EQUAL OPPORTUNITY LAW

CRITICAL ANALYSIS ON SEXUAL HARASSMENT AT WORKPLACE IN INDIA

Submitted by: MEGANATH V (16040141052)

HARI KRISHNAN G (16040141036)

Faculty in charge:

PROF. APOORVA TOMAR

ALLIANCE SCHOOL OF LAW

ALLIANCE UNIVERSITY, BANGLORE

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DECLARATION

I, declare that the seminar paper entitled “Critical analysis on sexual harassment at workplace
in India” has been prepared by us and it is the original work carried out by us for the fulfillment
of requirements of BA., LLB (Hons) degree programme of school of law, Alliance University.
No part of this seminar paper has already formed the basis of any examination/ evaluation of any
degree.

Name: MEGANATH V

Reg. no: 16040141052

Name: HARI KRISHNAN G

Reg. no: 16040141036

Batch: BA.LLB 2016-21

School of Law

Alliance University, Bangalore

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 ABSTRACT

Women, a girl, a wife, a mother, a grandmother, overall girl could be a key of a family. World
will never be complete without a girl. Law is the set of rules implemented to govern the
behaviour of individuals. From the start of this world women is treated as a weaker section of the
society frequently are the victims of the crimes like rape, eve teasing, feminine infanticide,
dowry, domestic violence, child marriage and acid throwing. India is facing the matter of
accelerating range of cases of sexual harassment at the workplace despite the actual fact that
there are various laws to curb the menace. Irrefutably, it hampers women’s constitutional and
fundamental rights to equality, justice and dignity. The paper begins with shaping the idea of
sexual harassment then looks into the assorted aspects allied to the current brutal issue. In
addition to it, the issues with the measures taken are mentioned to clarify the status of sexual
harassment in Indian context and the way organizations can facilitate in safeguarding the dignity
of their women employees. The study indicates that the problem of sexual harassment at the
workplace is at an appalling stage and needs an immediate attention by the organizations
moreover from government. The work of activists, human rights mechanisms and States has
been crucial in guaranteeing that the human rights framework has developed and adjusted to
summarize the gender specific dimensions of human rights violations to safeguard women in a
better approach. Further, few recommendations also are projected to tackle the problem of sexual
harassment of women in Indian organizations.

KEYWORDS: Sexual harassment, human rights mechanism, domestic violence, fundamental

rights, women’s right

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CONTENTS:

Sl. no CHAPTER AND SUBCHAPTERS Page no.

i) Declaration 02
ii) Abstract 03
iii) List of abbreviation 06

1 INTRODUCTION
07
1.1 Background
08
1.2 Research problem
09
1.3 Existing legal situation
09
1.4 Research Questions
10
1.5 Research objectives
10
1.6 Hypothesis
10
1.7 Scope and Limitations
10
1.8 Research Methodology
10
1.9 Literature review

2 POSH ACT AND DEFICIENCIES:

2.1 Posh act on prevention of sexual harassment 13

2.2 Deficiencies and possible solutions 15

3 VIOLATION OF FUNDAMENTAL RIGHTS

3.1 Rights affected by sexual harassment 18

4 ROOT CAUSE AND VARIOUS COUNTRIES IN PREVENTION

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 OF SEXUAL HARASSMENT 21

4.1 Root cause of sexual harassment

23
4.2 Various countries in prevention of sexual harassment

Conclusion & Suggestions 26

Bibliography 27

LIST OF ABBREVATIONS:

POSH - Prevention of Sexual Harassment

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IPC - Indian Penal code

IEA - Industrial Employment (Standing Orders) Act

CHAPTER- 1: INTRODUCTION

1.1 BACKGROUND:

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The philosophers and Lawmakers of ancient time gave authenticity to inferior status of women
through their writings and preaching. All over the world the women belonged to a class, which is
by and large exploited. If we go through the history of mankind, we find those different and
desperate cultures, through distant in time and space, have one thing common and that is
contempt for women. This contempt manifests itself in the form of crime against women which
has escalated the world over. In India too, women remained neglected through generations.
Women constitute about half the population of India. But no efforts were made to elevate the
status of women till independence. It was only after we achieved freedom that efforts were made
to remove their social and economic disabilities by providing them opportunities to develop and
legal protection. The employment of women was necessary for gender equality and gender
justice. The constitution of India grants equality to women and the Government of India has
brought out specific legislations to protect and safeguard their rights and interests. But women
working are based with various problem one of serious problem that the women faced are sexual
harassment in workplace. Sexual harassment of a woman at workplace violates her right to job,
security and equal opportunity. It can create working conditions that are hazardous to the
psychological and physical well-being of women workers. It also creates a poisoned work
atmosphere that disempower and demoralize women employees. When ignored sexual
harassment exacts high cost to the organizations in terms of loss of productivity, high rate of
absents among affected women workers, disruptions of work from long-term sick leaves and low
morale. It may also tarnish the public image of the organizations.

