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ASSIGNMENT ON LABOUR LAW -2

SEXUAL HARASSMENT OF WOMEN AT WORKPLACE

(PREVENTION, PROHIBITION AND REDRESSAL ACT 2013)

SUBMITTED BY
BY: BRINY SAMYUKTHA.J
6 TH SEM BBA.LL.B

UNDER THE GUIDANCE OF

DR. SINI JOHN
18 JUNE -2021

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DECLARATION

I here by declare that the assignment titled “Sexual harassment of women at

workplace(prevention, prohibition and redressal act 2013) ” on management of Labour law-2 by
Briny samyuktha .j BBA LLB 6th SEM of Christ academy institute of law as a part of fulfillment
of requirement of award of law degree is a bonafide work carried out by me under the guidance
of. Dr,Sini Jhon. I further declare that this work has not been submitted or will not be submitted
for any other degree in this institute or any other university.

Bangalore

Briny Samyuktha. J
6th SEM BBALLB

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ACKNOWLEDGEMENT

I express my sincere respect and gratitude to my subject teacher Asst.Prof. Dr, Sini Jhon has
given his valuable support cooperation and suggestions from time to time successfully
completing this project work.

Place: Bangalore

Date:18 /06/2021

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CERTIFICATE

This is to certify that this work done and submitted by Briny samyuktha J 6 th semester BBA LLB
for the partial fulfillment of requirement of law degree is bonafide work done by her under the
supervision of Asst Prof. Dr, Sini Jhon Christ academy institute of law Bangalore.

Bangalore

Asst Prof. Dr, Sini Jhon

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TABLE OF CONTENTS

Introduction

1. Need……………………………………………………………………6

2. Judicial Activism……………………………………………………...7

3. Gang rape of Bhanwari Devi……………………………….………...7

4. Reference to international treaties while making the Vishakha

Guidelines……………………………………………………………..8

5. The Guidelines………………………………………………………..9

6. Comparison with the Act……………………………………………10

7. Developments After Vishakha………………………………………10

8. Double Edged Sword: Instances of Use of the law as a means of

Vengeance…………………………………………………………….12

9. Changes in the Sexual Harassment of Women at Workplace (Prevention

Prohibition and Redressal) Act, 2013………………………………..13

10.Scope……………...……………………………………………………13

11.Provisions of the Act………………………………………………….14

12.Analysis………………………………………………………………..14

Conclusion

Bibliography

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INTRODUCTION

Traditionally women in India were conditioned to stay at home, take care of the young while

the men were considered the breadwinners. With access to education, better facilities, Increased

literacy and the industrial revolution. Women all around the world left the boundaries of their

homes and started working. Though women had been working always with their families on

farms, as house help, even as babysitters from time immemorial.

All these were considered secondary activities and were seldom recognized. Women worked

without any rights and thus were frequently exploited.

The makers of the constitution recognised this problem and provided the right to equality to

all. Irrespective of gender, caste, creed or social status.

India’s Constitution aims at equality under Art.15 and provides for special laws to be made for
the depressed classes and women. The status of women even today is not at par with their male
counterparts. We certainly require laws which support women to take their rightful place in
society . Gender specific laws in India are made to ensure equity between the genders.

The Sexual Harassment of Women at Workplace Act, 2013 is a welcome addition amongst the

class of such laws. It has received both widespread praise and flak in recent times.The research
paper is aimed at analyzing the effect that this law has had on society.

It aims to seek answers to potent questions of whether the law has helped cement the place of

1. NEED OF THE ACT

In an emerging Indian Economy as more and more women started entering the workplace, the
malady of sexual harassment has reared its ugly face into many fields. From police and the army
to multinational companies to sports– it is regrettable that no field of human endeavorur has been
left untouched. There was a pressing need for legislation which could protect the rights of these

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working women. As has been the case with many laws the first time this was brought under the
public eye was by judicial activism.

2. JUDICIAL ACTIVISM

In the context of sexual harassment, judicial activism reached its pinnacle in Vishakha v. State of
Rajasthan (Vishakha).

