Delhi HC Imposes Rs. 50,000 Cost On Woman For False Sexual Harassment Plea

It is most heart warming to note that Delhi High Court in a latest, landmark and extremely laudable judgment titled Anita Suresh vs. Union of India & Ors in W.P.(C) 5114/2015 delivered on July 9, 2019 has rightly gone the extra mile and imposed Rs. 50,000 cost on a woman for false sexual harassment plea. The blatant misuse of laws against men is all too well known even though much as woman activists among others would like to gloss it over on one ground or the other! But this latest extraordinary judgment has served to send a very loud and stern message to all women that they dare not try to misuse laws against men without any valid cause and if they dare to do so then they should be prepared to face the music and cough up a huge amount as fine! From now onwards, women must always ensure before approaching courts that their own hands are clean and if they still don’t care then well they might find themselves landing in a hot soup as we see has happened with the petitioner in this commendable case!

                               To start with, the ball is set rolling in para 1 of this notable judgment by Justice JR Midha of the Delhi High Court wherein it is pointed out that, “The petitioner has challenged the order dated 20th January, 2012 of the Internal Complaints Committee (ICC). The petitioner is seeking a direction to respondent No. 2 to withhold the retirement benefits of respondent No. 3 to initiate independent departmental enquiry against respondent No. 3 and to also prosecute respondent No. 3.”

                            To recapitulate, it is then outlined in para 2 that, “The petitioner was working as an Assistant Director with ESI Corporation in Manesar, Gurgaon in July 2011. On 08th July, 2011, the petitioner made a written complaint to the Director General of ESI Corporation alleging sexual harassment by respondent No. 3. According to the petitioner, respondent No. 3 misbehaved and made attempts of sexual advances. The petitioner reported following two incidents dated 07th July, 2011 in the complaint:-

(i)                         ‘Yesterday when I was seated with my colleagues on the 1st floor of the building, Sh. Verma came and commented indicating sexual advances. I cannot for the reasons of modesty bring on papers the filthy language he uses for me’.

(ii)                      ‘Yesterday in the presence of my staff and other members he asked me to come alone to check the shortcomings of the male toilet when nobody is there and I will follow you soon’.”

                                                 To be sure, para 3 then states that, “Respondent No. 1 constituted an Internal Complaints Committee to examine the complaint of the petitioner. Respondent No. 3 appeared before the Committee and denied all the allegations made by the petitioner. According to respondent No. 3, the petitioner made the complaint because of the grudge against him due to certain official work disposed by him in her absence.” Para 4 then reveals that, “The Committee examined the petitioner as well as respondent No. 3. The Committee examined eight witnesses namely Rashmi Kapoor (O.S.), Lakhan (Supervisor Housekeeping), Rajender Yadav (SSO), Prasanna (Staff Nurse), Hema (Staff Nurse), Pradeep Kataria (Nursing Orderly), Jai Bhagwan (Nursing Orderly) and Kalpana (Dietician).”

                                     Be it noted, para 5 then envisages that, “The Committee submitted its report on 20th January, 2012, in which it observed that the exact content of communication of the incident dated 07th July, 2011 could not be established. The Committee gave benefit of doubt to respondent No. 3 and recommended relocating both the petitioner and respondent No. 3 from their present posting.”

                                     Needless to say, para 6 then brings out that, “Learned counsel for the petitioner urged at the time of the hearing that the findings of the Committee are erroneous and unjustified. It is submitted that the petitioner had proved by sufficient evidence that respondent No. 3 misbehaved and made attempts of sexual advances against the petitioner on 07th July, 2011 mentioned in the written complaint on 08th July, 2011. Respondent No. 3 pressurized the petitioners to withdraw her complaint whereupon a warning was issued to him on 04th November, 2011. The transfer of both the parties to different places was not a justified penalty to the respondent No. 3.”

                                  As things stand, para 7 then discloses that, “Learned counsel for the respondent No. 1 urged at the time of the hearing that respondent No. 1 transferred both the petitioner and the respondent No. 3 from their posting. It was further submitted that respondent No. 3 superannuated on 28th February, 2015.”

                            Furthermore, it is then disclosed in para 8 that, “Vide order dated 28th March, 2019, this Court directed the employer, ESI Corporation to produce the original relevant records which were produced on 09th April, 2019 and have been examined by this Court.”

                              Moving on, it is then illustrated in para 9 that, “The petitioner made the complaint dated 08th July, 2011 against the respondent no. 3 which is reproduced hereunder:-

‘To,

The Director General,

ESI Corporation,

Hqrs. Office, CIG Marg,

New Delhi – 02.

   Sub: Sexual harassment by Sh. O.P. Verma, Dy Director, ESI Hospital, Manesar, Haryana.

Sir,

         I am posted as Assistant Director in the office of ESI Hospital, Manesar. In the same office another officer Sh. O.P. Verma, Dy. Director is seated in the adjoining room where I work. For some time passed Sh. O.P. Verma has been misbehaving with me and makes attempts of sexual advances. It was only yesterday when I was seated with my colleagues on the 1st floor of the building. Sh. Verma came and commented indicating sexual advances.

        I cannot for the reasons of modesty bring on papers the filthy language he uses for me. Yesterday in the presence of my staff and other members he asked me to come alone to check the shortcomings of the male toilet when nobody is there and I will follow you soon.

       I am to request you to safeguard my honour and take necessary action against him. I will explain the earlier instances of harassment as and when the matter will be investigated.

           This matter has also been brought to the notice of the Medical Superintendent in earlier and in the afternoon of 07.07.2011 also.

                                                       Yours faithfully,                                                                                  Signed/-

                                                    ( Anita Suresh)

                                                Assistant Director

                                              ESI Hospital, Manesar.’”

                                To say the least, para 10 then states that, “As per the complaint dated 08th July, 2011 of the petitioner, the respondent no. 3 made comments indicating sexual advances against the petitioner who was sitting with her colleagues on the first floor of the building on 7th July, 2011. The second incident mentioned in the complaint is that the respondent told the petitioner to come alone in the male toilet to check the shortcomings in the presence of the staff and other members.

                            More significantly, para 11 then discloses that, “The Committee examined the petitioner who could not recollect the names of any of the persons present at the time of the aforesaid incidents. The petitioner was shown the relevant papers relating to the staff members present on that day but still she could not recollect the names. The petitioner stated that she confided the incidents to Rashmi Kapoor (O.S.) on the same day after the incident. The Committee examined Rashmi Kapoor who stated that she was not present at the time of incident. However, she stated that the petitioner told her that the attitude of respondent No. 3 towards the petitioner was not good. She further stated that the petitioner told her that respondent No. 3 made two inappropriate comments against her. However, these two comments were not stated by the petitioner in her statement to the Committee.

                                   What’s more, para 12 then points out that, “The Committee examined Lakhan (Supervisor Housekeeping) who stated that the petitioner was matching the goods with the list and he did not witness any incident on 07th July, 2011 as alleged by the petitioner.” Also, para 13 then reveals that, “The Committee examined Rajender Yadav (SSO) who was present at the time of incident and he stated that there was no altercation between the petitioner and respondent No. 3.” All this certainly serves to weaken the petitioner’s claims and the serious charges which she leveled against the respondent No. 3.

                                   Going forward, para 14 then further discloses that, “The Committee examined Prasanna (Staff Nurse) who stated that the petitioner had normal relations with respondent No. 3 who never commented on her in her presence.” Para 15 then also makes it clear that, “The Committee examined Staff Nurses Hema (Nursing Orderly), Pradeep Kataria (Nursing Orderly), Jai Bhagwan (Nursing Orderly) and Kalpana (Dietician) who did not witness any incident on 07th July, 2011.”

                                  Not stopping here, it is then brought out in para 16 that, “The Committee examined respondent No. 3 who denied all the allegations of sexual harassment made by the petitioner. He stated that he brought the absence of soap in the male toilet to the notice of the petitioner. He further stated that his remarks were misinterpreted and taken totally out of context. He further stated that the petitioner made complaint against him due to a grudge which was the result of certain official work disposed by him in petitioner’s absence.”

