Role Of The Criminal Justice System In Combating Sexual Harassment And Abuse At The Workplace - An Analysis
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Category: Criminal Law
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ROLE OF THE CRIMINAL JUSTICE SYSTEM IN
COMBATING SEXUAL HARASSMENT AND ABUSE AT THE
WORKPLACE: AN ANALYSIS
Shruti, Research Scholar, Department of Law, Central University of Haryana, Haryana Dr. Anju, Assistant Professor, Department of Law, Central University of Haryana, Haryana
ABSTRACT
Sexual harassment and abuse at the workplace refer to the unwelcome acts, physical conduct and behavior involving sexual overture and include verbal or non-verbal gestures which violates the dignity and safety of individual and undermine the professional integrity of workplace. The paper deals with both national and Inter-national legal framework which support in combating the issue and doing justice with the objectives of the Preamble of Constitution. It also deals with the role of judiciary in combating sexual harassment and abuse at the workplace starting from giving guidelines in Vishakha case, expanding meaning, ensuring employer accountability, monitoring implementation to redressing challenges. It further deals with the role of criminal justice system in adjudication and sentencing, acting as preventive and deterrent institution and providing support to victims.
It further discusses the role of police and investigation agencies, NGOs, prison and other legal institution in combating the issue. So, despite the role played by criminal justice system in combating the issue it still faces challenges like underreporting, procedural delays and many more which is to overcome and reforms to be made. Keywords: Sexual harassment, Abuse, Criminal Justice System
Introduction Gender equality is considered as a fundamental human right and a cornerstone for building a peaceful, prosperous, and sustainable world. Ensuring women and girls have equal access to education, healthcare, decent work, and participation in political and economic decisionmaking fosters economic growth and enriches society as a whole. Denying these rights wastes invaluable human potential and deprives half the population of the opportunity to live fulfilling lives. The Constitution of India enshrines the principles of equality and justice in Article 14 and the Preamble, guaranteeing social, economic, and political justice, as well as equality of status and opportunity for all citizens. Despite these constitutional safeguards, the rights of women are still not recognized or upheld on par with those of men, reflecting persistent gender disparities in practice.
1 “The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013”, came into effect on December 9, 2013, to address complaints of sexual harassment in workplaces. This legislation was enacted to mitigate workplace insecurities and vulnerabilities faced by women, replacing the Vishaka Guidelines established by the Supreme Court of India. Sexual harassment at the workplace is one of the most severe forms of gender discrimination, undermining women's aspirations for independence and equality. It hampers their pursuit of autonomy beyond home and family by reducing their work for economic survival to a sexualized role and making their sexuality a condition for professional progress. 2 A significant number of women remain unaware or uninformed about the legal rights granted
to them. Even when they do gain awareness, only a few have the financial resources and confidence to seek legal recourse. However, the judiciary plays a crucial role in ensuring that women receive what is rightfully theirs. This not only strengthens one of the pillars of democracy but also upholds the democratic principle of gender equality enshrined in the Constitution. Through a fair and robust judicial process, these rights are being reinforced and protected, contributing to a more just and equitable society.3 Sexual harassment involves subjecting someone to unwanted verbal, physical, or visual advances, often without their consent, leading to discomfort and distress. It is frequently
1 R. Nandhini, Sexual Harassment at Workplace, 4 SUPREMO AMICUS [502] (2018).
2 Id.
3 K. Latha, Judicial Role in Prevention of Women from Sexual Harassment at Workplace in India: A Legal Analysis, 7 Issue 3 INT’L J.L. MGMT. & HUMAN. 1794 (2024).
perpetrated by individuals in positions of authority over the victim, whether at home, workplaces, events, or other settings, as they exploit their power to suppress the victim and deter them from seeking help. Any form of harassment is morally reprehensible, and sexual harassment, in particular, disrupts a person's life, causing significant emotional and psychological harm.4 What is sexual harassment? A man shall be guilty of sexual harassment if he engages in any of the following acts:
Physical contact and advances involving unwelcome and explicit sexual gestures. • Demanding or requesting sexual favors. • Displaying pornography against a woman's will. • Making sexually suggestive or inappropriate remarks. For the first three offenses, the punishment includes rigorous imprisonment of up to three years, a fine, or both. For the last offense, the punishment may extend to one year of imprisonment, a fine, or both. 5 Sexual harassment at the workplace can be categorized into two types: “Quid Pro Quo and Hostile Work Environment. ” • Quid Pro Quo (This for That): This type of harassment involves demanding sexual favors in exchange for career advancement or job security.