The judgement was unprecedented for several reasons: the Supreme Court acknowledged and
relied to a great extent on international treaties that had not been transformed into municipal law;
the Supreme Court provided the first authoritative definition of ‘sexual harassment’ in India; and
confronted with a statutory vacuum, it went creative andproposed the route of Judicial
Legislation.

3. GANG RAPE OF BHANWARI DEVI

The incident that lead to a public interest litigation being (PIL) filed in respect of the Vishakha
case was the gang rape of a social worker in Rajasthan. Bhanwari Devi was a satin, a grass-roots
worker and activist, employed in the Women’s Development Project (WPD) of the government
of Rajasthan. In 1992, the Rajasthan government launched a campaign against child marriages,
in connection with which the WPD members persuaded villagers to abandon the practice, which
is still rampant in Rajasthan. Bhanwari Devi made all possible efforts to prevent the marriage of
a one year old girl, but in vain. What ensued for her was worse than a nightmare. There was a
complete breakdown of institutional machinery in Rajasthan. The villagers harassed, threatened
and socially boycotted Bhanwari Devi.

Then in September 1992, five villagers raped her in the presence of her husband. She sought
justice, but faced innumerable hurdles from police authorities. The trial court even went ahead
and acquitted the five accused.

This made five NGOs under the name ‘Vishakha’ to file PIL in the Supreme Court seeking

detailed directions on how sexual harassment of women at workplace could be prevented using

judicial activism.

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4. REFERENCE TO INTERNATIONAL TREATIES WHILE MAKING

THE VISHAKHA GUIDELINES

The Vishakha Guidelines served a great purpose as it immediately filled the void of lack of

legislations in respect of Sexual Harassment of Women at Workplace. Till 2013 they were the

only set of guidelines applicable across India that were specific to this issue. Due to them being
passed by the Supreme Court and it acting as a court of record it was defacto applicable in the
lower courts as well. But, to frame it was a task the three judge bench consisting of J.S Verma
(then CJI), Sujata Manohar and B.N Kripal took cognisance of all the international treaties
existing at that point. The Constitution of India does not have a precise stand on the value of
international treaties that have been signed or ratified by the government, but not implemented
via legislation. In ‘Vishakha, the court moved towards a more purposeful understanding of
fundamental rights in tune with most of its recent interpretations by affirming that ‘any
International Convention not inconsistent with the fundamental rights and in harmony with its
spirit must be read into these provisions [The fundamental Rights] to promote the constitutional
guarantee’. Since there was no law relating to Sexual harassment at workplace, the court stated
that it was free to rely on the Convention of Elimination of All Forms of Discrimination against
Women (CEDAW– signed by India in 1980) in interpreting article-14,19 and 21 of the
constitution. To justify the sources the court referred to several sources including the Beijing
Statement of Principles of the Independence of Judiciary. A decision of the High Court of
Australia and its own earlier decisions. Vishakha was also possibly the first instance in India
where International Covenants had been applied to municipal and district level courts directly.
Since Vishakha, The Supreme Court has started heavily relying on international Multilateral
treaties, particularly those forming part of the Universal Declaration OF Human Rights (1948)
and others forming part of International Bill of Rights due to legislative lethargy in spheres of
public importance. Often filling legislative voids by exercise of Art 141.

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5. THE GUIDELINES

The Supreme Court issued a series of ‘guidelines’ (based on CEDAW) to protect women from

sexual harassment at the workplace. These guidelines were to strictly observed in all workplaces
(whether in the private or private sector) and would be binding and enforceable in law until
suitable laws were made.

The Supreme Court set out the following significant guidelines:

1. The employer and / or other responsible people in a workplace are duty-bound to prevent or
deter sexual harassment and set up processes to resolve, settle or prosecute in such cases.

2. For the first time in India “sexual harassment was defined authoritatively”. The Supreme
Court stated that it includes such unwelcome behaviour (whether directly or by implication) such
as:physical contact and advances, a demand or request for sexual favours, sexually coloured
remarks, showing pornography, and any other physical, verbal or non- verbal conduct of sexual
nature.

3. All employers or persons in charge of workplaces must strive to prevent sexual harassment
and if any act amount to a specific offence under the Indian Penal Code 1860 or any other law,
they must take appropriate action to punish the guilty.