                                To put things in perspective, para 17 then enunciates that, “On careful consideration of the record of the inquiry proceedings, this Court is of the view that the complaint dated 08th July, 2011 of the petitioner appears to be false. The complaint dated 08thJuly, 2011 contains two incidents out of which the first incident was in the presence of the staff and other members. During the inquiry proceedings, the petitioner could not give the name of any person present at the time of the incident. The petitioner was shown the record of the staff persons present on duty on the date of the incident but still she could not recollect the names of any colleague/staff member. It is not believable that the petitioner would not remember the names of any colleague/staff member. The Committee examined all the persons who were on duty on that day but no persons supported the allegations of the petitioner. The petitioner has not mentioned the alleged comments of respondent No. 3 in the complaint on the ground of modesty. The petitioner did not even disclose the alleged comments before the Committee. Nor reason or justification was been given by the petitioner for not disclosing the same before the Committee. The entire complaint of the petitioner appears to be false and has been filed with some ulterior motive.”

                           It cannot be lost on us that delving deeper, para 18 then brings to light that, “The record produced by the respondent No. 5 contains the service record of the petitioner. The petitioner joined ESI Corporation as an Insurance Inspector on 24thSeptember, 1997. On 15th February, 1998, the petitioner was issued a charge sheet for major penalty proceeding for negligently surveying two firms ignoring vital information and suppressing material information while submitting the survey reports. Vide order dated 23rdOctober, 2001, the Insurance Commissioner took the view that the petitioner had only put one year of service in the Corporation and no malafide intention was proved and therefore, a lenient view was taken and the penalty of ‘Censure’ was imposed upon her. On 03rd March, 2006, the petitioner was issued a charge sheet for major penalty proceeding by Regional Office, Delhi on the allegations that during her posting in Legal Branch as an Insurance Inspector for the period from 22nd March, 2004 to 12th July, 2004, the petitioner had exhibited gross misconduct as she failed to follow the reasonable order of her superiors and exhibited lack of devotion towards duty. Vide order dated 22nd September, 2009, the Insurance Commissioner observed that the conduct of the petitioner was unbecoming of a Corporation employee and imposed the penalty of reduction pay by one stage for one year. The petitioner filed an appeal which was rejected by the Appellate Authority vide order dated 27th October, 2010 and thereafter, she preferred a revision petition which was also rejected. This rejection order was further challenged by the petitioner before this Court in W.P. (C) 8529/2011 which was dismissed by this Court vide order dated 24th November, 2011. On 13thJuly, 2011, the Medical Superintendent of ESIC, Hospital, Manesar, Haryana, Dr. Archana Rani gave a written memorandum to the petitioner who was posted in the hospital as an Assistant Director to show cause as to why the action should not be taken against her for insubordination and gross misconduct. The above mentioned incidents show that the petitioner did not have a clean service record.”

                               Most importantly, it is then held in para 19 that, “There is no merit in this writ petition which is dismissed with cost of Rs. 50,000/- to be deposited by the petitioner with the Delhi High Court Advocates Welfare Trust within four weeks.” Thus we see that all the tall claims made by the petitioner falls flat and fails to impress the Delhi High Court as she could not produce anything substantial to back her tall claims against the respondent No. 3! This alone explains why it is then ruled in the next para 20 that, “Respondent No. 2 is at liberty to initiate appropriate action against the petitioner for filing false complaint against the respondent No. 3 in accordance with law.”

                                      To conclude, the Delhi High Court has acted most wisely by deciding to not allow the petitioner to go scot free. She willingly decided to defame the respondent No. 3 without any concrete ground in front of the whole society. So she had to be taken to task for it! This alone explains why the Delhi High Court imposed Rs 50,000 cost on petitioner for false sexual harassment plea. Very rightly so! Not just this, she should be jailed also for at least six months or an year so that the right message goes across to all women that they dare not misuse the sexual harassment laws against men whenever they want at their own whims and fancies! We all saw how recently even the incumbent CJI Ranjan Gogoi was not spared when a subordinate women employee levelled grave charges but failed to prove anything in front of the in-house Committee set up by the Supreme Court under the chairmanship of Justice Sharad A Bobde and so palapably the CJI Ranjan Gogoi had to be exonerated! Law must apply to erring women also now! This is what the Delhi High Court has rightly sought to do here! No denying or disputing it!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

Sexual Harassment of Women at Workplace

INTRODUCTION:
Sexual Harassment is behavior. It is defined as an unwelcome behavior of sexual nature. Sexual harassment at workplace is a widespread problem in the world whether it be a developed nation or a developing nation or an underdeveloped nation, atrocities against women is common everywhere. It is a universal problem giving negative impact on both men and women. It is happening more with women gender in particular.
How much ever one try to protect, prohibit, prevent and give remedies such violation will always take place. It is a crime against women, who are considered to be the most vulnerable section of the society. That is why they have to suffer all these immunes starting from female feticide, human trafficking, stalking, sexual abuse, sexual harassment, to the most heinous crime Rape. It is unlawful to harass a person (an applicant or an employee) because of that person’s sex.
Harassment can include “sexual harassment” or unwelcome sexual advances, request for sexual favors, and other verbal or physical harassment of a sexual nature. Sexual Harassment is unwelcome sexual behavior, which could be expected to meet a person feel offended, humiliated or intimated. It can be physical, verbal and written.
Unwelcome Behavior is the critical word. Unwelcome does not mean “involuntary.” A victim may consent or agree to certain conduct and actively participate in it even though it is offensive and objectionable. Therefore, sexual conduct is unwelcome whenever the person subjected to it considers it unwelcome. Whether the person in fact welcomed a request for a date, sex-oriented comment, or joke depends on all the circumstances.

Sexual Harassment of Women at Workplace
Sexual Harassment of Women at Workplace

DEFINITIONS OF SEXUAL HARASSMENT OF WOMEN AT WORKPLACE
One of the difficulties is to understand this concept as it involves a range of behaviors, even the victims find it difficult to explain what they experienced. There have been efforts from both national and international level still there is no single definition which can define prohibited behavior.
The international instruments defines Sexual Harassment as “violence against women and discriminatory treatment which is a broad definition compared to the national laws. National laws focus on the illegal conduct more.
In general sense it is known as “unwelcome sexual favor and other verbal or physical conduct of a sexual nature that tends to create a hostile or offensive work environment”
The Supreme Court of India defined Sexual Harassment as any unwelcome sexually determined behavior (whether directly or by implication) such as;
1. Physical contact and advances,
2. A demand or request for sexual favors,
3. Sexually colored remarks,
4. Showing pornography,
5. Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
A key part of the definition is the use of the word unwelcome. Such unwelcome or uninvited conduct/act is totally prohibited. Sexual or romantic interaction between consenting people at work may be offensive to observers or may also lead to the violation of the workplace’s policy, but it is not sexual harassment.

