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HARASSMENT OF WOMEN AT WORK PLACE
CHAPTER
CONTENTS.
I 1. Intr Introd oduc ucti tion on.. 2. Rese Resear arch ch Pro Probl blem em.. 3. Obj Object ective ivess of the the sstud tudy. y. 4. Hypo Hypoth thes esis is.. II 5. Lite Litera ratu ture re revi review ew..
RESEARCH METHODOLOGY III
a. Rese Resear arch ch de desi sign gn.. b. Univer Universe se of of the the stud study. y. c. Sampling. d. Collec Collectio tion n of of data data.. e. Data Data Anal Analys ysis is.. IV f. Findings. g. Conclusio Conclusions ns and suggesti suggestions ons.. h. Bibl Biblio iogr grap aphy hy.. i. Appendix.
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CHAPTER - I INTRODUCTION
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CHAPTER - I INTRODUCTION
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In the modern society, as women try to fight economic disparity with men, a new form of crime crime emerges. That is sexual harassment at the work place. place. This offence offence is the most glaring glaring example example of human human rights rights violat violation ion,, gender gender inequa inequalit lity y and injust injustice ice.. What What exactl exactly y is sexual sexual harassment harassment at work place? place? It is only recently recently that it has been been recognized that violations of women’s bodies may extend beyond the brutal instances of rape, to other aspects of men’s conduct towards women. According to South East Region Women’s Group, sexual harassment takes a multitude of forms which includes, 1 “Comments about appearance/ body/ clothes; staring at a person’s body; sexist remarks or jokes, unwelcome sexual invitations, promise or threats concerning employment conditions in exchange for sexual favours; display of sexually explicit material, touching, hugging even indecent assault or rape.” In Vishaka v. State of Rajasthan Rajasthan 2, the Supreme Court took note of the fact that the present Civil and Penal laws in India do not adequately provide for specific protection of women from sexual harassment in work places and till enactment of such legislations, the Supreme Court guide lines and norms will be the law. RESEARCH PROBLEM 1 2
Dr. Mamta Rao, Law Relating to Women and Children (2005), P. 138 1997 (6) SCC 241
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This research is to find out whether women are harassed at her work place, whether whether it is public or private. Also it is to find out, out, whether the State Government had done any thing against the harassment of women at her work place.
The question is not whether women have the right to bodily integrity, as this right is already there under Article.21 3 of the Indian Constitution, which guarantees the right to life and liberty to both men and women. It is time to take decisive steps to curb this evil and make make the contemporary and future society a safe heaven for women. According to official statistics of 1991, one women is molested every 26 minutes. These statistics came from reported cases, if the unreported cases were to be included, it would be a matter of seconds rather than minutes. Most cases are not reported by victims because of various reasons such as family pressure, the manner of the police, the unreasonable and unjust process of law, and the consequences thereof. In instances where where women have reported reported such illegal illegal and unwelcome behavior, there have been significant victories.
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No person shall be deprived of his life and personal liberty except according to ‘procedure established by law’.
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OBJECTIVES OF THE STUDY
I took this project under the following objectives. 1.
To enquire whether there is harassment of women at work place.
2. Whether State Government had taken any steps to curb sexual harassment of women at workplace.
3.
To increase the awareness among public, especially working women about sexual harassment and its remedy.
HYPOTHESIS
1. Women are being sexually harassed at her work place, both public and private. 2. The Government machinery is ineffective in curbing sexual harassment of women at her work place. 3. The general public is unaware, especially working women, about sexual harassment and its remedy.
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CHAPTER - II LETERATURE REVIEW
With more and more women coming out to complain about sexual harassment at the workplace, feminist groups suggest severe
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punishments and compensation to combat the situation. Sexual harassment of a female at the place of work is incompatible with dignity and honour of a female and needs to be eliminated and there can be no compromise with such violations.
Sexual harassment is a form of sex discrimination projected through unwelcome sexual advances, request for sexual favours and other verbal or physical conduct with sexual overtones whether directly or by implication, particularly when submission to or rejection of such a conduct by the female employee was capable of being used for effecting the employment of the female employee and unreasonably interfering with her work performance and had the effect of creating an intimidating or hostile working environment for her.