It includes both implicit and explicit requests or demands for sexual activity, where the victim is led to believe that their continued employment or career progression is contingent upon providing sexual favors. This could also involve threats of adverse consequences, such as dismissal, demotion, or difficult work conditions, if the victim refuses to comply. • Hostile Work Environment: This type of harassment is characterized by unwanted conduct in the workplace, which may be physical, verbal, non-verbal, or visual. Such behavior creates an environment that is uncomfortable, burdensome, or hostile for the employee. The severity of the harassment is often determined by factors such as the frequency of the conduct (whether it is repetitive) and the extent of the impact it has on
4 Shubham Singh, Sexual Harassment at Workplace in India, 2 JUS CORPUS L.J. 96 (2021).
5 Yadvendra Pareek, A Study on Sexual Harassment of Women at Workplace in India, 2 Part 1 INDIAN J.
INTEGRATED RSCH. L. 1 (2022).
the individual’s ability to work. 6 Historical Background Vedic period During this period, women enjoyed remarkable freedom and equality, actively participating in all aspects of life. They pursued education in gurukuls and experienced liberation in various spheres. Influential women such as Yamini, Ghosa, Gargi, and Apala emerged as trailblazers, excelling in both cultural and warfare pursuits. Widow remarriage was widely accepted, and there was no discrimination between boys and girls. Girls had the right to undergo the Upanayana Sanskar (sacred thread ceremony), the purdah system was absent, and individuals had the liberty to choose their life partners. 7 Post Vedic-period As outlined by Manu, the post-Vedic period was marked by severe hardships and restrictions for women. Society became predominantly male-dominated, with increasing authority vested in men.
The birth of a girl was often seen as a misfortune for the family. Girls were denied the right to undergo the Upanayana Sanskar (sacred thread ceremony), and the marriageable age for them was drastically reduced to 9-10 years. Women were expected to remain under the control of their fathers during childhood, their husbands after marriage, and their sons in later life. However, women from the ruling class were granted limited access to education and training in administration, fine arts, and military science, but only within restricted boundaries. 8 Medieval period During this period, the status of women further declined. Due to constant invasions and security threats, women were often confined behind veils. They were deprived of educational opportunities and excluded from participation in community affairs.
Social evils such as sati pratha, female infanticide, and child marriage became deeply entrenched. The practice of dowry became widespread, particularly in Rajasthan. Additionally, exploitative systems like devadasi and polygamy were prevalent across the countryside, further restricting women's autonomy and rights. 9 6 Aanchal & Adarsh Pandey, Sexual Harassment of Men at Workplace, 3 Issue 4 INT’L J. L. MGMT. & HUMAN.
221 (2020).
7 Garima Bhaya, Efficacy of Laws Relating to Sexual Harassment of Women at Workplace in India: Study, 4 Issue
1 INT’L J.L. MGMT. & HUMAN. 1252 (2021).
8 Id.
9 Id.
British Rule During the British era, Western influence brought significant changes to the socio-cultural landscape of India, impacting the status of women. Concepts such as liberty, equality, and individual secularism began to emerge. However, these progressive ideals largely remained confined to the ruling class, with limited impact on the broader society.10 Legal Framework
1. “The Indecent Representation of Women (Prohibition) Act, 1986”: This Act
prohibits the “indecent representation of women” through advertisements, publications, writings, paintings, figures, or any other medium. It also addresses related and incidental matters to uphold the dignity of women.
2. “International Conventions on Laws Against Sexual Harassment”: Various
international organizations, such as the “United Nations”, “International Labour Organization (ILO)”, and the “Charter of Fundamental Rights of the European Union”, have established laws to combat sexual harassment globally. These conventions aim to raise awareness about the issue and foster collective action against it.