4. Even if the act is not considered a legal offence or a breach of service rules, the employer
should create appropriate mechanisms so that the complaint is addressed and redressed in a time
bound manner.

5. This complaint mechanism must, if necessary, provide a complaints committee, a special

counsellor or other support service, such as assured confidentiality. The complaints committee
should be headed by a woman, at least half of the members should be women. Also, to pre-empt
any undue influence from senior levels, the complaints committee must involve a third party
(such as a NGO) familiar with the challenges of Sexual Harassment.

6. The employer must sensitise female employees to their rights and prominently notify the
court’s guidelines.

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7. Even if a third party is responsible for sexual harassment, the employer must take all steps
necessary to support the victim.

8. The Central and State Governments should adopt suitable measures to ensure private sector
employees implement these guidelines.

6. COMPARISION WITH THE ACT

Most of the guidelines have been adopted verbatim in the Prevention of Harassment of Women
workplace Act 2013. There have been no significant changes except for the clause of out of court
settlement, but in this also there is no settlement in return of Money. This seems applicable on
paper but its implementation is a big question.

Also, In the Act, the woman has been allowed to take a leave from office for a period of 3
months from the date of the complaint being filed. While the Man has been asked to respond
within the given timeframe while working in the office. The lady (presumably the victim) is
allowed additional leave as and when she demands on top of the leaves that she was entitled to as
the employee of the company that she is employed with.

7. DEVELOPMENTS AFTER VISHAKHA

A huge amount of cases have cropped up across high courts (and occasionally supreme court)
with reference to the Vishakha Guidelines, these seek the establishment of complaints
committees, dispute the constitution of complaints committees have already been in place, or
challenge orders of dismissal based on the decisions of these committees.

Apparel Export Promotion Council v A.K Chopra was the first case in 1999 where the supreme
court found an opportunity to follow its judgement in Vishakha. The council Chairman was
accused of sexually harassing the secretary; though he made repeated attempts. the chairman
never actually molested her. On her complaint the employer was fired. On the basis of a writ
petition filed by the employer the Delhi High Court took cognisance of the fact that he never
actually molested her and did not make any actual physical contact. Thus concluding that he did
not actually molest her. In an appeal filed by the council, the Supreme Court reversed the Delhi
High Court Judgement, recognising that physical contact was not a prerequisite of Sexual

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Harassment, given the broad definition under Vishakha. It asserted that sexual harassment
compromised the dignity of women and cannot be condoned. It asserted that sexual harassment
compromised the dignity of women and cannot be condoned. In addition to the international
sources referred in Vishakha, the court also cited the International Covenants on Economics,
Social and Cultural Rights and the International Labour Organization’s seminar on combating
Sexual harassment at work.

The Supreme Court’s refreshingly progressive approach in Chopra marked a transition in the
usual stance of Indian Courts. The apex court acknowledged that harassment transcends physical
barriers and the effects of mental harassment can be equally damaging. And yet the court’s deep
seated insensitivity to women’s issues does come up occasionally.

In DS Grewal v. Vimmi Joshi a colonel of the Indian Army made advances at and wrote
inappropriate letters to the principal at an army school. The principal was apprehensive that if
she objected to his conduct, he would create a hostile working environment and hinder her
employment, including her promotion. Her fears did come true as her services were terminated.

The Supreme Court ordered the school management to constitute a three- member complaints
committee (as mandated by Vishakha Guidelines) to ascertain if there were any prima facie case
against the army officer. If the committee found such a case, it would submit its reports to the
army, which would then initiate disciplinary proceedings.

