CHAPTER 1

INTRODUCTION

“The right to be protected from Sexual Harassment and sexual

assault is one of the pillars on which the very construct of gender
justice stands.”1

1.1 Introduction

Women across the world have tasted all flavors of life from the glory; respect
which she was ascribed in the Vedic period, to the denial and subordination in the
post Vedic period and finally to the struggle for equality, recognition and survival in
the contemporary world. But one thing that has been common throughout these
phases is the disadvantaged status of the women. Harassment is behavior, which has
the effect of humiliating, intimidating, or coercing someone through personal attack.
It is such behavior that can cause embarrassment, uncomfortable and cause emotional
distress.

Sexual harassment at workplace has been recognized as the most intimidating,

degrading and violating form of violence against women. Within the workplace, it
creates a hostile work environment and reinforces the perception of subjugation and
suppression of women by men in all areas of their lives. In the context of the
workplace, the rejection of attempts at sexual harassment may affect a decision
concerning the employment status, conditions of work, compensation and other terms
& conditions of employment. Sexual harassment is considered as a violation of
human rights as it is a form of sex discrimination.2 Women have been made to face all
kinds of violence, physical abuse, verbal abuse, emotional distress, economic abuse,
denial of right to live, subordination and neglect.3 The acts of abuses like eve-teasing,
molestation, sexual abuse and rape cover both physical and verbal abuses. However,
they all are different parts of what is commonly known as sexual harassment or sexual
misconduct. The concept like eve-teasing gained nationwide attention in the 1960‟s
but today eve-teasing has evolved as a huge issue in many metropolitan cities of
1
Justice Verma Report on Amendment to Criminal Law, 2 (2013).
2
M. Pallavi Jane Periera, Sexual harassment at Workplace in India, Medico Legal aspects, 36
(2014).
3
<http://articles.economictimes.indiatimes.com>Accessed on April 30, 2016.

1
India. A large number of Indian women have faced or are facing this menace. Another
form of violence against women is that of molestation, or what is commonly known
as „sexual abuse‟ or „sexual assault‟. It is the forcing of sexual behavior by a man over
the women. Further, rape is one of the most extreme forms of sexual violence
committed against women. It is an act of physical violence and assault which is
expressed through sexual means. The position and status of women has been a
dynamic concept since ages. Beginning from the Vedic period till present time, the
status of women has gone through enumerable changes.4 But one thing that has been
similar throughout these phases is the degrade status of the women. The most heinous
and shameful of such acts is the act of violence against women. Violence against
women is a wide term that encompasses multifarious acts of violence, abuse and
torture against women. It does not simply refer to the physical violence which a
woman has to bear, but also verbal abuse, emotional abuse, economic deprivation and
social disregard. No women are born to be treated with an inhuman behavior and to be
deprived of her right to life and right to live with dignity. Any sort of violence
committed against a woman is a direct attack on her dignity and human rights and is
the most shameful violation of basic human rights. Women of all ages, from all kinds
of background and from all walks of life go through some sort of violence in different
phases of their lives. It may be in the form of domestic violence, sexual abuse,
physical and verbal abuse, rape, trafficking in women and young girls, forced
prostitution, dowry related violence, dowry deaths, female feticide or infanticide and
other inhuman practices. They are victimized and ignored in all fields of life and have
to face discrimination in every sphere of human activity. Thus, women across the
world face these practices in almost all spheres of life; this may include education,
employment, at home, at workplace, in marriage, or even in childhood.5

1.2 Meaning

Harassment covers a wide range of behaviors of an offensive nature. It is

commonly understood as behavior which disturbs or upsets, and it is characteristically
repetitive. In the legal sense, it is behavior which appears to be disturbing or
threatening. It may be physical or mental abuse. Mental abuse or harassment means
any act including confinement, isolation, verbal assault, humiliation, intimidation,
4
<http://www.wikipediafreeencyclopedia.com/sexualharassment>Accessed on May 01, 2016.
5
Vandana, Sexual Violence against Women: Penal Law and Human Rights Prespectives, 145
(2009).

2
infantilization, or any other treatment which may degrading the sense of identity,
dignity, and self-worth refers to different of physical and verbal gestures, remarks and
comments. It also covers physical abuse by force or without the consent of woman.