Any action of gesture, whether directly or by implication, aims at or has the tendency to outrange the modesty of a female employee, must fall under the general concept of the definition of sexual harassment.
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CONSTITUTIONAL PROVISIONS
The Constitution of India provides for the enforcement of fundamental rights of working women under Articles 14 4, 195 and 216. It was by certain social activists and NGOs who helped in finding the true concept of gender equality and to prevent sexual harassment of working women in all workplaces through judicial process and to fill vaccum in existing legislation. The Supreme Court of India in 1997 held that the working women have rights to gender equality, to work with dignity and to a working environment safe and protected from sexual harassment or abuse. Accordingly, the Supreme Court issued guidelines and norms for protection and enforcement of the rights of the women at their workplaces. Further, the Supreme Court held that these guidelines and norms must be strictly observed in all working places by treating them as law declared under Article 141 of the Constitution of India i.a., the law declared by the Supreme Court
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Equality before Law, “The state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” 5 Clauses (a) to (g) of Art. 19(1) guarantee to the citizens of India six freedoms, viz., of ‘speech and expression’, ‘peaceable assembly’ ‘association’, ‘free movement’, ‘residence’ and ‘practising any profession and carrying on any business’. 6 No person shall be deprived of his life or personal liberty except according to ‘procedure established by law’.
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shall be binding on all courts within the territory of India 7.
PROVISIONS IN INDIAN PENAL CODE, 1860.
Sections 354 and 509 of the Indian Penal Code, 1860 deals with assault or criminal force to woman with intent to outrage her modesty and the word, gesture or act intended to insult the modesty of a woman. If there is any violations on women with regard to her modesty, the above sections will strictly apply and criminal proceedings will follow immediately on a complaint made to the nearest police station. The offences under section 509 are cognizable and are non-bailable.
Sec.354: Assault or criminal force to woman with intent to outrage her modesty.
Whoever assaults or uses criminal force to any
woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may be extend to two years or with fine or with both. 8 7 8
Prof. M P Jain, Indian Constitutional Law, (2006) P.279 B.M.Gandhi, Indian Penal Code, (2006), P.510
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Sec 509: Word, gesture or act intended to insult the modesty of a woman. Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to one year; or with fine or with both. 9
WOMEN COMMISSIONS
Apart from this, if a woman faces any kind of sexual harassment at workplace can directly make a complaint to the State Women Commissions or National Commission for Women. The Women Commission will follow-up the complaints, informs to concerned police stations to initiate criminal proceedings and directs the employer to conduct an enquiry and recommend to suspend the concerned harasser with an immediate effect pending enquiry.
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I.d, P.735
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The victim of sexual harassment
can claim
damages/compensation on concerned harasser by way of filing a civil suit under civil jurisdiction.
CASE STUDY
The Supreme Court of India for the first time in Vishaka and others Vs. State of Rajasthan and others, 10 dealt with sexual harassment on women. The Supreme Court made the definition of sexual harassment and laid down certain guidelines. It also specified the duties of the employer, preventive steps, awareness of the rights of female employees and workers initiative to curb sexual harassment at work place.
Supreme Court said that, it shall be the duty of the employer or other responsible persons in workplaces or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps 10
1997 (6) SCC 241
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required.
For the purpose of definition of sexual harassment the Supreme Court said that, the sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) 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;
The Supreme Court in absence of any enacted law to provide for effective enforcement of basic human rights of gender equality and guarantee against sexual harassement, laid down the following guidelines:
1. All the employers in charge of workplace whether in the
public or the private sector, should take appropriate steps to
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prevent sexual harassement without prejudice to the generality of his obligation, should take the following steps:
a) Express prohibition of sexual harassment which includes physical contact and advances, a demand or request for
sexual favours, sexually coloured
remarks, showing pornographic or any
other
unwelcome physical, verbal/non-verbal conduct of sexual nature should be noticed, published and circulated in appropriate ways. b) The rules and regulations of government and public sector bodies relating to conduct and discipline should include rules prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender. c) Appropriate work conditions should be provided in
respect of work leisure, health and hygiene, to further ensure that there is no hostile environment towards women and no women should have
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reasonable
grounds
to
believe
that
she
is
disadvantaged in connection with her employment.
