democratic Rights v. Union of India, AIR 1982, SC 1473.
resolution can be seen as something of a very large challenge faced by the women. Even with presence of these services, the cost of the same can’t be afforded by them hence not being able to avail these basic legal services whenever required. Due to the nature of work of the women in in this unorganised sector, they are more receptive to abuse and harassment at work. There also lies an undue influence of the higher authorities in the working area which can have an indirect influence or impact on their behaviour towards the women workers in their workplace. In A 2020 case, the issue of abuse faced by domestic workers in the informal sector was highlighted and talked about.
The Delhi High Court addressed the issues raised by the Trust and also directed the government to ensure that the necessary steps for the protection of domestic workers from undue exploitation and harassment at workplace. The same was judged in relation to their social security needs and their working conditions. The women in these industries further also lack awareness about the consequent laws for their protection against abuse or harassment at workplace. In such informal sectors, there lies an absence of specific HR (Human Resources) committees to address grievances against misbehaviour and malpractices by an employer against the employee, this consequently puts these women from marginalised communities at a higher risk. There is a dire need for a separate legislation particularly dealing with the legal protections against sexual harassment in the unorganised sector.
The nature of employment in the unorganised sector is characterised by informal employment arrangements like short-term contracts, day-to-day jobs, and frequent change of employers. This results in instability in the authority structure and the overall framework of the unorganised sector. POSH19 deals with a structured workplace with a stable work environment, not an unorganised sector with unstable working conditions. The major reason for undetected harassments in the unorganised sector is the lack of awareness and accessibility of such provisions in the sector. The kind of labour hired in such a sector is typically illiterate, and unaware of their rights, hence making them easy to exploit and violate without any repercussions. POSH20, while does lay upon the employers such duties such as to conduct awareness programs, the legislation fails to make it mandatory so as to ensure that
19 Ibid.
20 Ibid.
there is no loophole that an employer can exploit and so as to also make sure that the workers are fully and inexplicably aware of their rights and what measures to do to make sure that they are given proper redressal in case of violation of the same. Due to frequent changing of employers or contractors, there lacks a feeling of accountability on the part of the employer, and hence when such cases are reported, no employer is held accountable for harnessing an unsafe work environment as they keep changing and no employer takes responsibility either. The Complaint Redressal Forums are not compatible with the unorganised sector, as the workplace of such jobs are usually remote areas where the officers do not usually prefer going and hence fall short on the implementation of the provisions laid down in POSH21.
POSH22 does not provide the protection of socio-economically vulnerable groups working in the unorganised sector. The workers do not tend to follow through with their reports due to fear of job loss and further harassment. A separate legislation is needed that will be adaptable to the unstable work environment of the unorganised sector, and also make sure that the employers are mandated to conduct awareness programs for the employees so as to make sure they are aware of their rights. Not just that, a separate legislation will also ensure that there are clear guidelines to ensure that the employer is held accountable for letting such an incident happen on his/her watch. Further, a more compatible complaint redressal forum that ensures that the voices of the workers in the unorganised sector are also heard will be put in place with the help of a separate legislation.
Lastly, a new legislation will ensure that proper safeguards are put in place to rehabilitate the victim if required, or to ensure that they are not further harassed or put out of their job because of filing a report of sexual harassment. In conclusion, the unorganised construction sector is one, which plays a significant role in the economy of India and which directly or indirectly provides jobs to millions of women. Nevertheless, it is one of the most pathetically represented sectors in terms of legal protection especially against sexual harassment. Even today, there is no absolute efficient legislation that protects women workers at the workplace, let alone the unorganized sector, which is the most
21 Id. at 1.
22 Ibid.
ignored and violated sector, where violation of rights of women workers is more rampant despite the POSH Act, 201323. Unfortunately the current framework does not afford them this protection which accentuates the need for specialised change in this area. This is quite a major challenge in that most women in the unorganised construction sector have no clue about their legal rights. For instance, majority of these women cannot read or write, or they dropped out of school early, thereby they have little or no clue of their rights. While POSH Act24 requires the employers to make provisions for awareness programs, organizing such is a challenge especially in the unorganized subsector where the turnover of employers is high and most of them do not have Human Resource departments.
Therefore, women to this day do not know what a form of sexual harassment is or where to complain when it happens meaning that the cycle of abuse continues with women standing helpless or even dumbstruck most of the time. Another emergent issue on the work front is that the women in the unorganised construction sector are not well informed about their legal rights. Most of these women do not read or write, or have little education, so they fail to appreciate their rights. While the POSH Act25 requires employer organizations to undertake the awareness programs, activities such as these are scarcely done in the unorganized working sector since there are no set structures for Human Resource departments and there is constant turnover of employers. Consequently, women continue to go to work, school, etc.
, and are never savvy as to what constitutes, sexual harassment or how to take action against it; the spirit of women is broken and they remain vulnerable and helpless in their workplace, schools, etc. Another problem is that the employer is not responsible in this sector. Several challenges characterise the unorganised construction industry through contracting and employer– employee relations which can hardly be held legally responsible for the provision of safety at workplace. The unorganized sector of the POSH Act26 relieves the employer of the responsibility that Section 19 of POSH Act27 requires employers to ensure free workplace from sexual harassment. Employees are currently incapable of demanding accountability from
23 Ibid.
24 Ibid.
25 Id. at 1.
26 Id.
27 Id. at 14.
employers due to lack of legal provisions requiring the implementation of POSH28 guidelines for any new employer. This is because the lack of structure that marks the organization puts women in a weaker position to fend off further harassment. Therefore, whilst POSH Act29 offers lesser than sufficient protection to women workers especially in the unorganised construction sector, it’s because employment relations are unstable, there’s low awareness of rights, and complaints mechanisms are lacking. These are women vulnerable to harassment and exploitation and without legal protection tailored to address their problems they will continue to suffer. It requires a specific legal regulation to protect such part of the workforce and give them the due justice and safety they have been denied.
28 Ibid.
29 Ibid.