This type of behavior can take many different forms for blocking someone's
path to the threat of physical abuse. 6 Physical abuse or harassment also includes
harassment of sexual nature. Sexual harassment refers to persistent and unwanted
sexual advances, typically in the workplace, where the consequences of refusing are
potentially very disadvantageous to the victim. India is facing the problem of
increasing instances of sexual harassment at workplace that despite numerous laws in
place to tackle the menace. Sexual harassment at workplace hampers women‟s
Constitutional and fundamental rights to equality, justice and right to life and dignity.
It sabotages a woman‟s work performance & progress, affects working environments,
results in frustrations & absenteeism. Sexual harassment at workplace is treated as the
breach of women's right to equality or live life and work with dignity. It makes
workplace environment unfriendly or unsafe because of that women do not feel
comfortable sat the workplace. This effect the growth of women as well as of the
country because growth or development of country is always with the growth of all
the section of the society. Sexual harassment in the past had always received a
lukewarm response be it sexual harassment of nurses in public and private hospitals of
air-hostesses by their colleagues and passengers, of teachers by their colleagues,
principals and management representatives and so on. But this trivialization did not
deter the women‟s rights activists and several women‟s groups came forward in
support of the concern about a variety of sexually violent acts against women. Women
have been suffering the ignominy of sexual harassment at workplace, either because
of the patriarchal mindset of society or out of fear of being exposed to further ridicule
or threat to leave the job. 7 Whether an act or conduct could amount to sexual
harassment is dependent on the specifics of the act and the instances. The following is
an indicative list of conduct that could be considered as amounting to sexual
harassment:

6
<www.wisegeek.com/what-is-physical-harassment.htm>Accessed on April 29, 2016.
7
Alok Basin, Law relating to Sexual Harassment at Work, 31 (2007).

3
a) Unwelcome sexual advances or propositions

b) Offering benefits in job in exchange for sexual favors

c) Leering

d) Making sexual gestures or remarks

e) Displaying sexual nature of objects or pictures, cartoons, calendars or posters

f) Making or using derogatory comments, comments about a person‟s body or

dress, slurs, epithets or sexually suggestive jokes

g) Written communications of a sexual nature distributed in hard copy or via a

computer network, suggestive or obscene letters, notes or invitations

h) Physical conduct such as unwanted touching, assault, impeding or blocking

movements8

i) Making or threatening retaliation after a negative response to sexual advances

or for reporting or threatening to report sexual harassment

j) Eve-teasing

k) Sexually tinted remarks, whistling, staring, sexually slanted and obscene

jokes, causing or likely to cause awkwardness
l) Subtle innuendoes or taunting regarding perfection, imperfection or
characteristics of physical appearance of a person‟s body or shape

m) Gender based insults or sexist remarks

n) Displaying pornographic or other sexually offensive or derogatory material

o) Forcible invitations for meetings

p) Physical touch or physical assault or molestation by force

q) Suggesting or implying that failure to accept a request for a date or sexual

favors would adversely affect the individual in respect to performance
evaluation or promotion

r) Explicitly or implicitly suggesting sexual favors in return for hiring,

compensation, promotion, retention decision or allocation of
job/responsibility/work

8
Supra note 3.

4
s) Behavior of a person who is superior in position and belonging to one sex
which denies or would deny equal opportunity in the growth of career or we
can say make workplace unsafe or insecure or for a person who is belonging to
the other sex, on the basis of denial for sexual favors
t) Physical confinement against the consent of women which destroys her
privacy.9

A workplace culture that is sexually permeated or hostile will amount to

sexual harassment. Some of the factors emerging which may indicate a potentially
hostile environment include the display of obscene or materials, general sexual banter,
crude conversation and offensive jokes. Employers may limit their liability if they can
show that they took all reasonable steps to prevent the acts of sexual harassment.
Reasonable steps may include policies and procedures made to create a harassment
free environment. It could also include procedures to deal with allegations of
discrimination made by employees or customers. To be effective, policies must be
well implemented, including through the provision of ongoing training,
communication and reinforcement.10

1.3 Definitions

Sexual harassment has an immense effect on gender relations. Speaking

generally, it is a behavior with a sexual connation that is unwelcome and abusive in
nature. The following definitions enumerate that sexual harassment at workplace is an
unwelcome sexually oriented behavior resulting out harassment at workplace and it
has serious consequences on the employment of women.11

1.3.1 The UN Declaration on the Elimination of Violence against Women defines

“violence against women as any act of violence that results in or is

likely to result in physical, sexual, or mental abuse, harm or
suffering to women. It could be threats of such acts, coercion, or
arbitrary deprivation of liberty, whether occurring in public or in
private life”.