2. Where such conduct amounts to specific offences Under the Indian Penal Code or any other law the employer shall initiate appropriate action in accordance with the law, by making a complaint with the appropriate authority.
3. Victims of sexual harassment should have the option to Seek transfer of the perpetrator or their own transfer. 11
These guidelines are applicable to:
a) The
employer or other responsible persons or other
institutions to prevent sexual harassment and to provide procedures for the resolution of complaints. 11
Supra n10, P.11
15 b) Women who either draw a regular salary, receive an
honorarium, or work in a voluntary capacity in the government, private or organized sector come under the purview of these guidelines.
Preventive Steps:
1.
Express
prohibition
of sexual harassment
should be notified and circulated. 2.
Inclusion of prohibition of sexual harassment in
the rules and regulations of government and public sector. 3. Inclusion of prohibition of sexual harassment in the standing Orders under the Industrial Employment (Standing Orders) Act, 1946 by the private employers.
4. Provision should be made for appropriate work conditions for women.12
12
Dr. S.C. Tripathi & Visha Arora, Law Relating to Women & Children, (2006), PP.22-25
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Procedure pertaining to filing of complaints:
1. Employers must provide a Complaints Committee which is to be headed by a woman, of which half members should be women. 2. Complaints Committee should also include an NGO or other Organization, which is familiar with matters of sexual harassment. 3. Complaints procedure should be time bound. 4. Confidentiality of the complaints procedure has to be maintained. 5. Complainant
or witnesses should not be victimized or
discriminated against, while dealing with complaints.
6. The Committee should make an annual report to the concerned
Government department and also inform of the action, if any taken so far by them. 13
Miscellaneous Provisions: 13
Ibid.
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1. Guidelines should be prominently notified to create awareness as regards the rights of the female employees. 2. The employers should assist the persons affected, in cases of Sexual harassment by outsiders or third parties. 3. Sexual harassment should be discussed at worker’s meetings, employer-employee meetings and at other appropriate forums. 4. Both Central and State governments are required to adopt Measures including legislations to ensure that private employers also observe these guidelines.
The Supreme Court of India rendered yet another Judgment on sexual harassment in AEPC Vs. A.K. Chopra 14.
The chairman challenged the disciplinary committee order in Delhi High Court and the harasser was successful on the ground that the chairman only 'tried to molest' but did not 'in fact molest' 14
1999 (1) SCC 759. The case is about a woman employee of Apparel Export Promotion Council, who worked as the private secretary to A.K.Chopra, the Chairman of the company. She complained to the personnel Director that the chairman was sexually harassing her. Despite her repeated protests, he was making sexual advances by ‘trying to touch her’ and ‘sit close to her’. The company immediately suspended him and ordered a departmental enquiry. The enquiry confirmed female employee’s position that the chairman tried to touch her with a sexual motive and the chairman was dismissed from service.
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the female employee. By shocking with the verdict, the company filed appeal before the same High Court which was heard by Division Bench (two member Bench). Interestingly, the Division Bench agreed with the findings of single judge and reiterated that the chairman not 'actually molested' the female employee.
As against the Judgment, the company once again filed an appeal in the Supreme Court. One of the issues that was deliberated at length by this court was “whether physical contact with the woman was an essential ingredient of a charge of sexual harassment.”
