Sexual harassment at workplace was not originally conceived as a separate offence in the Indian Penal Code (IPC). The question drew first attention in India in 1997. The credit goes to the instrument of Public Interest Litigation (PIL), which, itself, is a creation of judiciary. An NGO, called Vishakha, took a case of gangrape in Rajasthan to the Supreme Court challenging the Rajasthan High Court verdict.
While hearing the matter, the Supreme Court noted the lack of legal recourse against sexual harassment at workplace. The Supreme Court defined what would constitute sexual harassment at workplace and issued guidelines that were to have statutory value until a proper law was enacted by Parliament.
Before the Supreme Court set the law against sexual harassment at workplace in order, such cases were dealt under IPC Section 354 (outraging the modesty of women) and Section 509 (using a word, gesture or act intended to insult the modesty of a woman).
In the concerned case, a Rajasthan government employee with the Women’s Development Project was gangraped for campaigning against and stopping child marriage. Powerful landlords of a village, not very far from Rajasthan’s capital, Jaipur, were accused of perpetrating the crime as they were enraged by the “guts” of a “lowly-born woman” who opposed marriage of a child of Gurjar family.
The incident took place in 1992. Both the trial court and the high court found the accused not guilty.
A group of activists, under Vishakha, moved the Supreme Court in 1997. And, sexual harassment at workplace got a definition in India. It took another 16 years for Parliament to replace the Vishakha guidelines with a law called, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
What is sexual harassment?
In simple words, sexual harassment at workplace is an act or a pattern of behaviour that compromises physical, emotional or financial safety and security of a woman worker. Legally speaking, sexual harassment includes such unwelcome sexually determined behaviour as:
a) physical contact and advances;
b) a demand or request for sexual favours;
c) sexually coloured remarks;
d) showing pornography;
e) any other unwelcome physical verbal or non-verbal conduct of sexual nature.
Sexual harassment is also understood to have taken place if a victim has reasonable apprehension of facing humiliation, and health and safety problem at the place of her work.
If the employer or the co-workers by any action or words or gesture create a hostile environment for a woman worker, it amounts to sexual harassment.
The 2013 Act has also defined a quid pro quo arrangement undermining the consent of the aggrieved woman employee as sexual harassment. This is a significant clause as it removes the oft-referred defence by the accused that the act was consensual in exchange for some favour. The authority of the aggressor has been taken into account under this provision.
Under the law, physical contact between the aggressor and the victim is not required for the occurrence of sexual harassment. Verbal abuses, lewd jokes, sexual gestures, sharing of pornographic material, spreading rumours to tarnish reputation or any other act that creates a hostile work environment constitutes sexual harassment.
The law and the Vishakha guidelines don’t put a restriction of time period for lodging a complaint of sexual harassment.
A person found guilty of sexual harassment at workplace may be sent to prison for three years under modified IPC Section 354.
In cases of rape, the maximum punishment is decided in accordance of Section 376 – life imprisonment except when victim dies or is left in vegetative state.