SEXUAL HARASSMENT OF WOMEN AT WORKPLACE AS A PROBLEM:
Sexual Harassment is one of the biggest problems our women are facing today in different sectors of life. We rarely pass through a week without a reminder of these kinds of incidents which should be termed as “social problems”.
It is a growing problem and all are trying their best to combat this problem by adopting new policies and measures. The definition of sexual harassment varies from person to person and from jurisdiction to jurisdiction. The definition of Sexual Harassment in simple words is “any unwanted or inappropriate sexual attention. It includes touching, looks, comments, or gestures”.
A key part of Sexual Harassment is that it is one sided and unwanted. There is a great difference between Sexual Harassment and Romance and Friendship, since those are mutual feelings of two people. Often Sexual Harassment makes the victim feel guilty, but it is important for the victim to remember that it is not her fault; the fault lies totally on the person who is a harasser. Sexual Harassment affects all women in some form or the other. Lewd remarks, touching, wolf whistles, looks are part of any women’s life, so much so that it is dismissed as normal. Working women are no exception. In fact, working women most commonly face the backlash to women taking new roles, which belong to male domains within patriarchy. Sexual Harassment at work is an extension of violence in everyday life and is discriminatory, exploitative, thriving in the atmosphere of threat, terror and reprisal.
Many times fear is involved in Sexual Harassment because it isn’t physical attraction, it’s about power. In fact, many Sexual Harassment incidents take place when one person is in a position of power over the other; or when a woman has an untraditional job such as police officer, factory worker, business executive, or any other traditionally male job.
It has also been observed that there are lots of sexual harassment incidents taking place in the workplace, but the victims fear to report the same to the higher officials or the concerned authorities. They fear to file a complaint against such offenders who does such heinous acts. The fear is due to the fear of boss, fear of guilt in the society that they might have to face, fear of being thrown out of the job or being demoted, fear that it will jeopardize their career as in it will put a blot on their resume and would render them un-hirable. Some women have lack of knowledge- they do now know what exactly qualifies a sexual harassment and fail to report the same.
Every country is facing this problem daily. No female worker is safe and the sense of security is lacking in them. There are certain developments in laws of many countries to protect women workers from Sexual Harassment.
Sexual Harassment is major problem in school, college’s universities and institutions, and its percentage is increasing day by day. Surveys on college campus show the number of respondents reporting have been sexually harassed ranging from 40-70 percent. Only two percent of campus harassment involve a professor demanding sex in return for good grade. Most cases involve male and female students.
SAME SEX HARASSMENT:
Sexual harassment is usually associated making unwelcome or uninvited advances to another employee of opposite gender. For example a male employee sexually harassing a female employee or a female employee harassing a male employee. But in certain cases it is seen that an employee harasses another employee who is of same gender, i.e. male employee sexually harassing another male employee only or a female employee harassing another female employee. This is popularly called Same Sex Sexual harassment. Though the percentage of same sex harassment is quite less in number but it still takes place and such incidents cannot be overlooked but should be dealt in strict manner.
● The Supreme Judicial Court of Massachusetts, in Melnychenko V 84 Lumber Company concluded that same sex sexual harassment is prohibited under state law regardless of the sexual orientation of the parties.
● The Supreme Court held in Oricale v Sundowner Offshore Services, Inc that the title VII prohibits sexual harassment even when the harasser and target of harasser are of the same sex.
Sexual harassment includes many things:
●Actual or attempted rape or sexual assault:
● Unwanted deliberate touching, leaning over, cornering, or pinching.
●• Unwanted sexual teasing, jokes, remarks, or questions.
● Whistling at someone.
● Kissing sounds, howling, and smacking lips.
● Touching an employee’s clothing, hair, or body
● Touching or rubbing oneself sexually around another person.

Who is a Harasser and who is Harassed:
It is commonly thought that workplace sexual harassment is limited to interactions between male bosses and female subordinates. This is not true. In fact, sexual harassment can occur between any co-workers, including the following:
1. Subordinate harassment of a superior;
2. Men can be sexually harassed by women;
3. Same sex harassment- men can harass men; women can harass women;
4. Offenders can be supervisors, co-workers, or non-employees such as customers, vendors, and suppliers

FIELD AND AREAS PRONE TO SEXUAL HARASSMENT
As already told Sexual Harassment is an older and global phenomenon which crosses all the lines and the problem is very extensive and not only confined or reduced to bosses exploiting employees.
Perpetrators come from both private and government sectors, including third party perpetrators. The domains of perpetrators are companies, Schools, Hospitals, Institution, Universities and other entities where female employees are employed.
Many reported cases did not take advantage of Vishaka Guidelines to seek redress. The courts in many cases excused the employers from the liability saying the employers are not blamed for Sexual Harassment.
The inability to speak the incidents to the employers or head of the office had led to unreported cases of Sexual Harassment. Women felt guilty than angry the times they reported the instances, the experience due to the public relations to the sexual issues and their fear of getting justice.

HISTORY OF THE ACT
The problem of sexual harassment of women is not a new development, it has been a part in every women’s life an older phenomenon of showing the dominance of men in the society. Sexual harassment is one of those problems which play a bad role by discouraging women in taking active part in economic and social development. It is a demanding and offensive experience one employee can suffer and it is gaining recognition whether it be at workplace or an institution or at home.
Civil Society claims 70% of women have had sexual harassment experience.
Since the early 80’s sexual harassment at workplace has remained a main issue in India. In 1980’s the Forum Against Oppression of Women took action against the sexual harassment of nurses in public and private hospitals by doctors, patients and their male relatives, other staffs, teachers by colleagues principals, students by teachers, professors and other staff. But nothing stopped the women activists and social workers who tried to bring all cases to public and who also fought sexual harassment at the workplace. One such instance is Women’s voice (an NGO) in Goa mobilized which public opinion against the Chief Minister who allegedly harassed his secretary, through rallies demonstration till the CM was forced to resign.
After this incident again in 1990 the same women’s organization filed a PIL to bring amendments to the old rape law which defined rape in narrow sense.
For the first time in the history of the Indian Courts in 1997 the Supreme Court of India recognized sexual harassment at workplace as a violation of human rights but also as a personal injury to the affected woman.
The landmark case of Vishaka and others Vs. State of Rajasthan laid down guidelines for the preventing and redressel of the complaints by women who were sexually harassed at workplace. The Guidelines entrusted the Employer with the obligation to provide a safe and woman friendly environment.
Another case the Complaint was working in a Hyderabad based company and she was sexually harassed by her Supervisor. The case was investigated by a woman who was working in the head office of the Company. The charges were proved and the inquiry report was also submitted but what happened later was the Complainant was asked to resign from her job as she was identified as a trouble maker and the accused was allowed to continue with his job. No compensation was given to the Complainant.
From all these instances what we can infer is that the women often report the cases and the result was no action was taken, committee not constituted properly, judgments made in favor of the complainant but no strict action was taken against the perpetrator. In short what we understand is the guidelines redressel was not partial but the way it functioned was not impartial and very few women could effectively implement the guidelines to make the workplace gender equitable and safer.
Some noteworthy complaints of Sexual harassment at workplace that came into the National limelight were filed by:
1. Rupan Deo Bajaj, an IAS officer in Chandigarh, against ‘Super Cop’ K.P.S. Gill.
2. An activist from the All India Democratic Women’s Association, against the Environment Minister in Dehradoon.
3. An Airhostess against her colleague Mahesh Kumar Lala, in Mumbai.

PRE VISHAKHA SCENARIO
Before the Vishakha guidelines came into picture, the women had to take matter of Sexual Harassment at Workplace through lodging a complaint under Sec 354 and 509 of IPC.
Sexual Harassment was a serious issue and it still is, it was needed to be given priority and measures were decided to be taken to tackle this problem. Government, employers, employees, women organizations all were thinking how to eliminate this menace from the society.
Everybody wanted to prevent Sexual Harassment as prevention is the first step to prohibit or abolish any hazardous thing from the society. To achieve this, one needs legislation as a tool based on that the government and the organizations will be able to make strategies and policies to remove the issue.
As all know Sexual Harassment is universal problem which is kind of violence against women. International community has recognized in their international treaties and documents the free from Sexual Harassment as a human rights of women. All the legal instruments dealing with this matter have laid down protection of life and liberty and these instruments have been used as a source to prevent and address the issue.
In India till the Vishakha judgment came there was no law to govern this matter and the guidelines which came as an outcome of this case were derived from the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW). Even the Constitution of India had grounded provisions in the form of fundamental rights of life and liberty, the right against discrimination and the freedom to practice any trade or profession or to carry on any occupation.

VISHAKA GUIDELINES AGAINST SEXUAL HARASSMENT AT WORK PLACE
Guidelines and norms laid down by honorable Supreme Court in Vishaka and others vs. State of Rajasthan and others.
It is necessary and expedient for employers in work places as well as other responsible persons or institutions to observe certain guidelines to ensure the prevention of sexual harassment of women.
Duty of the employer or other responsible persons in work places and other institutions: It shall be the duty of the employer or other responsible persons in work places 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 required.