The Supreme Court while setting aside the High Court and upholding the dismissal of chairman held that:
a) The attempts by the superior to sit close to the female employee and touch her, though unsuccessful, would amount to 'sexual
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harassment'. The behaviour of the superior did not cease to be outrageous in the absence of an actual assault by the superior.
b) In the context of a female employee the sexual harassment at the work place is a form of sex discrimination which any be projected through unwelcome sexual advances, request for sexual favours and other verbal or physical conduct with sexual overtones, whether directly or by implication. This would be particularly so when submission or rejection of such conduct by the female employee could be used to affect her employment by unreasonably interfering with her work performance thereby, creating a hostile working atmosphere for her.
c) Where the conduct of a superior towards his junior female employee was wholly against moral sanctions and was offensive to her modesty, any lenient action would demoralise working women. Therefore, the punishment of dismissal from service was commensurate with the gravity of the superior's behaviour.
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d) Each incident of sexual harassment at workplace violates the fundamental right to gender equality and the right to life and liberty guaranteed by the constitution of India. The fundamental right in the Constitution cover all facts of gender equality including prevention of sexual harassment and abuse. The courts are under a constitutional obligation to protect and preserve those rights.
e) International instruments 15, cast an obligation on the Indian Government to senitise its laws. The courts are under an obligation to see that this message is accepted and followed.
CODE OF CONDUCT FOR WORKPLACE BY NCW
Sexual harassment is a serious criminal offense which can destroy human dignity and freedom. In an effort to promote the well being of all woman employees at the work place the following code of conduct has been prescribed :15
Convention on Prevention of All forms of Discrimination Against Women, Beijing Declaration on Women, International Covenant on Economic, Social and Cultural Rights
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1. It shall be duty of the employer to prevent or deter the commission of any act of sexual harassment at the work place. 2. Sexual harassment will include such unwelcome sexually determined behaviour by any person either individually or in association with other persons or by any person in authority whether directly or by implication such as :(i) Eve-teasing (ii) Unsavoury remarks (iii) Jokes causing or likely to cause awkwardness or embarrassment (iv) Innuendos and taunts
(v) Gender based insults or sexist remarks (vi) Unwelcome sexual overtone in any manner such as over telephone. (vii) Touching or brusing against any part of the body and the like (viii) Displaying pornographic or other offensive or derogatory pictures, cartoons, pamphlets or sayings. (ix) Forcible physical touch or molestation
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(x) Physical confinement against ones will and any other act likely to violate ones privacy and includes any act or conduct by a person in authority and belonging to one sex which denies or would deny equal opportunity in pursuit of career development or otherwise making the environment at the work place hostile or intimidating to person belonging to the other sex, only on the ground of sex.
It is an amazing truth that years after an established tradition of Indian working women their harassment at place of work is so common. There are about 10 million women who have entered all fields from medicine to politics to pioloting, yet nearly all faces the same problem .16
RIGHT AGAINST SEXUAL HARASSMENT
One of the evils of the modern society is the Sexual harassment caused to the women particularly the working women by their male counterparts and other members of the society. There is no law in India, which is adequate to combat the evil of sexual harassment. In Vishaka and
16
Shobna Saxena, Crime Against Women and Protective Laws, (1999), P.230
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others v. State of Rajasthan,17 a Public Interest Litigation filed before the apex court emphasized the need for an effective legislation in India to curb the sexual harassment of working women and held that each incident of sexual harassment of women at the work place is a violation of the right of life under Article 21, which implies right to dignity. 18
SEXUAL HARASSMENT UNDER HUMAN RIGHTS
Sexual harassment and sex discrimination are considered to be violation of Human Rights. All human rights derive from the dignity and worth inherent in the human person and the human person is the cultural subject of Human Rights and Fundamental Freedoms.
The United Nations Organisation (UNO), keeping with its charter to promote and encourage respect of Human Rights and Fundamental Freedoms for all without distinction, came out with an International Bill of Human Rights consisting of: 17. 18
Supra n.10, P.11 AIR - FEB 2009 – Journal section
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(a) Universal Declaration of Human Right, 1948. (b) The International covenant on civil and Political Rights, 1966. (c) The International covenant of Economic, Social and Cultural Rights, 1966.
and
(d) The Optional protocol, 1966 providing for the right of the Individual to petition International Agencies. 19
The U.N.O. held that all human rights and fundamental freedoms are indivisible and interdependent; equal attention and urgent consideration should be given to the implementation, promotion and protection of all human rights. The following are the principles on which the above charters were introduced.
