(Keywords: women, offence, sexual harassment, CEDAW, legislation)
The status of women changed with the advancement of time if we look into the history of our country. The position of women differs in different field in various aspects. In early-vedic time women were free and they actively participated in social, religious and economic field. In later-vedic period their position declined and their participation became limited. In the medieval time evil social practices like sati, polygamy, child marriage, female infanticide etc. were widely practiced. During British rule and post independent period their position became better due to certain legislation. With the change in time the nature of offence changes. Among many other offences one is ‘sexual harassment at workplace’. The article focuses on the aspect of sexual harassment at workplace by women in workplace in 21st century. This offence is not only violation of human rights or gender inequality but it also violates right to live with dignity. The countries like England and United States has legislation regarding harassment. In England provisions were added for harassment under Public Order Act. In United States definition of sexual harassment was given by United States Equal Employment Opportunities Provision. In the international level the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) was adopted in 1979 by the UN general assembly. CEDAW is an international convention for rights of women. In India landmark case of Vishaka vs. State of Rajasthan in 1997 is one of the important cases among several for sexual harassment. In our country, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act was passed on 2013. The Act came into force on 9th December, 2013. Even though there is legislation and the guidelines of the Vishaka Case this offence is prevalent in 2020.
The history of our country gives the idea of the position of women in society from the vedic period to the present times. This time can be classified into five categories like, early-Vedic time, later-vedic time, medieval period, British rule and post independent period. The history suggests that with advancement of time the status changed. In international level the Convention on Elimination of all Forms of Discrimination Against Women, 1979 also known as CEDAW was adopted. Its aim was to ensure equality between men and women by giving women equal access to political and public life. The convention is the only human right treaty for the rights of the women and targets culture and tradition which is responsible for the gender roles and family relations. The convention also realized that a change in traditional role and role of women in society and in family is needed to achieve complete equality between men and women.
In India the landmark case of Vishaka vs. State of Rajasthan is an important case regarding sexual harassment at workplace. This case is the foundation of the legislation in India. In India the legislation to prevent sexual harassment the “Sexual harassment at Workplace (Protection, Prohibition & Redressal) Act” was passed in the year 2013.
From early-vedic period to Vishaka case even today women faces sexual harassment in workplace even after legislations and regulations this offence is prevalent till date.
Historical Background: A study on condition of women in past:
The history of our country may roughly be divided into five types to describe the condition or the status of women like early-vedic period, later-vedic period, medieval period, British rule and post independence period.
1. Early-vedic Period:
The women enjoyed freedom and equality even though male child was preferred over female child. Both male and female were equally open to education. Women participated in all spheres like social, economical, political, cultural and religious etc. Women from higher societies were allowed to go for upanayana rites. Mention must be made about women like Gargi, Ghosa, Maitryee, Khana and Loopamudra who were well known scholars at that time. Women participated in all ceremonies. They had freedom to choose their mates but divorce was not permissible . The work of the women include spinning, weaving and in agricultural field. Women advised in financial matters and also political matters. Unmarried daughter’s had their share over their father’s property and at times they had fully right in absence of a son. Mother’s property was equally divided among son and daughter .
In epics like Ramayana and Mahabharata the female characters are well educated. They advised their counterparts on social, religious, political and financial issues and played an effective role.
In short the early-vedic period may be summed up by the absence of purdah system, equal rights in selecting partners, polygamy was rare mainly confined among ruling classes. The dowry system was present only in the rich and royal families only in form of movable gifts. A widow could marry again. There was no discrimination between men and women.
2. Later vedic period:
In the later-vedic period the status of women declined. This is the period of Manusmriti and the period where the authority of men increased. The birth of a girl child was curse for the family.
Women were denied education which was previously their right. Upanayana or the sacred thread ceremony which was performed to initiate a person into vedic studies was prohibited for women and shudras. Thus, this became the key to restrict women from formal education. The age of marriage for girls became 9-10 years of age. Women of higher class received training in administration, military and fine arts. In the early-vedic period women use to help men in field but due to biological changes they were unable to perform agricultural work and was replaced by men. Therefore, this became another reason why the position of women declined .