PREVENTIVE STEPS
All employers or persons in charge of work place whether in public or private sector should take appropriate steps to prevent sexual harassment. Without prejudice to the generality of this obligation they should take the following steps:
a. Express prohibition of sexual harassment as defined above at the work place should be notified, published and circulated in appropriate ways.
b. The rules 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. As regards private employers, steps should be taken to include the aforesaid prohibitions in the standing orders under the industrial employment (standing orders) act, 1946.
d. 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 at work places and no employee woman should have reasonable grounds to believe that she is disadvantaged in connection with her employment.

CRIMINAL PROCEEDINDS
Where such conduct amounts to a specific offence under the IPC or under any other law, the employer shall initiate appropriate action in accordance with law by making complaint with the appropriate authority.
In particular, it should ensure that victims or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment.
DISCIPLINARY ACTION
Where such conduct amounts to misconduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules.
COMPLAIN MECHANISM
Whether or not such conduct constitutes an offence under law or a breach of the service rules, and appropriate complaint mechanism should be created in the employer’s organization for redress of the complaint made by the victim.
Such complaint mechanism should ensure time bound treatment of complaints.

INTERNAL COMPLAINTS COMMITTEE
The complaint mechanism, referred to above, should be adequate to provide, where necessary, a complaints committee, a special counselor or other support service, including the maintenance of confidentiality.
The complaints committee should be headed by a woman and not less than half of its member should be women. Further, to prevent the possibility of any undue pressure or influence from senior levels, such complaints committee should involve a third party, either NGO or other body who is familiar with the issue of sexual harassment.
The complaint committee must make an annual report to the government department concerned of the complaints and action taken by them.
The employers and person in charge will also report on the compliance with the aforesaid guidelines including on the reports of the complaints committee to the government department.
WORKER’S INITIATIVE
Employees should be allowed to raise issues of sexual harassment at a workers’ meeting and in other appropriate forum and it should be affirmatively discussed in employer-employee meetings.
AWARENESS
Awareness of the rights of female employees in this regard should be created in particular by prominently notifying the guidelines (and appropriate legislation when enacted on the subject) in a suitable manner.
THIRD PARTY HARASSMENT
Where sexual harassment occurs as a result of an act or omission by any third party or outsider, the employer and person in charge will take all steps necessary and reasonable to assist the affected person in terms of support and preventive action.
The central/state governments are requested to consider adopting suitable measures including legislation to ensure that the guidelines laid down by this order are also observed by the employers in private sector.
These guidelines will not prejudice any rights available under the protection of human rights act, 1993
POST VISHAKHA SCENARIO
India did not have any legislation till the Bill for the protection of women from Sexual Harassment was moved in the Parliament in the year 2005. After a 10 long years gap in 2010, the Bill was in the Lok Sabha with slight changes in the old Bill. The new Bill defined “sexual harassment” and also provided for a redressal mechanism thorugh “internal Complaints Committee” in the workplace or “Local Complaints Committee” at the district level. There was a problem regarding the action to be taken against false and malicious charges or complaints, to solve this issue the Parliamentary Standing Committee in June 2011, submitted recommendations to remove false and malicious charges. Then the newer version of the Bill retained the action against false and malicious charges by ICC or Local Committee against the Complaint under section 14.
According to section 13 of the Bill there are two stages of enquiry, one is once the charges are found and proved the report of the same must be sent to the DC (Disciplinary Committee) and it will take action as per the service rules. This is again a time consuming process, where the victim has to produce the evidences again and go through cross examination, which is a kind of mental torture to the victim. The case may be different with a private sector then regarding the second process of enquiry, these stages or traditions are acting against the value Constitution of ICC.
In relation to this, the Apex Court in case of Medha Kotwal has clearly laid down that the report of the committee id final and the disciplinary committee is vested with the power to give punishment and to conduct second enquiry.
Till the new Act of 2013, came into effect; the problem of sexual harassment was governed by the guidelines laid down by the Vishakha case in the year 1997. The main objective of the Act was to implement the guidelines and to ensure an accessa safe workplace by woman

CURRENT INDIAN LAW ON SEXUAL HARASSMENT AGAINST WOMEN

To understand the whole jurisprudence on Sexual Harassment of Women at Workplace we need to step back to the landmark judgment of the honorable Supreme Court in Vishakha, in this case for the very first time in the definition of “Sexual Harassment” was laid down, it also acknowledged “Sexual Harassment at Workplace” to be a human rights violation and detailed guidelines were brought in.
Even after the Vishakha judgment came into force almost a decade ago, nothing was done to implement the guidelines there under; some women could effectively implement the guidelines to make the workplace friendly and gender equitable. Most of the public and private organizations have failed to follow the guidelines by setting up complains committees or change the service rules as required by the guidelines.
After many controversies and delays, a new development came up i.e. our Indian legislature passed the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, to provide protection for the working women against sexual harassment and also form a redressal mechanism complaint in this matter.

DEMERITS AND CRITICISM:
Like all other acts, this act is being highly criticized by women right activists and several NGO’s. The internal committee formed under this act has the power to decide a monetary fine which must be paid by the perpetrator, depending on their income and financial stability. This is a kind of discriminatory method, it supports and envisages inequality among different sections of the society, for example, a person earning low income would be paying a lower fine compared to a senior who earns more.
Other criticisms are that the Act does not cover the agricultural workers, armed forces (a sector which is heavily dominated by men). Enquiries in armed forces are done within the closed rooms which should be undone, and the armed forces women must be included into the scope and ambit of the Act as no interests or strategic matters are affected by protecting them against Sexual Harassment at Workplace. According to a few, this Act is gender biased and not all the gender neutral, “it is a discriminating Act” which protects only women and not men from Sexual Harassment at Workplace. The reason is that over the last years various recent studies and surveys have shown women’s involvement in acts of sexual harassment at workplaces. The research says that most of the cities in India are gender-neutral and women are dominating like men. According to the surveys, researches in practical circumstances and situations are totally different from what the legislators envisaged. Moreover, the Act lacks the mechanism to cope up with situations like men being sexually harassed.
Another disputable area under this Act is the wide scope for false allegations. Many are misusing the Act for their personal benefits, which lead to untrue allegations and unnecessary litigation. If a matter under this comes up before the complaint committee, it is not only affecting the reputation of the man falsely accused but also his family even though the Act is a great step forward for the protection of women from Sexual Harassment at Workplace.
FALSE COMPLAINTS AND CONSEQUENCES
According to the Act, if a complaint is made with malicious intent which substantiated then it shall attract to repercussions under Section 14 or if there is any false complaint backed with forged document then strict action will be taken according to the service rules of that organization. One of the flaws of this section is that there can be certain cases which cannot be proved sufficiently and then it becomes a frivolous complaint which can lead to the penalizing of women for the malicious and false complaints which again goes against the very objective of the Act.
Cancellation of the registration of the organization or entity results in punishment being doubled as revocation of license will inflict further injury to the business and also to the innocent parties who work in that establishment, so a fine should be imposed or prescribed in such cases.
In the end, if it is found that a person has filed a false complaint then the ICC will award the same punishment to the person who has filed the wrong complaint as per Rule 10 of the Rules.

 

INTERNAL COMPLAINTS COMMITTEE AND LOCAL COMPLAINTS COMMITTEE

● Every workplace must constitute an Internal Complaints Committee (ICC) headed by a senior-level woman employee. Details of the committee and members must be displayed at the workplace.
● The committee must have not less than two members from amongst employees who are committed to the cause of women, or have experience in social work or have a good legal knowledge. One member must be from an NGO or such Association. At least half of the committee must comprise women. In case of establishments with less than ten members and no complaints committee, the appropriate government must constitute a Local Complaints Committee in every district.
Who can file a Complaint :
● The complaint must be made in writing within 3 months of the incident. In case of series of incidents, report must be prepared within 3 months of last incident. The time limit can be extended to three more months on valid circumstances.
● At the complainants request, the committee can take steps to mediate a reconciliation before initiating an inquiry. The legal heir can make a complaint on behalf of the woman in case of physical/mental incapacity, death or otherwise.
● The complainant can ask for transfer (for herself or the respondent) 3 months leave or other relief during inquiry period.
● The inquiry should be completed within a period of 90 days from the day of complaint. Non- Compliance is punishable.