3. CEDAW: “The Convention on the Elimination of All Forms of Discrimination Against
Women (CEDAW),” adopted by the United Nations, promotes equality between men and women in legal frameworks and seeks to abolish all discriminatory practices against women.11
4. “Indian Penal Code, 1860 (IPC)”: Although the IPC does not specifically define or
address sexual harassment, certain provisions may apply in such cases, including: • Section 294: “Obscene acts and songs.” • Sections 354, 354A to 354D: “Outraging the modesty of a woman.” • Section 376: “Punishment for rape.” • Section 509: “Word, gesture, or act intended to insult the modesty of a woman.”
5. “Industrial Employment (Standing Orders) Act, 1946”: This Act incorporates the
Vishaka Guidelines and outlines the redressal process for workplace harassment. The Model Standing Orders under the Act classify sexual harassment as "misconduct" and
10 Id.
11 Singh, supra note 4.
provide mechanisms for addressing such behavior.
6. Contract Law: The principle of good faith ("uberrima fides") is a fundamental aspect
of every contract. Actions such as demanding sexual favors, creating a hostile work environment, wrongful termination for rejecting advances, or coercing a resignation through harassment constitute a breach of this doctrine.
7. “Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989”:
Section 3(1)(x): Assault or use of force with intent to dishonor or outrage the modesty of a woman belonging to SC or ST communities is punishable with imprisonment of 6 months to 5 years and a fine. • Section 3(1)(xii): Sexual exploitation of a woman from SC or ST communities by someone in a position of dominance is punishable with imprisonment up to 5 years and a fine.
8. “Indecent Representation of Women (Prohibition) Act, 1990”: This Act penalizes
the harassment of women through indecent representation in books, photographs, films, or other media.
9. “National Commission for Women Act, 1990: The National Commission for Women
(NCW)” is tasked with seeking justice for women, protecting their rights, and promoting their empowerment. Under Section 10(4), the NCW has the powers of a civil court during investigations.
10. “THE POSH ACT, 2013” The Sexual Harassment of Women at Workplace
(Prevention, Prohibition, and Redressal) Act, 2013 (commonly referred to as the PoSH Act) is India’s first dedicated legislation addressing workplace sexual harassment. Enacted by the Ministry of Women and Child Development in 2013, the Act reflects India’s commitment to the principles outlined in CEDAW. Its primary objectives are to prevent and protect women from workplace sexual harassment and to provide an effective mechanism for redressal of complaints. The Act is applicable across both the organized and unorganized sectors in India.
11. Indian Constitution and Women:
Article 16: This article ensures equality of opportunity for all citizens in matters of public employment or appointment to any state office. Clause (2) further prohibits discrimination on the basis of sex in such matters.
Article 19(1)(g): This grants every person the right to practice any profession or engage in any occupation, trade, or business. The Supreme Court, in the Vishaka case, held that workplace sexual harassment constitutes a violation of this fundamental right, as it directly hinders a woman's ability to work with dignity. • Article 21: This ensures that no individual shall be deprived of life or personal liberty except by due process of law. The right to life extends beyond mere physical existence, encompassing the right to live with dignity and all associated rights. • Article 39(a): This directs the state to formulate policies that secure equal rights for men and women in accessing adequate means of livelihood.
• Article 42: This mandates the state to ensure just and humane working conditions and provide maternity relief, underscoring the need for workplace equity and protection for women. 12 Events that led to Legal Recognition of Sexual Harassment at the Workplace Sexual harassment at the workplace has long been a significant issue for women in India, with no dedicated laws to address it in the past. However, the landmark Vishaka judgment marked a turning point in legal protections for women. In Vishaka & Ors. v. State of Rajasthan & Ors. (1997), the case arose from the horrific experience of Bhanwari Devi, a worker in the Women's Development Project in Rajasthan. While attempting to prevent the marriage of an infant girl as part of her duties, she faced strong resistance from villagers and a lack of support from the police. Despite her efforts, including campaigns, she was unsuccessful.