9
Ibid.
10
<https://www.humanrights.gov.au/sexual-harassment-workplace-legal-definition-sex.>Accessed
on April 30, 2016.
11
J.L. Kalyan & R.H.Waghmode, Sexual Harassment against women in India, 2 (2015).

5
 It includes physical, verbal, sexual, economical and psychological violence
occurring in the family as well as in the general community. It includes battering,
sexual abuse of children, dowry related crimes, rape, female genital mutilation and
other traditional practices harmful to women, non-spousal violence and violence
related to exploitation, sexual harassment at workplace, trafficking and forced for the
prostitution in women, violence perpetrated or condoned by the state.12

1.3.2 Haspels, Kasim, Thomas and Mckann, International Labour Office ILO
Bangkok Area Office and East Asia Multidisciplinary Advisory Team (2001)
define sexual harassment:

“as form of gender discrimination-based violence. According to them

the problem relates not so much to the actual biological differences
between men and women rather but to the gender or social roles
attributed to men and women in social and economic life,
perceptions about men and women sexuality in society resulting in
unbalanced men-women power relationships.”13

1.3.3 Gutek and Morasch, The Journal of Social Issues compared sexual
harassment of women at workplace which turns to rape show that they share common
features. Exercise of power by one person over another is a kind of abuse or misuse of
power. Unwelcome sexual intimacy that, sexual attention that is sexual harassment.
As explained by them in rape, men use their greater physical strength to engage in
sexual activity with women and in sexual harassment men use their superior position
at workplace to elicit sexual favors from women.14

1.3.4 The Sexual Harassment of Women at Workplace (Prevention, Prohibition

and Redressal Act, 2013 includes any one or more of the following acts or
behavior (whether directly or by implication) namely:

a) “unwelcome physical contact and advances

b) a demand for sexual favors
c) making sexually remarks
d) showing obscene material or pornography

12
Ibid.
13
Id.
14
<www.isrj.in>Accessed on May 1, 2016.

6
e) any other unwelcome physical, verbal or non-verbal conduct of sexual
nature”15

1.3.5 Workplace is the location where someone works. Such a place can range from
a home office to a large office building or factory. For industrialized societies or in
present era, the workplace is one of the most important social spaces other than the
home, constituting a central concept for several entities: the worker and his/her
family, the employing organization, the customers of the organization, and the society
as a whole. Workplace includes:

a) “any government department, organization, undertaking, establishment,

enterprise, institution, office, branch or unit which is established, owned,
controlled or wholly or substantially financed by funds provided directly or
indirectly by the appropriate Government or the local authority or a
Government company or a corporation or a co-operative society;
b) any private sector organization or venture, undertaking, enterprise,
institution, establishment, society, trust, non-governmental organization, unit
or service provider carrying on commercial, professional, vocational,
educational, entertainmental, industrial, health services or financial activities
including production, supply, sale, distribution or service;
c) government or private hospitals or nursing homes;
d) any sports institute, stadium, sports complex or competition or games venue,
whether residential or not used for training, sports or other activities relating
thereto;
e) any place visited by the employee arising out of or during the course of
employment including transportation provided by the employer for
undertaking such journey;
f) a dwelling place or a house.”16

Sexual harassment at workplace is unwelcoming sexual advances or any

behavior of a sexual nature either physical or verbal which interferes in personal and
professional life of women or creates an intimidating, abusive, unsafe or insecure
work environment.

15
Section 2(n), The SHWPAct of 2013.
16
Section 2(o), The SHWP Act of 2013.

7
1.4 Research Hypotheses

The sexual harassment of working women can neither be prevented by new

enactments nor by enlarging the law- enforcing agency. The existing legislation is less
effective as women are not aware about such legislations which are made for their
protection.