The need for such legislation was observed first time by the Supreme Court, in Vishaka v State
of Rajasthan. In the absence of any law at that time providing measures to check the evil of
sexual harassment of working women, the Supreme Court, in exercise of power available under
Article 32 of the Constitution, framed guidelines to be followed at all workplaces or institutions,
until a legislation is enacted for the purpose. The Supreme Court incorporated basic principles of
human rights enshrined in Constitution of India under Article 14, 15, 19(1)(g) and 21, and
provisions of Convention on Elimination of All Forms of Discrimination against Women
(CEDAW), which has been ratified in 1993 by the Government of India. The guidelines laid
down by the Supreme Court were to be treated as the law declared under Article 141 of the
Constitution.
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1.2 RESEARCH PROBLEM:

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AIR 1997 SC 3011

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Sexual harassment affects the social and psychological behavior of women within and outside
the workplace. The POSH ACT,2013 is enacted for prevention of sexual harassment in many
cases there are also certain drawbacks which leads to hesitation of complaint about sexual
harassment which is about the dignity of the women and the amount of time given for the women
is about three months and that should be extended and because of the complaint they may lead to
lose their job in this case women are feeling in-secured and even after the POSH ACT is enacted,
year by year the sexual harassment complaints increase year by year and what can be the
possible solution and How various countries prevents sexual harassment at workplace need to be
analysed and and in such case some women are using the provisions of the act to file false or
malicious complaints.

1.3 EXISTING LEGAL SITUATION:

1. Indian Penal Code 1860

The crime of sexual harassment at workplace not only violates the POSH, act 2013 but also
makes the offender liable under the provisions of IPC. Following are the key offences that trigger
liable in case of sexual harassment:

 Section 354: Assault and use of criminal force to any women, intending to outrage or
knowing it to be likely that modesty would be outraged

 Section 354-A: Sexual harassment by a man

(i) Physical contact and advances involving unwelcome and explicit sexual
overtures.
(ii) Demand or request for sexual favors.
(iii) Showing pornography against the will of a woman; or
(iv) Making sexually colored remarks.

 Section 354-B: Assault or use of criminal force to woman with intent to disrobe.

 Section 376: Rape.

 Section 354-D: Stalking.

 Section 509: Uttering any word, any sound or gesture or exhibiting any object, intending to
insult the modesty of a woman.

2. Industrial Employment (Standing Orders) Act, 1946

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The Industrial Employment Act, 1946 (" Standing Orders Act ") is a central act requiring an
employer to define and publish uniform working conditions in the form of standing orders, inter
alia. According to the statute, standing orders should include terms of employment, including
working hours, salary rates, shift work, attendance and late arrival, leaves and holidays and
termination or suspension / dismissal of staff. The Standing Orders Act applies in the first
instance to' industrial establishments that employ at least 100 workers. The Standing Orders Act
sets out the Model Standing \ Orders, which serve as guidelines for employers and here an
employer has not framed and certified its own standing orders, the provisions of the Model
Standing Orders shall apply. The Model Standing Orders prescribed in the Industrial
Employment (Standing Orders) Central Rules, 1996 (" Standing Orders Rules ") specify the list
of a standing order. The standing model not only defines ' sexual harassment' in line with the
Vishaka judgment definition, but also provides for the establishment of a complaints committee
for the redress of grievances concerning sexual harassment at work. Interestingly,' sexual
harassment' is not restricted to women in accordance with the Standing Order Rules.

3. THE SEXUAL HARASSMENT OF WOMEN AT WORKPLACE (PREVENTION,

PROHIBITION AND REDRESSAL) ACT, 2013 is a legislative act in India that seeks to
protect women from sexual harassment at their place of work.

1.4 RESEARCH QUESTIONS:

1) Whether POSH ACT prevents sexual harassment or not and what are the deficiencies?

2) How the fundamental rights of women are affected by sexual harassment in India?

1.5 RESEARCH OBJECTIVES:

 The aim and objectives are to study the impact of sexual harassment on the work,
productivity and morale of the women.
 To identify the factors which are responsible for gender inequality.