INTERNATIONAL ZONE
Sexual harassment of women is not only seen in India or few other selected countries but prevails all over the globe, be it a developed nation or developing nation or an underdeveloped nation. There are lots of strict laws and action taken against the offenders who indulge in such activities but yet the percentage of sexual harassment of women does not seem to decline even a bit. Everyday some or the other cases come forward where a women is being sexually harassed.
According to a survey majority of female Israel’s MPs faced sexual harassment. At least 28 out the Israeli parliament’s 32 female members have experienced sexual harassment or assault, and at least two of the cases took place in the Knesset building, a recent survey has found.
Research conducted recently by the International labor Rights Fund (ILRF) determined that women worker in export processing industries in Kenya, producing goods for the US marker, suffer from violent sexual abuse by their employees and supervisors.
The study reveals that:
1. Over 90 percent of all respondents had experienced, or observed, sexual abuse within their workplace.
2. 70 percent of the men interviewed viewed sexual harassment of women workers as normal and natural behavior.
3. 66 percent of the women interviewed believed that workplace sexual abuse is a strong contributing factor to the spread of HIV/AIDS.
4. 95 percent of women who had suffered workplace sexual harassment were afraid to report the problem as the women who reported sexual abuse were often fired and demoted.
In China, 80% of working women experienced sexual harassment at some stage of their career. In Germany, a survey indicated that 93% of working women were victims of sexual harassment as of 1998. Approximately 6 of 10 nurses in Australia have experienced sexual harassment. In Hong Kong most complaints received by the Equal Opportunities Commission (EOC) in some recent years were of sexual harassment. In the United States over 50% of employed women had been sexually harassed. In Canada 51% of women reported having experienced sexual violence at least once. In Singapore almost 50% women have been victims of sexual harassment
INDIA AND SEXUAL HARRASMENT
In India, sexual harassment violates the women’s fundamental rights under Articles 14 and 21 of the Indian Constitution.
Now we have Special Act for curbing Sexual Harassment of Women at Workplace which has been discussed. Other legislations which try to prevent sexual harassment are Indian Penal Code, the Indecent Representation of Women (Prohibition) Act, 1987, the Industrial Dispute Act, 1947 and the Factories Act, 1948. The Protection of Human Rights Act, 1993 should also be considered as the rights of women are also human rights and need to be protected at any cost.
Other than these remedies from the above mentioned Acts, the victims of sexual harassment can approach Civil Courts for tortious actions (mental anguish, physical harassment, depression, loss of employment).
There are different kinds of sexual harassment, and can be distinguished into two:
1. Quid pro quo, when a woman is sexually harassed for work benefits.
2. Hostile working environment which is a positive working environment where sexual harassment is prohibited and it is the duty of the employer to provide the employee with such an environment.

DEBUNKING THE MYTHS AND MISCONCEPTION ABOUT SEXUAL HARASSMENT
1. Myth: Only women are harassed and only men are sexual harassers.
Fact: Anyone, irrespective of gender can be the victim of harassment or a harasser.

2. Myth: People invite sexual harassment by their behavior or dress.
Fact: Sexual harassment is not motivated act, but an expression of hostility and/or power focused on differences in gender or sexual orientation. People do not invite sexual harassment.

3. Myth: If ignored, the problem of sexual harassment and stalking will go away.
Fact: Generally, the harasser is persistent and does not stop on his/her own. The harasser often has more target. If ignored by the harassed, the harasser may interpret such behavior as consent or motivation.

4. Myth: Sexual Harassment is a rare occurrence.
Fact: The rate of sexual harassment is increasing throughout the world day by day. It is not a rare occurrence at all. Such incidents keep taking place each and everyday. Few victims take strict against the harasser while a few incidents goes unnoticed or not complained about.
CONCLUSION AND SUGGESTIONS
One can prevent this issue at different levels, government, organizational and individual level by trying to prevent this issue by confronting and not blaming anyone.
● At the Organizational level the employer can provide safe and harassment free environment through provisions and regulations framed within the organization. The sense of security which can be derived from this organization policy can facilitate to work effectively and efficiently for a productive outcome. The entity can give training programme, workshops, educational programme related to sexual harassment to avoid situations.
● The organization must show commitment to this matter. Every matter must be taken seriously and investigated without any delay. This will send a message to all employees that the employer is interested in protecting the interests of women employees and also trying to bring a good working environment. Surveillance methods is a preventive measure, where CCTV are installed in the workplace.
● Employers must conduct monthly meeting with employees to know their problems. Accordingly they can provide a safe working environment.
From the angle of Government, a tremendous job has been enacting a law to eliminate this social problem of Sexual Harassment. The significant consideration part is the implementation process. There is a need to bring empowerment of women through educational programmes and knowledge which will help them to recognize and realize their basic rights. Government see that there is gender equality.
● The media can play an important role in curbing this curse from the society through films, news, advertisements, dramas these are approachable to the public and through other sources like debates, talk shows, and the media can change the mindset of the people.
If the women group or workers come to know about any such harassment, they must bring it to the notice of the complaint committee. It is the duty of the committee to keep everything confidential. Every female worker should know that it is employer’s legal duty to provide women employee with a safe working environment. All the male employees must understand these kinds of incidents affect the health, confidence and ability of a woman and will also lead her to leaving the job.
Above all these there should be social acceptability. Women should not fear to come forward with their problems and complaints. They must be feeling courageous to speak out for themselves. There must be greater involvement of public in awareness programmes and they must play a greater participatory role in governance.
● Law Reform Required: One of the limitation of this act is that it excludes men from the scope. This is not a fair treatment. The act must be amended to include men also so that they can also approach the Internal Complaint Committee/ District Committee for their grievances or complaints which can definitely show and prove equal treatment of men and women in the workplace.
BIBLIOGRAPHY:
● Preventing Sexual Harassment (BNA Communications, Inc.) SDC IP .73 1992 manual.
● http://www.un.org/womenwatch/osagi/pdf/whatissh.pdf
●http://infochangeindia.org/women/analysis/a-brief-history-of-the-battle-against-sexual-harassment- at-the-workplace.html
● https://www.rt.com/news/344995-knesset-sexual-harassment-survey/
●http://www.laborrights.org/sites/default/files/publications-and-resources/Kenya.pdf
● http://www.harvardilj.org/2010/08/online_51_srivastava/
● https://www1.umn.edu/humanrts/svaw/harassment/explore/1whatis.htm)
● http://legal-dictionary.thefreedictionary.com/Same-Sex+Sexual+Harassment
● http://articles.economictimes.indiatimes.com/keyword/sexual-harassment
● http://www.curaj.ac.in/PDF/anti%20sexual%20harrassment%20cell/VishakaGuidelines.pdf
● http://www.sacha.ca)
●http://www.bucknell.edu/x20029.xml –

Critical Analysis of Sexual Harassment under IPC

logoCritical Analysis of Sexual Harassment under IPC

INTRODUCTION

The terms sexual harassment has been defined as – an unwelcome sexually determined behavior (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[1]

This offence of sexual harassment has not been dealt anywhere specifically under the Indian Penal Code. However, following the definition stated above, we find that the offence which falls within the bracket of this definition has been dealt under section 294, section 354 and section 509 of the IPC.

Section 294 deals with obscene acts and songs. Section 354 deals with the case of assault or criminal force to women with intent to outrage her modesty. Section 509 talks about words, gestures or act intended to insult the modesty of a woman.

In this project, the focus will be on section 294 and section 509 of the IPC. Firstly, the concept of these two sections has been explained in the project and then an analysis of the two has been presented in order to develop a broader understanding of the offences under these two sections.

 

SECTION 509 –

This section says that- 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, of 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.

This section is referred as the Eve Teasing Section. The object of the section is to protect the modesty and chastity of a woman.