1.5 Research Methodology

Research methodology adopted for this study has been doctrinal and empirical
in nature. Research was primarily based on the primary and secondary sources
available in various libraries and institutions. The researcher has gone through various
books, journals, publications, articles, published and unpublished proceedings of
seminar on this theme, newspapers on the subject, research study, and annual surveys
for the purpose of collecting literature for this study and also study the data collect by
the NCRB and reports given by NCW and NHRC.

1.6 Research Objectives

The following are the objectives of research:

a) To study the concept of harassment, sexual harassment and workplace

b) To study women‟s right to equality, life and liberty

c) To analyse legislative framework regarding the protection of women from

sexual harassment at workplace

d) To study international scenario relating to the protection of women from

sexual harassment at workplace

e) To analyse judicial precedents related to sexual harassment at workplace

f) To identify gaps in the legislation dealing with the sexual harassment at

workplace

g) To critically analyse the status regarding the protection of women from sexual
harassment at workplace

h) To suggest suitable measures for the protection of women from sexual

harassment at workplace.

8
1.7 Review of Literature

As far as the concept of sexual harassment at workplace is concerned, lots of

books are deals with the same. Various authors have tried to conceptualize the terms
in social exclusion. Vast literature is available on separate categories of harassment,
sexual harassment at workplace and women‟s right to equality life and liberty. Some
of the reports, books and articles which deal with the protection of women from
sexual harassment and criticism of the same are as under:

a) S. R. Myenni,17 authored book chapter 4 of this book is sexual harassment of

women at workplacefocuses on the Act “The Sexual Harassment of Women at
Workplace (Prevention, Prohibition and Redressal) act, 2013”, its objects and
reasons for the enactments with the definitions and other provisions of the act.
But define only the enactment provisions not any other provision related to the
concept.
b) Vandana,18 in chapter 8 of the book is explains sexual harassment concept,
myths and realities. It also focuses on forms of sexual harassment and impact
of sexual harassment. In this book the concept is explain with the help
CEDAW, the author does not take any help from the enactment.
c) Shoba Saxena, 19 authored book chapter 6 of the book is eve Teasing and
sexual harassment, it includes prosecution for sexual harassment,
manifestations of sexual harassment and fighting sexual harassment. These
provisions are totally social, there is lack of legal provision in the book.
d) Ram Ahuja, 20 authored book focuses on the problem of violence against
women, women‟s harassment and the Constitution of India guarantees
equality, freedom, opportunity and protection to women and various
legislations give them several exclusive rights. But the author does not talk
about the enactments which are made for the benefit of women and for the
protection of their rights.
e) Prabhat Chanda Tripathi,21 in his book discusses criminal exploitation of
women in contemporary society, the status of women in vedic period and view
of Manu about the status of women. This book is focus only on the historical
concepts and views.
17
S.R. Mynenni, Law relating to Women, 10 (2001).
18
Vandana, Sexual Violence against Women: Penal Law and Human Rights Perspectives, 15(2009).
19
Shoba Saxena, Crime against Women & Protective Laws, 24 (2001).
20
Ram Ahuja, Violence against Women, 35(2003).
21
Prabhat Chandra Tripathy, Crime against Working, 32 (1998).

9
f) Alok Bhasin, 22 authored whole book focuses on the sexual harassment, its
meaning, historical background, why sexual harassment needs to be combated,
Constitution of India and sexual harassment, National Commission for
Women Act and sexual harassment and vicarious liability of employer for
sexual torts of employees. In this book with all these concepts the author may
also focus on the loopholes of the enactment.
g) A commentary by Justice P. S. Narayanan, this commentary gives on the
comments on the provisions of the enactment; it includes the comments on
definitions or all other provisions of the act. This is only a commentary on the
bare provisions nothing about the historical background or sources.
h) S. C. Tripathi and Vibha Arora,23 authored book and chapter 2 is sexual
harassment of working women at workplace explains the need for effective
and appropriate legislation, what amounts to sexual harassment, international
conventions on sexual harassment and sexual harassment of working women
and Indian Constitution. Again, this book is not properly explaining the bare
provisions.
i) Mamta Rao,24 authored book and explains sexual harassment at workplace
with some relevant judgments, CEDAW provisions, national scenario and
Vishaka case Guidelines. This book only focuses on national and international
sources nothing about the current position.
j) Devinder Singh,25 in his book explains legislative efforts, validity of judicial
legislation and law declared in „Vishaka v. State of Rajasthan’. The guidelines
of the judgement are explained in a proper manner which are helpful in
understanding the bare provisions.
k) An article published in Journal Indian Academic Forensic Medicine,
“Sexual Harassment at Workplace in India, Medico- Legal aspects” 26 , this
article explains from the medical view point as well as legal view point with
database study of crime against women in India during 2012. In this article