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  To suggest measures to prevent, control and minimize the incidence of sexual harassment
at work place.
 To examine the sufficiency of the existing laws to provide safely and protection to
women at work place.

1.6 HYPOTHESIS:

The sexual harassment which was not taken seriously before decades now is one of the major
problems in the society. Various countries are taking various preventive measures in sexual
harassment in workplace which promotes gender equality and gender justice.

1.7 SCOPE AND LIMITATION:

The scope of the study is limited to analysis of impact of sexual harassment act in India and what
are the deficiencies and the possible solutions that can be made.

1.8 METHODOLOGY:
The methodology adopted for the purpose of conducting research on this paper is purely
Doctrinal research. This project data has been collected from various secondary resource’s
comprising of articles, books and journals and e-books and web sources, judgements from cases
and journals, which has been explained more detailed in the study

1.9 LITERATURE REVIEW:

2. Sexual Harassment of Women at Workplace: (Prevention, Prohibition and

Redressal) Act, 2013, 1 Dec 2013 by Justice P. S. Narayana (Author):

In this article the author explains about the POSH ACT,2013 and how it prevents the sexual
harassment of women in work place and how the complaints are filed that complaint filed in
committee is civil and the complaint filed in police station is criminal and he explained about ten
vishaka case which leads to enactment of POSH ACT,2013

2.Varsha book, Cobb (2014)-evolution of sexual harassment all over the world:

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The author states that it may be assumed that for as long as men and women have shared the
workplace, sexual harassment has existed. Laws prohibiting this conduct first came into being
relatively recently, with the United States enacting Title VII of the Civil Rights Act in 1964.
Since then, countries around the world have inserted sexual harassment provisions in criminal
codes, labour law, anti-discrimination and equal opportunity statutes, and human rights and
violence against women legislation. The article mainly pertains to the evolution of the Sexual
Harassment law all over the world.

3.Trades Union Congress and the Everyday Sexism Project, Ross (2016)-

In an article based on a study by the researchers from the Trades Union Congress and the
Everyday Sexism Project, Ross (2016), concluded that more than half of women have suffered
sexual harassment in the workplace, including sexual assaults and comments about their bodies.
Almost a fifth said they had been harassed by their boss or someone else with authority over
them. Four in five women said they did not report the incidents to their employers, with many
fearing 20 that it would harm their relationships at work or that they would not be taken
seriously.

4. Sage journal - sexual harassment at workplace act- redressal (2020):

This report states about the gender inequality leads to sexual harassment and the social equality
that leads to injustice in sexual harassment cases in India. It explains how the injustice is
provided for the women because the women does not have social status and the justice gogoi
case is explained.

5.Willness, Steel and Lee, (2005), problems lead by sexual harassment:

The authors were draw attention to the fact that sexual harassment is a significant occupational
problem with serious consequences, and future research should build upon this important
foundation toward developing effective strategies and organizational initiatives regarding
prevention and elimination of sexual harassment. Their discussion pertains to the period prior to
the enactment of the Prevention of Sexual Harassment of Women Act; hence they provided no
input regarding its implementation or impact.

6.(Kishore, 2011), Root cause of sexual harassment:

The author explains that the women are subject to sexual harassment at workplace due to their
gender

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variance. The case of sexual harassment of women is on rise because of number factors such as

poor status of women in the society, many number of working women, lack of knowledge of

Human Resource Departments, which majority of multi-national companies have, poor law and

order in the society and no proper provisions in the law to deal with the problem of sexual

harassment of women at workplace. Though the constitution of India ensures and guarantees

every individual has certain rights but still such acts take place and such sexual harassment
violates

the basic motive of the framers of the constitution. Any act of violence in the workplace is

emerging as a national issue. This shows that a job does not exist in a vacuum but rather show a

larger social context. It is infact the women, who will have to break the glass ceiling. An

awareness of the current situation and the desire to overcome the obstacles posed by the society

and their own selves alone would be an answer to the social evil of harassment and violence at

workplace.

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 CHAPTER – 2 POSH ACT AND DEFICIENCIES:

2.1 Posh act on prevention of sexual harassment

Protection against sexual harassment and the right to work with dignity are universally
recognized human rights by international conventions and instruments. The Sexual Harassment
of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 ("POSH Act") is
aimed at providing a safe, secure and dignified working environment to women free from all
forms of harassment. Redressal of grievance and fair adjudication of the complaint is a sine qua
non for dispensation of justice 2. Before the introduction of the POSH Act, there was no specific
remedy to address the cases of sexual harassment at workplace in India. Women that were
sexually harassed had to file a complaint with police and such complaints were generally filed
under Section 354 and 509 of the Indian Penal Code.