In retaliation for her actions, a group of men attacked and gang-raped her. When Bhanwari Devi sought justice, the police delayed filing her complaint by 52 hours, and the trial court ultimately acquitted all the accused. This blatant miscarriage of justice sparked outrage among women and NGOs across India, leading to a writ petition filed by Bhanwari Devi and other female social workers. The Supreme Court's judgment in this case declared that sexual harassment at the workplace violates women's fundamental rights under Articles 14, 19, and 21 of the Indian Constitution.
12 Shakti Singh Tevatia & Khalid Khan, Sexual Harassment of Women at Workplace, 2 INT’L J.L. MGMT. &
HUMAN. 351 (2019).
The court emphasized the need for greater awareness of gender justice. For the first time, the court provided a definition of sexual harassment and incorporated international standards, such as those from “The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW),” into the interpretation of fundamental rights. This judgment laid the foundation for legal reforms addressing workplace sexual harassment in India. Key Features of the Vishaka Guidelines: • A clear definition of sexual harassment was established.
Emphasis on maintaining a safe working environment for employees. • Employers are required to act on complaints made by employees. • Establishment of a complaint review committee within the workplace. • Employers must provide support and assistance to employees facing sexual harassment. • Employers are responsible for spreading awareness about sexual harassment and prevention measures. • The government is tasked with expanding the scope of these guidelines to ensure broader protection.13 Role of judiciary in combating Sexual Harassment and Abuse at the Workplace
1. “Vishaka and others v. the State of Rajasthan and others”14
In 1992, Bhanwari Devi, a Saathin from the village of Bhateri near Jaipur, was gang-raped. The ensuing court cases gained widespread attention from both national and international media. The Supreme Court’s landmark judgment in this case, which addressed sexual harassment at the workplace, became a pivotal moment in Indian legal history and is widely referred to as the "Vishaka Judgment."15
2. “Rupan Deol Bajaj v. K.P.S Gill”16
In this case, Rupan Deol Bajaj, a senior IAS officer, became the first woman to take a sexual harassment case to the Indian courts. It was one of the most high-profile and widely publicized cases in India, capturing media attention for many years. KPS Gill, who was the Director
13 Singh, supra note 4.
14 AIR 1997
15 Mona Bhatt & Sounak Poddar, Sexual Harassment against Women at Workplace, 1 INT’L J.L. MGMT. &
HUMAN. 282 (2018).
16 AIR 1996 SC 302
General of Police in Punjab at the time, was found guilty of molestation. On August 20, 1988, the Punjab and Haryana High Court upheld his conviction under Section 354 (outraging the modesty of a woman) and Section 509 (word, gesture, or act intended to insult a woman's modesty) for his actions against Rupan Deol Bajaj.17
3. “Tuka Ram and Anr. v. State of Maharashtra”18
also known as the Mathura Case, a young girl named Mathura was raped by two police officers inside a police station. A case was filed under Section 376 of the IPC, but both police officers were acquitted by the trial court and the High Court on the grounds that the girl had allegedly consented to the act. However, an appeal was filed in the Supreme Court, which clarified that the absence of resistance does not imply consent. The Court emphasized that consent must be clearly communicated. This led to the conviction of the two policemen and set an important legal precedent regarding the definition of consent in sexual assault cases.19
4. “Apparel Export Promotion Council vs A.K. Chopra”20
This judgment is a significant pronouncement by the Honourable Supreme Court concerning sexual harassment, highlighting the gap in anti-sexual harassment laws in India. The court’s observations are as follows: • The definition and scope of sexual harassment were expanded, emphasizing that physical contact is not a prerequisite for a woman to claim harassment if verbal or other non-physical methods are used. • The court noted that even the smallest act of sexual harassment infringes upon the fundamental rights of the victim, as guaranteed under “Articles 14 (Right to Equality), 19(1)(g) (Freedom of Speech and Expression), and 21 (Right to Personal Life and Liberty).
” • Sexual harassment was defined as a form of discrimination, where unsolicited sexual advances, behaviours, or implications are made, and when rejected, they are used against the woman, including as grounds for termination of her employment. Such actions will not be tolerated.