The essential elements of the section are:

  1. Accused uttered any word, made any sound or made a gesture or exhibits any object or intrude the privacy.
  2. Accused intended that words uttered, sound made or gesture shown or object exhibited seen or heard by the woman.
  3. It has to be directed towards a woman or group of women[2].

There is a difference between Section 354 and 509. Section 509 specifically talks about the insult and modesty of the women whereas Section 354 deals with outraging the modesty of the women.

Now the question that comes for consideration is what is meant by the term modesty. The term has not been defined in IPC. In the famous case of Major Singh Lachhman Singh vs The State on 30 May, 1963[3] ,the Shorter Oxford English Dictionary (Third Edition) definition of the word “modest” in relation to woman has been taken. It says that modesty is “Decorous in manner and conduct; not forward or lewd; shame fast”.  Hence, when used for men, it means the quality of being modest, and in relation to woman, “womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct”.

Webster’s New International Dictionary of the English Language (Second Edition) amplifies the definition of “Modest” by adding “observing the proprieties; free from undue familiarity, indecency, or lewdness’.

In the case Swapna Barman Vs. Subir Das[4] , “Under Section 509 that the word ‘modesty’ does not lead only to the contemplation of sexual relationship of an indecent character. The section includes indecency, but does not exclude all other acts falling short of downright indenency.”

Recently in 2007 the SC defined Modesty as “The essence of a woman’s modesty is her sex.”[5]

An insult to the modesty of the woman is an essential ingredient of this offence. If a man exposes his person in an indecent way or use obscene words which he intend that it should be heard or his obscene drawings should be seen, he is held to be an offender under s.509 of IPC. The intention to insult the modesty of woman must be coupled with the fact that the insult is caused. It means that the other party understands that he is insulted. If a person intrudes upon the privacy of a woman, then also he is considered to be liable under this section.[6]

The intention to insult the modesty is very important as held in Santha vs State Of Kerala on 16 December, 2005[7]. And even when a man exposes his private organs to a woman, he can also be charged under section 509 of IPC. The offence may occur in private or public place.

As per the Justice Verma Committee Report[8], certain modifications should be done in Section 509 of the IPC. The Committee has suggested that use of words, acts or gestures that create an unwelcome threat of a sexual nature should be termed as sexual assault and be punishable for 1 year imprisonment or fine or both.

Recently the criminal law (amendment) ordinance, 2013 was passed in which section 509 of the Penal Code, for the words “shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both”, the words “shall be punished with simple imprisonment for a term which may extend to three years and shall also be liable to fine” shall be substituted.[9]

 

SECTION 294

Section 294 of the act says that- whoever to the annoyance of others-

a.         Does any obscene act in any public place, or

b.         Sings, recites or utters any obscene song, ballad or words, in or near any public place,

Shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both.

The key ingredients of this section are:

  1. The accused-
    1. Did some act,
    2. Sang, recited or uttered any ballad;
    3. That such act, singing etc. was obscene
    4. That it was done in public place
    5. It caused annoyance to others.

This section is not gender specific, and the offender as well as the victim can be both male and female. The essential condition to be satisfied is that the obscene act or song must cause annoyance. Since annoyance is a mental faculty of a person, therefore it has to be derived from the facts and circumstances of the case. In other words, the facts and circumstance has to be considered in order to conclude whether the act caused any annoyance or no.

Now, with regard to the concept and meaning of the word ‘obscene’, it keeps varying from place to place. It differs in accordance to the circumstances- cultural, social and economical. In the Indian context, even kissing in public place by a married couple is considered to be obscene, and the persons doing so can be charged with doing indecent act in public place.[10]  Whereas the same act in western countries is absolutely acceptable. Where the accused addressed openly two respectable girls who were strangers to him, in amorous words suggestive of illicit sex relations with them and asked them to go along with him on his rickshaw, he was held to have committed an obscene act.[11]

Further in the case of K.P Mohammad v. State of Kerala[12], the court held that the performance in a public place, such as hotel and restaurant of cabaret dance and devoid of nudity and obscenity judged according to the standards of our country, is permissible and is not in any way liable to be banned. This judgement shows a very controversial stand quite contrary to the general belief held by the people of our country. However, the same view was held by the Bombay HC in a judgement in April 2005, when they quashed the proceedings against a dance bar owner ruling that section 294 IPC would be attracted only when annoyance is caused to others.[13]

 

ANALYSIS

If we analyze the definition of the term sexual harassment, we find that the key ingredients covered under the definition have been dealt under section 294 and section 509 of the IPC. The definition of sexual harassment talks about ‘sexually coloured remarks’ and ‘pornography’.   Now this sexually colored remark can either be verbal or non- verbal. This gets covered under section 294, as the section talks about any ‘song’(verbal) or ‘act’(non-verbal) which are obscene. Obscenity comes in various forms- by way of talking or by gestures. Obscenity also comes in through pornography, which is an element of sexual harassment. This is how section 294 covers the offense of sexual harassment.

Section 509 specifically talks about infringing the modesty of women. If seen in general parlance then sexual harassment of a woman directly infringes the modesty of a woman. This harassment can come in the form of ‘words’, ‘gesture’, ‘act’ or ‘exhibit’ of objects. This gets covered by section 509.

Thus, the two sections cover the offense of sexual harassment of woman.

However, the two sections have a key loophole with reference to the punishment. Section 294 prescribes punishment for 3 months at maximum. Section 509 prescribes simple imprisonment for maximum of one year. However, seeing the present scenario of India, where the offense of sexual harassment has increased by leaps and bounds, and the offenders managing to escape the liability because of such meager punishment, we cannot afford to stay with such reformative punishment. Rather, steps need to be taken to enhance rigorous punishment which will have deterrence effect on the future offender.

CONCLUSION

After going through  the project, we reach to a conclusion that the both the sections and their elements need to be given a broader interpretation in order to deal with rising offence of sexual harassment of woman. With the degradation of the Indian society, both the sections should be enforced and applied so as to create a deterrence effect on the society.



[1]Vishaka and ors v. State of Rajasthan JT 1997 (7) SC 384

[2] Section 509 IPC criminalises a ‘word, gesture or act intended to insult the modesty of a woman’ and in order to establish this offence it is necessary to show that the modesty of a particular woman or a readily identifiable group of women has been insulted by a spoken word, gesture or physical act as held in S. Khushboo Vs. Kanniammal and Anr (AIR2010SC3196)

[3]  AIR 1963 P H 443

[4] (2004)1GLR168

[5] http://articles.timesofindia.indiatimes.com/2007-03-21/india/27870988_1_modesty-outraging-definition

[6]http://www.lawyersclubindia.com/articles/Sexual-harrasment-under-India-penal-code-1860-A-critical-analysis-3067.asp#.UWqe56JHJLw

[7] 2006 (1) KLT 249

[8]http://www.prsindia.org/uploads/media/Justice%20verma%20committee/js%20verma%20committe%20report.pdf

[9] http://mha.nic.in/pdfs/criminalLawAmndmt-040213.pdf

[10]   Times of India, December 22,2005 , p.8

[11] Zafar Ahmad, AIR 1963 All 105

[12]   1984 CrLJ 745

[13] Supra, see footnote 9

Indian Law to Protect Women against Sexual Harassment at Workplace

Sexual Harassment at the WorkplaceK Rajasekharan

Sexual harassment

No woman shall be subjected to sexual harassment at any workplace, mandates a new law in India. Though sexual assault and rape are prominent forms of violence against women, women do frequently face intimidating or repressive types of inappropriate sexual behaviors at workplace. Woman who refuses to submit to sexual adventures of those in power are many a time victimized at workplace. The victims often undergo severe stress, strain and trauma. Such harassments not only injure the affected woman, but also violate a broad range of rights she is endowed with such as right to live with dignity, right to practice a profession in a safe environment and right to have equality at the workplace. The repressive act of sexual harassment needs stern action and the perpetrators undoubtedly deserve stringent punishment. Now a reasonable law is in place in India to deal with sexual harassment at workplace to a great extent but its implementation is a difficult task in a women unfriendly environment. The first thing to do to make the law work is to make its legal provisions known to the stakeholders of the law.