The POSH Act was later triggered by Vishakha case (Vishakha v. State of Rajasthan) in 1997
where Hon’ble Supreme Court provided the basic definition of sexual harassment at the
workplace and provided guidelines (“Vishakha Guidelines”) to deal with it. The decision of the
case was seen as the legal victory for the women in India.

i. Provision of a safe working environment in the workplace: The POSH Act makes employers
responsible for ensuring that the workplace is safe for its employees. In this regard, they must
employ measures to ensure that their employees are safe from both employees and non-
employees who might enter the workplace (delivery boys, for example). This mandate is not
limited to the official workplace – it also includes any vehicles used by the company, and any
third-party sites visited by the employees.

ii. Constitution of an Internal Committee in every workplace with more than 10 employees: The
Internal Committee (IC) is one of the two redressal bodies under the POSH Act. Any employer

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PoSH Act: Consequences of Sexual Harassment Cases on Image of Organisations | TaxGuru

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of a workplace with 10 or more employees is required to constitute an IC. The IC is responsible
for hearing and redressing any complaints pertaining to sexual harassment in such workplace.

iii. Constitution of the Local Committee in every District: While only workplaces with 10 or
more employees are required to constitute ICs, this does not mean women working at all other
workplaces do not get protection under the POSH. The POSH Act also requires the constitution
of a Local Committee (LC) in every District which is responsible for hearing and redressing
complaints of sexual harassment from workplaces that may have fewer than 10 employees. The
LC also redresses complaints in the case such complaint is against the employer of a workplace
themselves.

iv. An in-depth inquiry into all complaints of sexual harassment: The IC/LC, as the case maybe,
is required to conduct an inquiry into every complaint of sexual harassment in accordance with
the provisions of the service rules applicable to the respondent within ninety days (90 days) from
the submission of the complaint. Upon the completion of an inquiry, the IC/LC is required to
prepare a report of its findings. If the allegations of sexual harassment are proved, the IC/LC may
recommend the employer or the District Officer to take action against the accused.

v. Organization of workshops and awareness programmes at regular intervals for sensitising the
employees with the provisions of the Act: The POSH Act places a duty upon each employer to
organize periodic sensitisation workshops for all their employees so they are well versed3 with
the provisions of the Act, the organization’s redressal procedures and the consequences of
engaging in acts that constitute sexual harassment. Such workshops/training sessions must be
organized by individuals who are experts or experienced in POSH sensitisation.

vi. Punishment for false and malicious complaint and false evidence: The POSH Act takes into
cognizance, false and malicious complaints and provides for strict action against them. If the
IC/LC finds that an allegation of sexual harassment is false, it can recommend the employer or
3
POSH Act- Ensuring Women Safety At Workplace (naukri.com)

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District Officer to take action the woman or the person who has made the complaint in
accordance with the provisions of the service rules applicable to them.

Although the law could not completely eradicate the sexual harassment in workplace but the act
tried it's best to reduce sexual harassment in workplace.

CASE LAW :

A K Chopra’s case

Apparel Export Promotion Council Vs. AK Chopra case4, is the first case in which the Supreme
Court applied the law laid down in Vishaka’s case and upheld the dismissal of a superior officer
of the Delhi based Apparel Export Promotion Council who was found guilty of sexual
harassment of a subordinate female employee at the place of work on the ground that it violated
her fundamental right guaranteed by Article 21 of the Constitution.

In both cases the Supreme Court observed, that " In cases involving Human Rights, the Courts
must be alive to the International Conventions and Instruments as far as possible to give effect to
the principles contained therein- such as the Convention on the Eradication of All forms of
Discrimination Against Women, 1979 [CE DAW] and the Beijing Declaration directing all state
parties to take appropriate measures to prevent such discrimination."

The guidelines and judgments have identified sexual harassment as a question of power exerted
by the perpetrator on the victim. Therefore, sexual harassment in addition to being a violation of
the right to safe working conditions, is also a violation of the right to bodily integrity of the
woman

2.2. DEFICIENCIES AND POSSIBLE SOLUTIONS

The POSH ACT although tries to reduces the sexual harassment there are some deficiency and in
those case the law should be improved.

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1999 AIR SCC 759

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1. One of the deficiency is that the time period of the complaint is three months and it can be
extended up to six months, but this is about the dignity of the women and there will be hesitation
and although the internal committee says that if the period is extended it will lead to many false
complaints but the period should be extended for her convinent and there should be awareness
that women should be bold in this matter.