17 Bhatt and Poddar, supra note 15.
18 AIR 2011 SC (CRI) 1037
19 Amandeep Verma, Sexual Harassment of Women at Workplace: A Review, 7 Issue 2 INT’L J.L. MGMT. &
HUMAN. 2747 (2024).
20 AIR 1999 SC 625
In framing its observations, the court referred to the guidelines established in the case of Vishakha & others vs State of Rajasthan. 21 Gender Equality and Violence against Women Gender equality serves as the foundation for a peaceful and just society. It entails ensuring that men and women receive equal treatment in laws, policies, and opportunities. However, violence against women undermines this very principle, inflicting both physical and psychological harm. It can lead to threats, deprivation of personal liberty, and long-term mental health consequences. Therefore, raising awareness and actively promoting gender equality is crucial in eradicating violence against women. While violence hampers a woman's well-being and productivity, gender equality empowers her, enhancing efficiency and confidence in the workplace.
Rather than seeking remedies in the future, the present generation must take proactive measures to prevent such injustices. Achieving this requires strong political commitment, the implementation of laws that uphold gender equality, and the inclusion of women in leadership roles and workplace decision-making. 22 Handling cases of sexual harassment often involves complex procedures, making it essential for the Complaints Committee to have the necessary expertise to address such issues effectively. To ensure fair and just proceedings, committee members must strictly adhere to the provisions of the law, including the guidelines established in the Vishakha case and other relevant legal frameworks. Employers and responsible authorities must maintain clear communication and uphold impartiality in their conduct.
Additionally, the Complaints Committee should receive proper training to develop the skills and capacity required for conducting thorough and unbiased inquiries. 23 Suggestive measures to combat the sexual harassment at workplace The Central and State governments must initiate campaigns to identify institutions and organizations that violate guidelines, hold them accountable, and ensure strict adherence to these guidelines. • Employers should establish a clear Sexual Harassment Prohibition and Prevention policy, ensuring that every employee within the organization is made aware of it. 21 Saksham Chhabra, Critical Analysis on Sexual Harassment at Workplace of Women in India, 3 Issue 3 INT’L J. L. MGMT. & HUMAN. 1147 (2020).
22 Kushagra Sharma, Sexual Harassment at Workplace in India and Need for Speedy Redressal of Complaints, 3 Issue 6 INT’L J.L. MGMT. & HUMAN. [iii] (2020).
23 Id.
Reputable NGOs, with their valuable experience and credibility, can play a pivotal role in raising awareness about workplace sexual harassment. • Public awareness campaigns through conferences, seminars, television shows, and other media outlets should be conducted to address this crucial issue in women's social lives. • Women workers should foster positive relationships with their colleagues and senior officials. Their behaviour should be such that it prevents anyone from exploiting their freedom. • Women should report any signs of harassment at the earliest opportunity. It is always better to address such issues promptly rather than seeking remedies after a prolonged delay. 24 The criminal justice system and its machinery like police, NGOs and investigation agencies play a vital role by sentencing and adjudication process to combat the offence of sexual harassment at workplace.
The guidelines given by Supreme Court in Visakha’s case holds a significant position in the society in recognising the offence. All the machinery at the stage of trial, investigation, hearing and custody has its own significance. Conclusion “The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013” makes illegal sexual harassment of women at workplace. Supreme Court recognized this offence in Visakha’s case and framed guidelines for the same which leads to subsequent framing of legislation on the issue that is POSH Act, 2013. The unawareness and fear on the part of victim often lead to non- reporting of this offence. The responsibility to prevent these offences lies on the part of employer and workplace policies as strict as possible. The awareness programmes should be done which reduces such offences.
This disturbs the societal norms and values and hinder the women empowerment. Women who constitute half of the population if not able to work then this also affect the development of country as well. So, initiatives should be taken to avoid it at every level. This is very against the notion of the Preamble of Constitution.
24 Aditi Vishnoi, Sexual Harassment of Women at Workplace, 1 JUS CORPUS L.J. 383 (2020).