The court also affirmed that the school management was bound to bear the legal costs incurred
by the principal (with counsel fee assessed at 50,000) for it had not complied with Vishakha
Guidelines to begin with. In the absence of laws relating to sexual harassment Vishakha
Guidelines were the only reliable source of action. It acted as a deterrent and ensured strict
compliance was done with respect to its provisions. The mere idea of being prosecuted in such a
grave issue invited much public ridicule. Courts emphasised on the strict compliance on the
Vishakha Guidelines and have not viewed alternative mechanisms kindly. In a case where a
public company appointed an advocate as an inquiry officer to investigate a complaint of sexual
harassment, The Bombay High Court refused to accept the efficacy of the procedures followed
and held that the complaints mechanism employed in Vishakha was mandatory. The Vishakha
Guidelines had been applied to almost all forms of formal employment even NGOs and

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Cooperative societies. As Kerala HC observed the ‘the quality of womanhood does not change
by the place she works in be it public or private’.In yet another shift of stance, The Madras HC
held that even in the cases where the allegations of sexual harassment seemed baseless and
seemed like an after thought, proper course would be to first refer the issue to the complaints
committee. Vishakha was indeed the first legislation which defined harassment inclusively and
covered allthe behaviours which denied a person employment– related benefits due to rejection
of sexual Demands (quid pro quo harassment) or creates a hostile work environment (without
directly impacting on economic and other benefits).

8. DOUBLE EDGED SWORD: INSTANCES OF USE OF LAW AS

MEANS OF VENGEANCE

Any measure which aims to protect the disadvantaged sections of the society or minorities is
likely to be abused, and Vishakha is no different. In the case of Usha C.S v. Madras Refineries,
The Madras High Court heard a complaint of sexual harassment made by the employee of
Madras Refineries Ltd, a public sector undertaking. The employee alleged that she was denied
her study leave with pay, salary and promotion because she rejected the advances of the general
manager of her department. After examining the facts the court held that the employees
allegations regarding her promotion and study–leave were baseless, as both decisions appeared
to have been taken in accordance with the company policy. Further, the complaint committee had
been properly constituted, but the employee had persistently delayed the inquiry, therefore, her
allegations of sexual harassment were merely a weapon to bargain for a promotion and study
leave and pay, contrary to company policy. Highlighting and condemning the misuse of the
Supreme Court’s judgement in Vishakha, the court held: “The employer, who is supposed to
keep a vigilant eye on the victim and the delinquent, is not expected to allow the woman to use it
as a shield so presented by the apex court as a means to seek vengeance. It is true that we are
bound by the decisions of the apex court, but that does not mean that they can be allowed to
interpret to suit the convenience of the woman like the petitioner, for personal gain.” The court
thereafter described Vishakha as a ‘double- edged weapon’. In keeping with other decisions on
the subject, it affirmed that the court cannot assume that the court cannot assume that an
allegation of harassment is correct unless it is first referred to a complaints committee. The bench
urged the other courts to bear in mind the facts of each case individually, without assuming that

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the woman is a victim in each case. In fact in this particular case the appellant had a history of
unwarranted leaves and absences. Such cases bring light to the anomaly of use of positive laws
for harm to a person. Though a lot many researchers are of the view that since the false cases are
only 4% or 5% of the whole of the cases filed according to NCRB data That these cases should
be ignored and a bigger picture should be looked at. These laws indeed help the woman assert
her position in society. But similar to Domestic Violence Cases and Dowry Harassment Laws
there are a huge number of people who are threatened with false prosecution. Just like women
find it difficult to accept and tell the people if she has experienced sexual assault. It is equally
tough for a Man who has been falsely implicated to prove his innocence. As seen in the famous
Rohtak Brave hearts Case, the media was quick to pounce on the story of two women
mercilessly beating up their Molesters in a Haryana Intercity Bus, these Men were branded as
Demons and were called all sorts of Names. They tried to assert their innocence but to no avail.
They were portrayed as villains in the story. While the girls were catapulted to the status of
Heroines even before the case went on trial.

9. CHANGES IN THE SEXUAL HARASSMENT OF WOMEN AT

WORKPLACE ( PREVENTION, PROHIBITION AND REDRESSAL )
ACT, 2103

The Act recognizes the possibility of false prosecution and says that all the punishments which
would have been applicable on the perpetrator had the accusation be proved would be conversely
applicable on the plaintiff if she files a false case.

10.SCOPE OF THE ACT

The act is revolutionary in every sense but it has come under scrutiny because its narrow scope,
exploitation of men though not a common practice in India. Is also not unheard of. But, One
thing that the act definitely did was improve the status of the labour class or the housemaids
whose rights were tough to protect even in the Vishakha guidelines, have been given proper
redressal mechanisms so that their rights are also protected.