2. The 62% of sexual harassment incidents at the workplace do not get reported despite the
existence of the POSH Act and the SHE-Box 5. The reasons for not reporting are mainly due to
embarrassment (45%), waiting for the issue to resolve on its own (38%), the fear of retaliation
(35%) and anxiety (24%). The Act needs to specify stringent anti-retaliation measures to
alleviate the fear of retribution for lodging a sexual harassment complaint.

3. In the absence of compliance audits by the Government, in the year 2017, only 539 charges
were recorded under the POSH Act. This translates to two incidents of harassment across
corporate India per day and appears to be a disputable reflection of ground reality.

For the Act to be more meaningful, strict audits need to be enforced by the Government
regarding the compliance of the Act. When coupled with the mandatory disclosure requirements
of the company’s Internal Complaints Committee, it will make for a strong law.

4. There also various companies still have not form ICC/LC in their workplace and these should
be revised.

5. Proving a sexual harassment case can prove to be a hard nut to crack for the victim, especially
in proving any verbal or any offensive action.

6. Some women that have been constantly harassed doesn't know about ICC or LC and there
should be active meeting in the company to talk about and to make the women bold.

7. There are also cases where women takes advantage of the provisions for filing false
complaints, even though there are law for punishment these actions still happens.

These are about some deficiency and possible solution in the POSH ACT.
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POSH Act- Ensuring Women Safety At Workplace (naukri.com)

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CASE LAWS:

Anita Suresh vs. Union of India and Others (2019)

the accused, an employee of ESIC (Employees’ State Insurance Corporation) was let off while
the onus of proving that she was subjected to sexual harassment at her workplace was placed on
the complainant. The complainant did not have enough evidence as she could not recollect who
may have been a witness to the sexual advances made by the perpetrator on the two occasions
cited. The court ruled against her. In both these cases, the courts, in overlooking the details of the
complaints and the institutional context in which sexual harassment took place failed to deliver
justice to the survivors. In doing so, the courts gave wind to the perception that it was the women
who had misused the provisions of POSH to file false complaints. In the case of Anita, both the
ICC and the court held that she had filed a false complaint and let the accused go scot free for
lack of evidence. The courts have to contextualise when evidence is available and when it is
lacking and what these situations mean in terms of sexual harassment. The court also overlooked
the petitioner’s (Anita) statement that the accused had also pressured her to withdraw her
complaint (Mathew, 2019). The Court even penalized the survivor, citing some lapses in her
work record as the motivation behind her allegation. In doing so, the courts have set a precedent
which can work against complainants coming forward. In matters of sexual harassment, often
evidence of the crime is lacking. However, the absence of evidence does not necessarily imply
the absence of a crime. This inherent tension between the need for evidence and the need for
justice is often the reason why cases against perpetrators of sexual harassment don’t stand up to
scrutiny in courts of law. At the same time, the unwillingness of the courts to take cognisance of
this tension, often results in victim-blaming and allows perpetrators to get away with impunity.

The social context and power relations within the workplace and that often harassment takes
place behind closed doors cannot be overlooked. The problem of believing the survivor without
adequate evidence could reflect the absence of fair play. However, in not believing the survivors
as we have seen in the Anita case, the courts negatively impact the work of different social
justice groups and women’s movements that have been pushing to create safe work spaces for
women

CHAPTER- 3: VIOLATION OF FUNDAMENTAL RIGHTS

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3.1. Rights affected by sexual harassment:

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 India 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 6. Sexual
harassment is considered as a violation of a woman’s fundamental right to equality, which right
is guaranteed by Articles 14 and 15 of the Constitution.

The relevant Articles of the constitution of India, which bestow legal rights upon women are:

(1) Article 14: Confers the equality before law or the equal protection of the

law to every person.

(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.

(3) Article 16: Guarantees 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) 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).

(5) Article 21: Ensures; ‘no person shall be deprived of his life or personal liberty except
according to procedure established by law’. Women have a right to lead a dignified, honorable
and peaceful life with liberty.

As per guideline given by Supreme Court under Vishaka’s case stated clearly that it had to be
ensured that victims or witness are not victimized or discriminated against while dealing with
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Sexual Harassment At Workplace Is An Affront to Women's Fundamental Rights: SC (legalserviceindia.com)

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complaints of sexual harassment. As per section 14 of the act it provides punishment for filing of
false and malicious com-plaints. According to some of the activist “if this section will prevail it
will deter the women to come forward and file cases of sexual harassments and it will defeat the
real purpose of proposed law.”