22
Alok Bhasin, Law relating to Sexual Harassment at Workplace, 23 (2007).
23
S.C. Tripathi and Vibha Arora, Law relating to Women & Children, 34 (2015).
24
Mamta Rao, Law relating to Women & Children, 22 (2005).
25
Devinder Singh, Human Rights: Women and Law, 45(2005).
26
Journal Indian Acedemic Forensic medicine, Sexual Harassment at Workplace: Medico- Legal
aspect, Vol. 36, (2014).

10
 there is lack of general provisions the author explains the concept from
medical point of view.
l) An article published in International Multidisciplinary Research Journal,
“Sexual Harassment against Women in India: An overview” 27 , it includes
meaning, definition of sexual harassment and sexual harassment includes eve-
teasing, molestation, rape and impact on women and society. The author does
not focus on the concept of workplace.
m) An article published in Amity Law Review, “Vulnerability of Laws relating
to Sexual Harassment of Women at Workplace in India”28 it explains sexual
harassment depicts a behavior of a sexual nature which is unwanted and which
may reasonably be expected to cause humiliation. The author properly
explains the provisions of the act.
n) An article in Amity Law Review, “Gender Justice, Labor Law and Policies
in India”29 it describes the policies for the protection of gender equality and to
give safe environment at workplace is one of them. In this article the lack of
the enactment provision is seen.
o) An article published in Plebs Journal of Law, “Sexual Harassment of
Women at Workplaces”30, it describes history, common effects on the victims,
organizational policies and procedures and Supreme Court Guidelines.

The literature on sexual harassment at workplace is enough to explain the

concept, historical background, national, international sources and the provisions of
the act with relevant judgments and guidelines given in landmark case Vishaka case.
The gap lies with the criticism or the literature does not talk about loopholes of the
enactment or misuse of the enactment.

27
International Multidisciplinary Research Journal, Sexual Harassment against Women in India: An
overview, Vol. 2, (2015).
28
Amity law Review, Vulnerability of Laws relating to Sexual Harassment of Women at Workplace
in India,Vol. 9, (2013).
29
Amity Law Review, Gender Justice, Labor Laws and Policies in India, Vol. 8 (2012).
30
Plebs Journal of Law, Sexual Harassment of Women at Work, Vol. 1 (2015).

11
1.8 Plan of Study
The study has been divided into various chapters briefly discussed below:
CHAPTER TITLE
1. Introduction
2. Historical Background
3. International framework relating to
the protection of women from
sexual harassment at workplace
4. Legislative framework relating to
the protection of women from
sexual harassment at workplace
5. Role of Indian Constitution and
judiciary in curtailing sexual
harassment of women at workplace
6. Empirical study of the protection of
women from sexual harassment at
workplace with reference to Union
Territory Chandigarh
7. Conclusion and Suggestions
12
SCOPE
This chapter introduces the concept of
Sexual Harassment at Workplace with
meaning, definitions. It also explains
the Research Hypothesis, Methodology
and Objectives.
The second chapter is starts with what
was the situation of women in Vedic
era till British period. After that it
includes the development of Sexual
Harassment from 1970s to the Act of
2013 came into force.
This chapter is basically about that
International community which
recognizes the concept the sexual
harassment of women at workplace and
the laws relating to this in different
countries.
The fourth chapter includes different
Indian laws related to sexual
harassment of women at workplace and
the specific legislation i.e. “The Sexual
Harassment of Women at Workplace
(Prevention, Prohibition and
Redressal) Act, 2013”. After that this
chapter ends with loopholes of the
above said specific legislation.
This chapter analyses in detail
Constitutional safeguards relating to
sexual harassment of women at
workplace.
The sixth chapter is about the empirical
study in reference to UT Chandigarh.
Here I have collected data of the
complaints of sexual harassment at
workplace from public and private
sectors, hospitals, sports institutes and
NGOs and in last I have been complied
them.
Finally, in the last chapter the
researcher has concluded the research
work and has also given suggestions
according to the study and research.