As it is women’s participation across industries in negligible amounting to only 4% according to

NCW data, women may find it difficult to get hired. As an employer may find it easier to hire a

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man with less expertise but also less complications. As in the case of a woman facing sexual
harassment the employer has to bear the cost of the litigation as well as grant her leave up to
three months in addition to the normal leave she was entitled to. All this adds to the cost.

11. PROVISIONS OF THE ACT

It had come to the attention of different courts in India that the guidelines that have been set by
the supreme court of India were not practiced in many workplaces in the country. It took 16
years after the passing of the landmark case of the Vishaka and others v. State of Rajasthan and
the judgement where the supreme court had set up guidelines for sexual harassment in the
workplace a proper legislation was enacted, this was the Sexual Harassment of Women at
Workplace (Prevention, Prohibition and Redressal) Act, 2013. This act has filled in the void of
proper legislation that delivers each and every woman of India, regardless of age or status of
employment, a workplace that is safe and secure from any kind of harassment. The above-
mentioned Act’s objective is to not only protect but also to prevent any kind of sexual
harassment that occur in workplace and also it ensures a speedy remedy for any complaints that
are filed under the act. In 2013, there have been anamendment to the criminal law act where
amendment had criminalized stalking, sexual harassment, etc. One of the most important features
of the act is the setting up of committees for any redressalof grievances, this has to be done both
for the organized and unorganized sector. The said committees are as follows:

• Internal complaints committee: any organization that employs more than 10 employees must
have an Internal complaints committee also called as ICC in each office or branch.

• Local complaints committee: There should be a Local complaints committee also called the
LCC to be set up by the government of India in the district level for the unorganized sector and
also for the institutions having less than 10 employees. The ICC and the LCC under the Sexual
Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 gives
them the power equal to a Civil court, they have the power to call and inspect any accused under
oath, to produce the necessary documents related to the complaint, and any necessary matter that
is.

12. ANALYSIS

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The implementation of the Sexual Harassment of Women at Workplace (Prevention, Prohibition

and Redressal) Act, 2013 has been a good initiative but it still is not free from any loop holes and
issues in the laws they are stated as follows: if a male employee ever goes through sexual
harassment, he will not be able to claim relief under this particular legislation. The law talks
about formation of the ICC for redressal of complaints, but the legislation is very vague in
respect of the ICC regarding its constitution, the setting up of an ICC in every branch and office
is a very expensive affair. The ICC includes only personnel from the company itself, there needs
to be an individual who is not related to the company at all in the committee, this individual
should be knowledgeable in terms of law or women’s rights, such an appointment makes the
decision a favourable one. needed for the speedy conclusion of the case.

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CONCLUSION

We have certainly come a long way from having no mechanism for redressal available to a
woman to a very potent and robust mechanism available for redressal. In depth view in the topic
makes us realise that any law cannot be unidimensional. And a law as revolutionary as sexual
Harassment of Women in Workplace has had huge social implications. What I feel is that this
law is certainly a step in the right direction. What it requires is public awareness, sensitivity and
robust implementation. I think when any incident happens people should not become
judgemental against the woman or the man. The due process should be followed.There should
also be a Men’s Commission in place so that even men have the right to addres their grievances
in a systematic manner. As the job of the Act is to bring equality not to suppress any gender.

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BIBLIOGRAPHY

1. 10 Judgements that changed India

2. Constitution Of India

3. Avani Mehra Sood, PART 2 EQUALITY SOCIAL INCLUSION AND WOMENS

RIGHTS: REDRESSING WOMENS RIGHTS VIOLATIONS THROUGH

JUDICIARY. Jindal Global Law Review (vol.1)(2009)

WEBLIOGRAPHY

• SCC ONLINE

• NCRB YEARLY REPORT 2016

• International Labor Organization Tripartite Regional Seminar on Combating Sexual

harassment at work, Manila, November 1993

• Rohtak Bravehearts the continuing story, Documentary by Deepika

Narayan Bharadwaj

• You tube/Rohtakbravehearts

• Vox.com/ Colin Capernick / Nike

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