By Amrit Raj

Introduction

Judiciary is undoubtedly the final bastion of the essential principles of the Constitution namely, social, economic, and political justice. One of the unique features of our Constitution is, its goal to make India a ‘welfare state’, i.e., making the laws of the country society-oriented. In protecting the above principle, the Indian Judiciary has adopted an activist approach, while interpreting the laws, which has ultimately led to a huge social transformation.   

One such landmark transformation that has originated through this activist approach is the law on sexual harassment at the workplace, which will be discussed in detail in this blog.

Development of the law

The advent of globalization brought new hopes of earning a living not only for men but also for women. The economic development opened new arenas to women in the organized sector. However, new prospects brought new difficulties and one of the many evils which women faced was the evil of sexual harassment at the workplace. The scenario of law concerning protection of women against the same. Pre-Vishkha case scenario and Post-Vishkha case scenario will be discussed in the following section.

Pre-Vishaka Scenario

Initially, India did not have any such concept of sexual harassment at the workplace. Although, certain laws pre-existed before this concept came into light. Some of them were outraging the modesty of women^[1], rape^[2] , etc. Most of the complaints regarding sexual harassment either fell under these heads or were left remedied due to a lack of proper legislation.

One ground-breaking verdict that paved way for the famous Vishaka judgment was Mrs. Rupan Deol Bajaj v. Kanvar Pal Singh Gill^[3]also known as the ‘bottom-slapping case’ wherein the Hon’ble Apex Court interpreted the word ‘modesty’ and expanded its scope. The court keeping into consideration the social standards of women’s dignity held that the act of slapping the bottom of a woman amounted to outraging her modesty.

Vishaka Judgment

The landmark case of Vishaka v. State of Rajasthan^[4]was the first verdict to recognize the concept of sexual harassment at the workplace. The facts of the case were related to the gang rape of Bhanwari Devi while she was working in the fields with her husband. The trial court acquitted all the five accused due to lack of evidence which led to a huge backlash from the countrymen. Ultimately, a writ of mandamus was filed by an NGO named Vishaka concerning this case.

The Petitioner highlighted the lacunae of the existing legislation in India relating to the safety of women. They argued that the indecent acts towards women in their workplace amounted to the violation of fundamental rights of equality (14,15), privacy (21), and trade and profession (19(1)(g)).

The Court recognized the lacunae in the Indian legislation and defined ‘sexual harassment’ as “such unwelcome sexually determined behavior (whether directly or by implication) as (i) physical contact and advances; (ii) demand or request for sexual favors; (iii) sexually colored remarks; (v) showing pornography or (vi) any other unwelcome physical, verbal or non-verbal conduct of sexual nature.”^[5] It is pertinent to note here that this definition was later adopted by the legislature in 2013 by adding Section 354 A^[6], which defined sexual harassment. The court not only defined the term but due to lack of proper mechanism referred to various conventions including CEDAW^[7] to lay down a proper mechanism to deal with such cases which are famously known as the ‘Vishaka guidelines’^[8].

The guidelines included the redressal mechanism, formation of committees, and measures for the prevention of sexual harassment.

Post Vishaka Judgment

After these detailed guidelines were framed in the Vishaka^[9] judgment, a catena of judgments followed these guidelines and highlighted the need for a sexual harassment law in India quoting it to be gender-based discrimination. Saudi Arabian Airlines, Mumbai v. Shehnaz Mudbhalkal^[10]was the first case won by a female employee in a labor court on the ground of sexual harassment. The Apex Court in Medha Kotwal Lele and Ors v. UOI^[11]criticized the government for the non-implementation of Vishaka guidelines in all states.

The government in 2013 after a huge delay of almost 13 years enacted the “Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013” ^[12] i.e., POSH Act to implement the Vishaka guidelines in its true letter and spirit.

Interpretation of POSH Act

The Hon’ble Delhi High Court in Shanta Kumar case^[13]held that sexual harassment under the Act means physical contact bearing sexual undertone. A mere unwelcoming environment at the workplace does not amount to an offense under this Act.

Also, the Kerela High Court in the K.P. Anil Rajagopal case^[14]ruled that for constituting an offense under this Act the act must have some connection to sexual harassment and mere use of immoderate language is no offense. Various other cases have helped to clarify the position of the POSH Act.^[15]

Critical Analysis & Conclusion

It is pertinent to note that despite the enactment of the POSH Act the cases of sexual harassment continue to increase. The problem lies with the implementation of the Act. The role of the judiciary has been very instrumental in interpreting and evolving the law of sexual harassment in India. The evolution of the law on sexual harassment is a glaring example of judicial activism in India. However, to achieve the objective of prevention of sexual harassment strict compliance to the provisions of the POSH Act^[16] is the need of the hour.  

---

^[1] The Indian Penal Code (Act 45 of 1860) s. 354.

^[2] The Indian Penal Code (Act 45 of 1860) s. 376.

^[3]  AIR 1996 SC 309.

^[4] AIR 1997 SC 3011.

^[5] Supra 4.

^[6] The Indian Penal Code (Act 45 of 1860) s. 354 A.

^[7] UN General Assembly, Convention on the Elimination of All Forms of Discrimination against Women, 18 December 1979, United Nations, Treaty Series, vol. 1249 p. 13.

^[8] Supra 4.

^[9] AIR 1997 SC 3011.

^[10] LLJ 1999 BOM 109.

^[11] INSC 2012 SC 643.

^[12] Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (Act 14 of 2013).

^[13] Shanta Kumar v. Council of Scientific and Industrial Research (CDIR) & Ors, FLR 2018 DH 719.

^[14] K.P. Anil Rajagopal v. State of Kerela, KLJ 2018 KH 106.

^[15] Supra 11.

^[16] Supra 11.

Visit us https://lawogs.co.in

Join Telegram: https://t.me/lawogs