However, Article 21 which guarantees the right to life to every citizen which includes a life with
dignity and without violence and also Directive Principles of State Policy7, under Article 42
directs the State to make provision for securing just and humane conditions and maternity relief.
As this section is against the very the purpose of the above mention Articles. If the woman does
not able to substantiate her case against sexual harassment it does not mean that the case was not
genuine. Generally, such kind of cases of sexual harassment took place behind close doors or in
private place which in most cases might not a have any documentary evidence or any witnesses.
In such a situation, a subordinate had to muster up courage to make a complaint who might also
face social approbation for false and malicious complaint. For example: It is complex position of
an aggrieved woman who has to muster great courage to come forward to file a complaint of
sexual harassment. Also, she is given the unequal nature relations with employer. It would not be
easy for aggrieved woman to prove her case. If at all a witness come forward, such a provision
may act as a deterrent an which is very against the scope of Vishaka case and also the provision
given under the Indian Constitution because if once the women is charged with filing of false
even though the case was genuine but due to lack of evidence and some manipulation made by
the employer she is unable to prove the case then she will be punished under this sec and may
lose her job also and become culprit in the eyes of her colleague and the society even though she
was innocent. So this sec may be considered as against the Right to Dignity guaranteed under Art
21 of the Indian constitution and also Art 42 which provide “Just and Human conditions at work
place”. As this sec also violates the Right of Speech and Expression under the constitution as if
the women who is the victim of the sexual harassment wants to file a case but due to lack of
evidence and witnesses she may get a threatened warning from the employer that if she proceeds
with case then she will be charged for filing false and malicious com-plaint so, this may

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fundamental-rights-sc.html

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definitely deter the woman to come forward and file case so this section can be said as violating
her right of freedom of speech and expression guaranteed

under art 19(1)(a) of the Indian constitution.

Sexual harassment is violation of fundamental rights is where:

1. Art-14 is equal before law and equality where women are protected by any form of act that
causes them physical or mental injury.

2. Art-15 prohibits discrimination as the women in the workplace should not be discriminated by
sexual harassment.

3. Art-19 1(a) is freedom of speech and expression, the women has the right to tell her about the
sexual harassment and if the employer threatens the women(employee) that is violation of art-19
1(a) of Indian constitution. Art-19 1(g) has the freedom of right to practice any profession and
the employee cannot threaten her for his benefits at workplace which is violation of the
fundamental right of women.

4. Art- 21 is that right to life with liberty, dignified and honorable, and if the women are sexually
harassed then it is violation of right to life with dignity.

This act is enacted for the protection of women working at workplace but still this Act contains
certain lacunae. One of such lacunae is the section 14 i.e. punishment for false and malicious
complaints and false evidence. Hence, at the end the researcher would like to say that though,
over all I am against view of filing false cases and consider that these should be punishable.
However, in case of sexual harassment, my view is that the women should not be punished. In all
probability, there will be a few false cases filed by some crooked women. But in India due to
society’s attitude, very few women have the courage to fight sexual harassment publicly.
Secondly, if they file a case against senior managers, with corruption level existing in the
country, most cases can be made into false complaints. This Act is constitutionally valid but still
it affects the certain fundamental rights .so there must be an amendment made to this particular
effect.

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In bank employee case (2020) Madhya Pradesh high court held that “ Sexual harassment at the
workplace is an affront to the fundamental rights of a woman to equity under articles 14 and 15
right to live with dignity under article 21 of the constitution as well as her right to practice any
profession or to carry on any occupation , trade or business “.

CHAPTER- 4: ROOT CAUSE AND VARIOUS COUNTRIES IN

PREVENTION OF SEXUAL HARASSMENT

4.1 ROOT CAUSE OF SEXUAL HARASSMENT:

Sexual harassment has no definite causes; it can be experienced by any women at any particular
point of time. However, studies have shown human society has some ongoing gender conflicts
which form the root causes for sexual harassment on first place.

1.Male Dominance:

The dominating male bosses making unwanted sexual advances towards their female colleagues
is perceived as behavior is all about fulfilling sexual desires. The real issue is not about fulfilling
sexual desires but it’s about sexism. The men want to protect their favored line of work. The
most of sexual harassment at workplace is not about sexual needs of perverted men, but the real
motive of such kind of harassment is to depict the dominance of men folk.

2. Minor Work Position:

Women typically wield less stratified power in organizations, and men have most of it, sexual
harassment is one method of the powerful declarative control over the weak. This proposition is
supported by evidence that women are more probably to be harassed once they move in higher
levels in organizations or into non-traditional areas. The individuals with less power tend to be
more responsive to the people with more power than the reverse. This clearly shows that the
persons with inferior job position in a corporation or in institute are more at risk of sexual
harassment than someone in power.