The legislative timeline

The legislation to prevent sexual harassment of women at workplace recently passed by both houses of Parliament is the first law in India to deal with sexual harassment at workplace. The Lok sabha, on 11th March 2013, gave its final assent to the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill by accepting the minor amendments that the Rajya Sabha had made on February 26th. The Lok Sabha had initially passed the bill with other provisions on 3rd September 2012. It will now become a law when the President accords his assent on the bill and gets notified in the Gazette. The rules required to implement and monitor of the law are to be made to put the legislation to operation.

The predecessor of this legislation was the landmark judgment of the Supreme Court (SC) in the case Vishaka vs State of Rajasthan, a rape case involving a social worker in Rajasthan in 1997. The judgment outlined a set of guidelines – Guidelines on Sexual Harassment at the Workplace – for prevention and redress of complaints on sexual harassment of women at workplace. The verdict defined the concept of sexual harassment, laid down duties of employers to deal with it and stipulated formation of committees to dispose of complaints on sexual harassment at workplace, for the first time in India.

 

Sexual harassment defined

Sexual harassment refers to a broad range of unwelcome sexually determined behaviors. They include physical contact and advances, a demand or request for sexual favours, sexually coloured remarks, showing pornography and any other unwelcome physical, verbal or non-verbal conduct of sexual nature. It may range from gender based taunting to unsolicited physical contact to coerced intercourse. The sexual gestures, offensive remarks, vulgar stares, embarrassing jokes or distasteful comments might fall within the operation of the law. Any sexual act that undermines women’s sense of personal dignity is an offence of sexual harassment.

Physical sexual harassment may include pinching, grabbing, hugging, patting, leering, brushing against and touching. Psychological harassment may include relentless proposal for physical intimacy, beginning with subtle hints which may later lead to overt request for sexual favours. The court decisions in other countries indicate that a mere utterance of epithet may not be sufficient to constitute sexual harassment. To consider as offensive it should be ‘severe’ or ‘pervasive’. Simple teasing is an uncivil behavior but may not constitute an offence of sexual harassment. But the safer option is not to engage in anything that may fall within the scope of sexual harassment.

The essential ingredients in sexual harassment are that the conduct must be unwelcome, sexual in nature and disadvantageous to the complainant in her recruitment, promotion or work. In short the concept of “sexual harassment” is given an all-encompassing definition which includes non-verbal harassment as well.

Kinds of harassment

There are two kinds of harassment; hostile environment harassment and quid pro quo harassment.

Hostile environment harassment refers to the kind of harassment that women confront at the workplace remains offensive, derogatory, demeaning or intimidating to the women. On the other hand quid pro quo harassment – quid pro quo which means something in return for something – consists of demands for sexual favours accompanied by threats of adverse consequences in jobs like denial of promotion, loss of benefits or workplace conveniences, if the request is denied. It includes any implied promise, explicit or implicit threat, unnecessary intimidation in work or humiliating threat, to obtain a sexual favour.

Law covers unorganized sector

The law covers women in organised and unorganised sector including the private sector. Organizations in health, education, industry, financial services, sports and any conceivable work place where a woman is employed come under the law’s operation.

It covers domestic worker who is employed to do domestic work in any household for remuneration whether in cash or kind, either directly or through any agency or temporary, part time or full time basis, but does not include any member of the family of the employer. However the law does not cover members of the armed forces.

Employer to institute a no-harassment policy

The law mandates the employers to provide a safe work environment devoid of sexual harassment to their women employees. Employers have to take preventive and remedial measures to make the work environment safe for women, failing which they will be punished. Employer is liable for not taking reasonable precautionary measures to prevent sexual harassment.

The employers are mandated to formulate a policy which prohibits sexual harassment as part of institution’s service regulations as a precautionary measure to provide a healthy workplace environment. The no-harassment policy should contain clear information as to what constitutes an act of sexual harassment. The policy should have a clause that defines sexual harassment to be a form of ‘employment misconduct’ punishable under the service rules. The policy in addition to prohibiting sexual harassment should explain penalties, outline grievance procedures, indicate additional resources like facility for conciliation, list of contact persons for consultation etc. It should also include a policy section which shows how it ensures impartiality in investigation.

The Officer responsible for implementing the law is the head of the institution with regard to a department, organization, undertaking, establishment, enterprise, institution, office, branch or unit unless any other officer is assigned the responsibility by any specific order. In all other kinds of workplace any person responsible for the management, supervision and control of the workplace is the responsible officer.

As well the officers under the central and state governments have been assigned certain responsibilities to make the law work.

 

Internal grievance handling

The law outlines the structure of committees – an internal complaints committee for the institutions with ten or more employees and a district level local complaints committee for the other institutions – to be set up for handling grievances.

All offices, hospitals, institutions and other workplaces with 10 or more employees should mandatorily set up an Internal Complaints Committee (ICC) to handle complaints related to sexual harassment in the respective office. The employer should nominate the committee members and constitute the committee. The committee should include a woman from the senior position in the institution as presiding officer, another senior woman as a member, two other employees as members and a non-governmental member. At least half of the members should be women having commitment to the cause of sexual harassment. The committee may not perform well unless its members are persons with right social and legal perspective. The members can hold office for a period not exceeding three years.

At the district level, the District Officer (normally the Collector or someone), an officer as authorized under the act, should constitute a Local Complaints Committee. The committee will handle complaints in the whole district which are not handled by the ICC. The LCC should consist of an eminent social worker as chairperson, a woman from the block/municipality as member, two representatives (one to be woman) from non-governmental sector as members, one SC/ST person as member and the social welfare officer as ex officio member.

A Nodal Officer will, as well, be nominated by the District Officer for each block, municipality or tribal area to receive complaints and to forward them to respective ICC/LCC within seven days.

Both the complaints committees mentioned have the powers of a civil court for ensuring evidence. However, the members need not require any legal background nor do they need to undergo any legal training as per the law.

Complaint handling mechanism

An aggrieved woman can make a complaint in writing to the Internal Complaints Committee, within three months from the incident. If the internal complaint committee is not in place, the complaint will have to be filed before the Local Complaints Committee.

The law provides for mediation as the first step in complaint handling. If an aggrieved woman demands conciliation between her and the respondent, the Complaints Committee is bound to conduct conciliation before initiating an inquiry. The conciliation should not be on monetary basis. If a settlement is reached through conciliation the complaint committee should not inquire the issue further but close the issue and a conciliation report to the district officer, the complainant and the respondent. If a conciliation agreement fails or a settlement is violated or no request from complainant for conciliation exists, the committee should then proceed with an inquiry as provided for in the service rules.

If the committee, during the inquiry, finds that there is a prima facie evidence of serious criminal nature, the complaint will have to be passed on to the police within seven days. The police should take further action on the complaint treating it as an allegation on ‘outraging the modesty of woman’ under Indian Penal Code (IPC) Section 509. The offence under IPC 509 is a cognizable, bailable and compoundable (a private nature offence) one. The court, when settling the case, can award a payment to the aggrieved on account of emotional distress, mental trauma or pain, as well.

The committee should then conduct a detailed inquiry. The inquiry should be completed within 90 days. During the inquiry the committee has authority to recommend to the employer to transfer either the complainant or respondent to different location or to grant leave of absence to the complainant as rules stipulate so as to avoid face to face contact. The employer is bound to implement the recommendation.

On completion of the inquiry, the committee will have to submit its report with its recommendations to the disciplinary authority of the institution within ten days. If the complaint is genuine, the report should suggest disciplinary actions commensurate with the nature of sexual harassment. Since sexual harassment amounts to ‘misconduct in employment’, the disciplinary authority will have to take disciplinary action, as per in the service rules. Disciplinary action may include compensation to be paid to the complainant by the respondent. The complaint committee can decide the quantum of compensation to the complainant in tune with the gravity of offence and the stipulation in the rules.