1) All Human beings, without distinction, have been brought within the scope of human right instruments. 2) Equality of application without distinction of race, sex, language or Religion, and 3) Emphasis on international co-operation for implementation. 19
K.C.Joshi, International Law & Human Rights, (2006), PP.310-322
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Article 120, 221 and 722 of Universal Declaration of Human Rights, 1948 deals with equality in dignity, rights and freedoms and equal protection against any discrimination.
Part II of Article 2 (2) and 3 of International covenant on Economic, Social and Cultural Rights, 1966 also deals with discrimination of any kind and equal right of men and women.
Article 2 (2): The State Parties to the present covenant undertake to guarantee that rights enunciated in the present covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. 23 20
All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. 21 Everyone is entitled to all the rights and freedoms ser forth in this declaration, without distinction of any kind such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. 22 All are entitled to equal protection against any discrimination in violation of this Declaration against incitement to such discrimination. 23 Ian Brownlie, Guy S. Goodwin – Gill, Basic Documents on Human Rights, (2007), P.349
26
Article 3: The State Parties to the present covenant undertake to ensure the equal right of men and women to the enjoyment of all Economic, Social and Cultural Rights set forth in the present covenant.24
24
Ibid.
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CHAPTER - III RESEARCH METHODOLOGY
RESEARCH DESIGN
Research Design is the way in which I did the study. The study is both a combination of doctrinal and non doctrinal one. The doctrinal part deals with the detailed study of case laws by the Supreme Court of India and also the guide lines put forward by the Supreme Court.
Presently there is no law dealing with sexual
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harassment of women at work place. A draft bill has been put in Parliament in 2006 and has been given for the recommendations of various women organizations.
Empirical study or Non Doctrinal study has been conducted in two ways, first by having an Interview schedule for interviewing officials and secondly having a questionnaire for collecting information from the working women.
UNIVERSE OF THE STUDY
The survey was conducted among working women, who are working both in government offices and private offices which also include women working in Techno Park, women working in shops, petrol pumps etc, in Thiruvananthapuram City.
SAMPLING
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A sample has been selected for the study. The women working in Thiruvananthapuram city has been taken as sample.
COLLECTION OF DATA
Data has been collected both from primary and secondary sources. Primary data has been collected directly from women employees working both in government and private work place and secondary data has been collected from the officials of Women’s Commission and Abhaya.
TIME FRAME
As the time period allotted for my study is 3 months, the study is confined to Thiruvananthapuram city and the women surveyed is confined to 100 including officials of Women’s Commission and Abhaya.
DATA ANALYSIS
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An Empirical study has been conducted among different strata of women working in Government and private employment which include, Techno Park, Trivandrum and also women working in various shops and petrol pumps. The analysis of data is given below.
1. During the survey 75% of working women held that there is Sexual harassment at work place and 25%were of the opinion that there is no such harassment.
Diagram 1
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75% held that there is sexual harassment ande 25% held no harassment
25%
75%
2. The response for whether they face any harassment at work place, 60% had faced work place harassment and 40% never faced workplace harassment.
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Diagram. 2 60% women faced harassment & 40% never faced harassment
40%
60%
3.
As the response for complaining about Sexual harassment, 12%
complaint about sexual harassment and 88% never complaint the matter. Diagram 3.
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12% complaint about sexual harassment &88% never complaint
12%
88%
4. As the response in the matter of complaining about 78% where in favour of complaining to Women’s Commission. Only 12% where in favour of complaining to higher officials in their office and only 10% feels, it is apt to approach the police.
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Diagram 4. 78% where in favour of complaining to Women's Commission 12% to senior officials in their office and 10% to police.
10%
12%
78%
5.
The response for the awareness about guide lines and preventive
measures put forward by the Supreme Court in Vishak’s Case, about 95% where unaware of such rulings and only 5% heard about it. Diagram 5.