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3. Aggressive trait of male folk:

Different researches reveal that harassers are found altogether in all sorts of occupations at all
structural levels, inside and outside home and even among teaching community. The sexual
harassment is alleged to be an outcome of utmost competitiveness and considerations with ego or
there's continuously a concern of losing position of power or dominance among men. They do
not wish to look weak or less masculine within the eyes of different men. In order to point out
their dominance they engage in harassing the women colleagues. Therefore, this becomes clear
here that the masculine aggressiveness causes the sexual harassment of women.

4.Misconception about friendly nature of women:

It is acquainted that men in a corporation began to harass their lady colleagues who are quite
friendly in nature. They perceive that these ladies are sober in nature and if we tend to get sexual
favors from where they're going to settle for. However, that wasn't what women herself indicated
her intention to be. And this ultimately ends up in the very fact that the women are being
perceived as of getting a sexual interest by being friendly. This friendly nature of women with
their men colleagues in an organization or generally social setup becomes the reason for sexual
harassment.

5. Less Job Opportunities:

In our contemporary day, society we are aware of the fact that there are an outsized number of
women population ,who are with higher educational degrees rendering for job but the accessible
job position are lesser than these extremely educated young women. Once these proficient and
efficient ladies began their journey to seek out employment in a corporation may it be an
educational institute or different private or government sector. they're troubled and advanced by
sexual favours by the person in charges and for that they're assured to be offered employment.
This behavior of male elements of an organization who are in higher positions results in an
outcome of ‘Quid professional Quo’ (This for That). Latter once these women are connected to a
particular job position in a corporation they're usually asked for sexual offers for promotion,
wage increase and different conditions of employment. No doubt this is often the case of our
present society and this becomes one among the fundamental causes of sexual harassment of
young educated women. Despite all the prevention and redressal measures provided by the penal

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laws and the equal status of women given by the constitution women still in both private and
public sectors face humiliating episodes of sexual harassment from their male counterparts.

4.2. VARIOUS COUNTRIES IN PREVENTION OF SEXUAL HARASSMENT:

International understanding of sexual harassment, The United Nations General Recommendation

19 to the Convention on the Elimination of all Forms of Discrimination against Women defines
sexual harassment of women to include:

“such unwelcome sexually determined behavior as physical contact and advances, sexually
colored remarks, showing pornography and sexual demands, whether by words or actions. Such
conduct can be humiliating and may constitute a health and safety problem; it is discriminatory
when the woman has reasonable ground to believe that her objection would disadvantage her in
connection with her employment, including recruitment or promotion, or when it creates a
hostile working environment8.”

1. UK

The Discrimination Act of 1975, was modified to establish sexual harassment as a form of
discrimination in 1986. It states that harassment occurs where there is unwanted conduct on the
ground of a person’s sex or unwanted conduct of a sexual nature and that conduct has the
purpose or effect of violating a person’s dignity, or of creating an intimidating, hostile,
degrading, humiliating or offensive environment for them. If an employer treats someone less
favourably because they have rejected, or submitted to, either form of harassment described
above, this is also harassment. Another Act, the Protection from Harassment Act, 1997 explains
as, an offence for a person to pursue a course of action which amounts to harassment of another
individual, and that they know or ought to know amounts to harassment. This Act provides for
jail sentence upto 6 months or a fine. Moreover, this Act was primarily created to provide

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23
protection against the Stalkers. The UK Government has a rag bag of Statutes like
Administration of Justice Act 1970, Public Order Act 1986.

According to a survey conducted by in 2019, 13 percent of women in the United Kingdom have
been exposed to visual and verbal harassment at work such as to whistling, rude gestures or
comments.

Recent data of 2019, shows that 40% managers who are men are uncomfortable participating in
common workplace activities with women. This reflects the widespread reports of Sexual
Harassment are increasing and men are also afraid of such things. We realise the common
growing position in UK when polling was conducted of 1553 women and 52% of them
experienced unwanted behaviour at work including groping, sexual advances and inappropriate
jokes.