3. Medieval Period:
Due to invasion by foreign powers the position of women declined in this period. Education and training became stagnant due to security reasons. Social evils like sati, child marriage, polygamy, ill treatment towards widows, female infanticide became very common. Juhar and Purdah system were introduced in Rajput community.
4. British Period:
During the time when East India Company was ruling India position social reformers like Raja Rammohan Roy, Ishwar Chandra Vidyasagar, Jotiba Phule and many others went through numerous challenges to eradicate social evils. Schools were opened to educate girls’ in the society. Raja Rammohan Roy with help of Lord Bentinck passed Abolition of Sati Act and made sati illegal . Child marriage and widow remarriage also became legal with efforts of social reformer like Kesav Chandra Sen and Ishwar Chandra Vidyasagar. Child Marriage Restaint Act and Widow Remarriage Act were passed during this period.
Thus, during this period the position of women became better. Education and organizing political participation increased women’s mobility. There were several enactments for eradication of social evils.
5. Post-independent Period:
The Constitution of India provides freedom and equality to everyone. Some of them are like providing free education to children also adequate means of livelihood etc.
Despite of several legislation inequality, discrimination and violence is still prevalent even in the year 2020. The cases of Vishaka vs. State of Rajasthan (1997), Dr. Ankita Baidya vs. Union of India, Mary Roy vs. State of Kerala (1986), Lata Singh vs. State of Uttar Pradesh (2004), CHEHAT vs. Union of India and Apparal Export Promotion Council vs. Union of India (1999) are the important cases which are the examples of inequality and discrimination against women in India even after the independence.
One of the most common issues is regarding sexual harassment at workplace. After a landmark case in Rajasthan i.e. Vishaka vs. State of Rajasthan in the year 1997 a legislature came up in the year 2013 as Sexual harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act.
Sexual harassment at workplace is universal problem around the globe. Be a developed nation or a developing nation it is common everywhere. In India atrocities against women is very common from the past to present i.e. from later vedic period to the 21st century.
According to NITI Aayog report published in the year 2018, around 24% of Indian women are in workforce. If the number is doubled to 48% to 50% then the GDP will increase from 5-6% to 9-10%.
The law of Sexual Harassment of Women at Workplace came into force on 9th December, 2013. Even after this Act the reality has not changed in the year 2019 a captain of Air India was alleged a pilot for sexual harassment.
Situation of Sexual harassment in India: 1997 to 2019
Sexual harassment of women in workplace is very around the world. It is prevalent in India too. The Supreme Court of India in 1997 gave a judgment and implemented measures to prevent sexual harassment at workplace. The bill was issued in 2015. The Sexual Harassment of Women at Workplace (Prevention, Prohibition, Redressal) Act was passed in the parliament of 23rd April, 2013. The law came into force on 9th December, 2013.
In the year 1997 in the case of Vishaka vs. State of Rajasthan (1997) 6 SCC 241, AIR 1997 SC 3011, the Supreme Court of India gave strict guidelines regarding sexual harassment at workplace. This case is the foundation of the legislation of Sexual harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
In the case a social worker named Bhawani Devi prevented a child marriage in her locality and thus raped by 5 men. Bhawani Devi worked under social development programme at rural level. The incident took place in September, 1992. The trial court acquitted the accused and the High Court upheld the judgment of trial court and held that the offence was committed out of revenge .
‘Vishaka’ a NGO and a group for women education took up the issue and filed a PIL in Supreme Court of India. The Constitution of India guarantees safe working environment in every profession. If the working environment it not safe it hampers the right to life and right to live with dignity. In this case the court upheld various guidelines for employees to follow them and avoid sexual harassment at workplace. It also says that the responsibility of the employer is to provide safe working environment for women.
In this case the Supreme Court defined sexual harassment. It takes away the right to life and right to live with dignity. Sexual harassment should be avoided and equality must be ensured. The Supreme Court stated the guidelines that person who is the employer should take effective steps to prevent sexual harassment. Penalty should be charged from the accused for such action.