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95% unaware and 5% aware of Supreme Court guide lines and preventive measures
5%
95%
6. As the response for trusting the authorities, when complaining they will take necessary action, about 77% trust in the authorities and 23% where of the opinion that complaining is of no use. Diagram.6
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77% had faith in authorities and 23% do not have faith
23%
77%
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CHAPTER- IV
FINDINGS
During the survey it is found that about 75% of women had faced the problem of sexual harassment at work place, and 25% opined that there is no such harassment.
When enquired about incidents of personal
experience of work place harassment, about 60% of working women faced
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the problem. Only 40% had opined that they had never faced any such hardship.
When enquired whether they complained about sexual harassment in workplace, only 12% complained about sexual harassment and remaining 88% never complained it. When asked, if they face such problem to whom they want to approach, 78% held that they will complain only to Women’s Commission, about 12 % held that they will complain to senior officials, and only 10% where of the view that they will go to the police.
When we came to awareness of women in matters of guidelines and preventive measures put forward by Supreme Court in Vishaka’s case, only 5% heard about it and 95% where unaware of such rulings.
About 60% had trust and faith in the authorities in handling sexual harassment in work place, only 20% opined that they do not trust the authorities.
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From the survey it is clear that almost every working women face the problem of work place sexual harassment. Another thing to note is that, they want Women Commission to deal with this problem, they do not want the police to interfere in this. Women are unaware of the guidelines or preventive measures by Supreme Court.
CONCLUTIONS AND SUGGESTIONS
My study put light to the fact that women in this modern society are facing the problem of sexual harassment at her work place. This problem is made to her by her counterpart ‘Man’. In order to curb this
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evil we should train him from his childhood.
We should give
opportunities for them to cooperate and mingle in every aspect of life. We should not encourage separate schools or colleges for boys or girls. They should learn to leave and work in an environment of equality and they should not feel the difference between sexes. You feel this as an utopian idea, but we should strive for it.
In the above circumstances I would like to put forward the following suggestions.
1. It is impossible to have a women grievance cell in every office and to monitor its working. So it is better to give Women’s Commission the sole power of dealing with women’s grievance. It should be given good building, more power and qualified persons in dealing with problem relating to women.
2. Police should not be allowed to investigate work place sexual harassment, because it further leads to more harassment. Women’s Commission should be the sole agency dealing with workplace sexual harassment.
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3. Women should be given awareness about workplace harassment and also about agencies dealing with these problems. Men were also given awareness about the consequences of sexual harassment at work place.
BIBLIOGRAPHY BOOKS
Prof. M.P.Jain, (2006), Indian Constitutional Law, Wadhwa and Company Nagpur, Publishers. Dr. Mamta Rao, (2005), Law Relating to Women and Children.
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K.C.Joshi, (2006), International Law & Human Rights, Eastern Book Company. B.M.Gandhi, (2006), Indian Penal Code. Dr. S.C.Tripathi & Visha Arora, (2006), Law Relating to Women and Children. Shohna Saxena, (1999), Crime Against Women and Protective Laws. A.N.Sen, (2005), Human Rights, Sri Sai Law Publications, Haryana. P.M.Bakshi, (2009), The Constitution of India, Universal Law Publication Co.Delhi. Dr. U.Chandra, (2005), Human Rights, Allahabad Law Agency Publications, Allahabad. J.N.Pandey, (2009), The Constitutional Law of India, Central Law Agency, Allahabad.
Appendix I INTERVIEW SCHEDULE
INTERVIEW WITH THE OFFICIALS
1. Name.
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2. Designation.
1. Whether women have complaint about Sexual Harassment at work
place? 2. How many complaints pertaining to Sexual Harassment at work place have been reported during the year 2008? 3. Do you think women are Sexually Harassed at her work place? 4. Sir, in your opinion why women are not complaining about Sexual
Harassment at work place? 5. Do you think that working women are aware of existing safeguards against Harassment of women at work place? 6. Do you think that Government is active enough to fulfill their
obligations, which was put forth by the Supreme Court in Vishaka case?
Appendix II QUESTIONNAIRE
FOR WORKING WOMEN 1. Name. 2. Designation.
3. Organization.