2.Australia:

Under Australian Law, a person who sexually harasses someone else is primarily responsible for
their behaviour. However, in many cases the company also be held vicariously liable for sexual
harassment by the employees, agents and contractors, unless it can show the steps that it took to
prevent the sexual harassment from occurring. Under the Sex Discrimination Act, the employer
must take all reasonable steps to minimize the risk of discrimination and harassment occurring.
The Sex and Age Discrimination Legislation Amendment Act 2011 amended the Sex
Discrimination Act 1984 in May 2011 to expand the protections against sexual harassment. The
victim can make a complaint to the Australian Human Rights Commission in case he/she has
been sexually harassed. The Commission will then investigate the complaint and will try to
resolve the complaint through a process of conciliation, during which it will help the two parties
involve by acting as an impartial person. If the complaint is not resolved, then the victim can
take the complaint to Court.

3. US- The federal law is based upon title VII of civil rights act of 1964. An employee who faces
sexual harassment can file a complaint at equal employment opportunity commission, if
dissatisfied with the organization enquiry of the case.

Comparison on US and India:

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1.The American Equal Employment Opportunity Committee Guidelines define sexual
harassment, from the aspect of both, men and women. On the contrary, the Sexual Harassment at
Workplace (Prevention, Prohibition & Redressal) Act, 2013, of India only emphasis the
harassment against women.

2. Under the EEOC Guidelines, the law takes into consideration, sexual harassment from a
supervisor, a supervisor from another department, co-worker, a client or a customer. However,
the same is not applicable under the Sexual Harassment Act, 2013, as it only focuses on
“employers” as being guilty of committing sexual harassment. And is silent towards the other
probable possibilities.

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 CONCLUSION & SUGGESTIONS

Sexual harassment is considered as a violation of women's fundamental right. Prior to the year
1997, India neither had a legislation combating the menace of sexual harassment at workplace
nor was there any sturdy judicial pronouncement dealing with same part from the constitutional
safeguards. The sexual harassment against women at workplace act as an alternative structure
and process is welcome, but it also needs alterations. Helping the victims to make informed
choices about the different resolution avenues, providing trained conciliators, settlement options
by of monetary compensation, an inquisitorial approach by the committee must be adopted. The
legislation appears to be further excessive in the redressal mechanisms which it has established
by short-comings in the powers and function of these non-judicially equipped bodies. Moreover,
some provisions could have been more leaning to female victim, such as the provisions for
conciliation and punishment for false or malicious complaints. The problematic provisions and
unanswered questions present a conundrum for application of the act, and should to be clarified
for effective implementation of the act.

Moreover, the utmost need at this time is a change in the mindset to understand the fears,
compulsions, and pressures on women victims. Instead of blaming the victim for having invited
sexual advances, it is important to shift blame to the perpetrators. The law should also bring
within its ambit the situations faced by men as it also goes on to hamper their productivity just
like it affects over all well-being of an aggrieved woman. Our purpose shall be to install a culture
that very women shall have a right to be free from sexual harassment and the right to work in an
environment free from any forms of sexual harassment

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BIBLIOGRAPHY:

Articles & Journals:

1.Sage journal (2020) sexual harassment at workplace act- redressal

2.International journal- Anju Thomas (2015) Preventive measures for sexual harassment

E-Books:

NAVEEN BHATNAGAR, sexual harassment prevention, protection and redressal

Lloyd Lipsett (2013), Tax Abuses, Povert and Human Rights

Websites

 Sexual Harassment At Workplace Is An Affront to Women's Fundamental Rights: SC

(legalserviceindia.com)
http://www.legalserviceindia.com/legal/article-1858-sexual-harassment-at-workplace-is-
an-affront-to-women-s-fundamental-rights-sc.html

 PoSH Act: Consequences of Sexual Harassment Cases on Image of Organisations |

TaxGuru
https://taxguru.in/corporate-law/posh-act-consequences-sexual-harassment-cases-image-
organisations
 POSH Act, A Biased Legislation: Busting The Myth! - Employment and HR - India
(mondaq.com)
https://www.mondaq.com/india/employee-rights-labour-relations/851446/posh-act-a-
biased-legislation-busting-the-myth
 Sexual Harassment at the Workplace Act: Providing Redress or Maintaining Status Quo?
- Pallavi Gupta, Nikhat Fatima, Sandeep Kandikuppa, 2020 (sagepub.com)
https://journals.sagepub.com/doi/full/10.1177/0049085720957753
 https://www.ungender.in/sexual-harassment-at-work-understand-the-rules-of-the-posh-
act-in-6-minutes/
 Sexual Harassment at Workplace: Legislations in different countries - iPleaders

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 https://blog.ipleaders.in/sexual-harassment-legislations-different-countries/
 POSH Act- Ensuring Women Safety At Workplace (naukri.com)
https://www.naukri.com/blog/posh-act-ensuring-women-safety-at-workplace/

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