National Commission for Women Act, 1990 came up for development of women’s right and status. The United Nations Commission on Status of Women recommended for the establishment of the national commission or similar bodies to review and recommend measures for equality between men and women. For this recommendation the government set up “Committee on Status of Women” in 1971. The committee in the year 1974 submitted its report and recommendation on the socio-cultural role in status of women, roles and rights required for participation in economic sphere, importance educational development for their growth, policies and programs for welfare and development of women. The National Commission for Women Act was passed in the year 1990 after 16 years of submission of recommendation.
Also it took a considerable amount of time after issuing ‘Vishaka Guidelines’ in the case of Vishaka vs. State of Rajasthan to implement a legislation against sexual harassment at workplace. The guidelines were issued in 1997 and the Act came up in the year 2013. Within this time gap a lot of incidents are reported and many unreported too.
Even after the famous Vishaka vs. State of Rajasthan in 1997 several cases on sexual harassment at workplace cases is still reported in India.
In Apparal Export Promotion Council vs. A.K.Chopra in 1999 the respondent was a secretary of the Chairman of Apparal Export Promotion Council, the appellant. He was alleged of molesting a women employee. The women employee, who was a clerk cum typist was molested on 12th August, 1988. The respondent was suspended on 18th August, 1988. He denied the charges against him. The person in charge of the inquiry found him guilty of the charges after going through the documentary and oral evidence. The Supreme Court in this case held that equality to all irrespective of gender is provided under Constitution of India. Incident of sexual harassment at workplace is violation of fundamental right of right to life and liberty.
The case of Medha Kotwal Lele vs. Union of India in 2013 was also an important case after 1997. The petitioner filed a PIL to seek the implementation of legislation which will ensure safe working environment for all women in India. Medha Kotwal Lele, coordinator of Alochona, a center for documentation and research of women, petitioned that highlighting number of individual cases of sexual harassment and stated that Vishaka guidelines were not implemented.
There is no doubt that the court has upheld the right to live with dignity but sexual harassment is a very common crime in India.
The Act is not inclined to one gender. Indian court has maintained the balance. The courts also take action against false complaint filed under the Act.
The workplace environment should be such that the harassment issues should not be unreported but at the same time men should not go under humiliation and torture because of false complaint.
According to the news articles the internal committee of the famous airways Air India received complaints among which 8 were of sexual harassment in the year 2019 . On 5th May, 2019 a women pilot of Air India launched a complaint of sexual harassment against a senior captain, who was her instructor. According to the reports in news articles both of them went out for dinner and the captain asked the women inappropriate questions . The instructor was suspended during the time of inquiry and was found guilty by the Internal Committee and a ‘major penalty’ according to companies service regulations were imposed on him .
The “#MeToo” movement brought up several unreported cases on sexual harassment. Around October, 2018 India witnessed “#MeToo” movement over the social media platform specially on “Twitter”. Multiple posts came up regarding sexual abuse, harassment, rape and misconduct. Many famous personalities from different field like politics, film industry and journalism and media was accused openly in social platforms.
Sexual harassment of women at workplace is very common in India. Legislations and guidelines are strict enough to prevent sexual harassment at workplace. Though there are rules and regulations to prevent sexual harassment of women at workplace and even after legislation this type of offence exist till date. From Vishaka Case in 1998 to the complaints by Air India pilots in 2019 we read many incidents on the news articles each day. Numerous times the incidents are not reported due to pressure of society. It is sad reality that majority of the women in India is either harassed and abused and still silent. It takes a lot of courage and strength to speak up and when they speak up there are societal pressure, character questioning etc.
The only difference from 1998 to 2020 is women became more vocal, and free to talk about the harassment. If women resign due to sexual harassment at workplace the ratio of working people will decrease and will result in economic downfall too.
Therefore the status of women has changed and there are laws to protect them by the mind set of people still needs to be improved. Case of Air India’s sexual harassment in 2019 is a reference to the fact that sexual harassment at workplace still exists.
If anyone misuses the provisions of the Act penalty is charged by the court. The workplace environment shall be such that the issues of harassment should not be unreported and at the same time men should not undergo pressure and harassment for false complaint. The maintenance of right balance is necessary.
Sexual harassment at workplace leads to restriction on right to live with dignity. Ensuing gender equality is important.
ADRIJA SAHA ,
AMITY LAW SCHOOL, KOLKATA