During the inquiry, principles of natural justice should be followed. That means both the parties should be given an opportunity of being heard. As well a copy of the findings may be made available to them to enable them to make representation. The respondent should get a chance to rebut the evidences against him. On the other hand if charges framed are vague and indefinite it will be a negation of reasonable opportunity for the victim and that would be a violation of fairness.

The ICC/LCC is endowed with the power of a civil court to enforce attendance of people, discovery of evidence and production of documents. The ICC/LCC is deemed to be an inquiry authority and its report an inquiry report.

Third-party harassment

A person who is not an employee, but who perpetrates harassment within the workplace of the employee, is also recognised by the law. It is the duty of an employer or person in charge a workplace to prevent sexual harassment by a third party – a casual visitor there.

Penalties prescribed

The onus of punishing the offender is on the employer. The cases of sexual harassment of women at workplace will have to be disposed of by in-house committees (that must be set up) within a period of 90 days.

If the employer fails in this duty, a penalty of Rs. 50,000 would be imposed. Repeated non-compliance with the provisions of the legislation can attract twice the punishment and may lead to cancellation of licence or registration to conduct his business.

Provision against false charges

A law of this kind is amenable to misuse. The person against whom charges have been made goes through enough trauma and social ostracism during the tenure of enquiry. So the section 14 of the law makes it clear that if anyone makes a “malicious” or false complaint or produce any misleading document that will attract punishment. Such action on the complainant will have to be taken only after establishing her malicious intent through an inquiry. The provision shows a prudent balancing approach between the aggrieved and the respondent. A mere inability to substantiate a complaint or provide adequate proof need not attract punitive action. So the fear of misuse of the provision need not deter a woman from making a complaint.

However there is a growing tendency among people to avoid any negative publicity of being indifferent to sexual harassment which may indirectly influence the committee /employer to propose/take disciplinary action regardless of what the investigation revealed or whether any misconduct actually had occurred.

 

Right to information

The contents of the complaint, the identity and addresses of the complainant, respondent and witnesses, any information relating to conciliation and inquiry proceedings, recommendations and the action taken shall not be published, communicated or made known to the public, press and media in any manner. So the details of the case are now outside the purview of the Right to Information Act, 2005.

Conclusion

The law prevents media trial of victim. To put the act into implementation, the Central government will have to notify the rules. It is a sad story that a case-law in Vishaka case in 1997 delivered by a great judge of our times – Justice J S Verma – had to wait sixteen years to become a legislative law on a crucial topic like sexual harassment of women in a country considered to be the largest democracy in the world. It certainly reminds us that our dysfunctional democracy requires a better regime of ‘rule of law’.

This legislation casts a great responsibility on the people at large and the women activists in particular to make the law work for the purpose for which it is made. Obvious misuse of the law may defeat its purpose in due course as history indicates. Discouraging any misuse of the law is necessary precaution for maintaining its effectiveness. This does not mean that patent harassments should be ignored but trivial ones should not be pressed unduly.

References

1. Supreme Courts Guidelines in Vishaka Case 1997

2. The 239th Report of the Rajya Sabha on the Protection of Women against Sexual Harassment at Workplace Bill 2010

3. The bill as passes by the Lok Sabha on 3rd September 2012

4. NCERT Policy on Prevention of Sexual Harassment against Women at Workplace (a model of a policy)

 

 

Sexual harassment at workplace

Sexual harassmentMadhvender Chauhan

ABSTRACT

Sexual harassment is “behavior with a sexual connotation that is abusive, injurious and unwelcome”. For the victim, sexual harassment has direct consequences for the maintenance or improvement of his or her living conditions and/or places him or her in an atmosphere of intimidation, humiliation or hostility.

The purpose of the paper is to provide a holistic and comprehensive picture in regard to the sexual harassment at workplace.

The paper attempts to discuss all kinds of conduct that can come within the purview of the word “sexual harassment”. The paper also brings to light the various tests which can be applied to determine as to whether certain conduct at the workplace can be treated as sexual harassment or not. The paper also focuses on the international instruments and conventions which came into existence to prohibit this evil of sexual harassment in the society. The paper stresses on the preventive and procedural actions that need to be taken by the employers to combat sexual harassment at the workplace. The paper shall also provide for the liabilities and the remedies that are available to the victims of sexual harassment. The paper shall conclude by suggesting the various resorts that are open to the victims to get their grievances redressed.

need of providing the women with the opportunity to plan and make choices for themselves and further, to transform those choices into desired outcomes. The paper will also focus on the various measures which are being taken, both at the national and international fronts, to improve the condition of women and empower them. The paper shall conclude by suggesting measures to sow the seeds of entrepreneurial culture so deep in the society of India that plants of success, prosperity and empowerment of women is bound to reap.

INTRODUCTION:

Sexual harassment is any sexually oriented conduct that may endanger the victim’s job, negatively affect the victim’s job performance or undermine the victim’s personal dignity. It may manifest itself physically or psychologically. Its milder and subtle forms may imply verbal innuendo, inappropriate affectionate gestures or propositions for dates and sexual favours. However, it may also assume blatant and ugly forms like leering, physical grabbing and sexual assault or sexual molestation.

As noted by Dickson, CJ of the Supreme Court of Canada in Janzen v. Platy Enterprises Ltd. , in most cases of sexual harassment, the perpetrator misuses “a position of power to import sexual requirements into the workplace thereby negatively altering the working conditions of employees who are forced to contend with sexual demands”. Sexual harassment involves “the unwanted imposition of sexual requirements in the context of a relationship of unequal power”.

It is important to bear in mind that the perpetrator of sexually harassing behavior may not be motivated only by sexual desire or lust. The perpetrator may simply be demonstrating his or her power to the victim. In many cases, such behavior may be a by-product of the prevailing stereotypes in the system. Thus, male perpetrators may indulge in sexually-harassing behavior to simply show the female victim ‘her place’ or to convey to her that she is good only for gratifying their sexual desires. While cases involving sexual harassment of subordinates by superior officers may be characterized by the perpetrator’s desire to assert power over the recipients, those involving sexual harassment by co-employees (including subordinates) and outsiders (like the employer’s customers) may be actuated by sheer lust or sexual stereotyping.

The following passage from the decision of the arbitrator in the Canadian Pacific Ltd. and B.M.W.E. (Parker), Re , depicts the wide range of sexual harassment:

“While physical touching and the making of sexual demands may be the crudest form of sexual harassment, giving rise to the earliest complaints and court or tribunal decisions, experience has shown that the concept of sexual harassment can be much broader. Innuendo by words or gestures, unwelcome staring, sexually abusive jokes or other language, the unwelcome displaying of pornography and the writing of graffiti on workplace walls which singles out or demeans individual employees are all now generally recognized as forms of sexual harassment, even though they may not involve an abuse of power or the making of sexual demands by the member of one sex upon a member of the other sex.”

DEFINITION:

In India, in the absence of any statutory definition of the term sexual harassment, it was left to the Supreme Court to do the needful. Relying on international conventions and norms, particularly General Recommendation No.19 (January 1992) of the Committee on the Elimination of Discrimination Against Women (CEDAW) constituted by the United Nations, the Supreme Court defined the term sexual harassment for the first time in the year 1997 in Vishaka v. State of Rajasthan . The definition is almost parimateria with the one proposed by the CEDAW, United Nations and reads:

“Sexual harassment includes such unwelcome sexually-determined behavior (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.

Where any of these acts is committed in circumstances whereunder the victim of such conduct has a reasonable apprehension that in relation to the victim’s employment or work whether she is drawing salary, or honorarium, or voluntary, whether in government, public or private enterprise such conduct can be humiliating and may constitute a health and safety problem. It is discriminatory for instance when the women has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work including recruiting or promotion or when it creates a hostile work environment. Adverse consequences might be visited if the victim does not consent to the conduct in question or raises any objection thereto”.

THE LEGAL TEST FOR SEXUAL HARASSMENT:

1. Unwelcome:To fit in the concept of ‘sexual harassment’ the relevant conduct must be ‘unwelcome’, that is unwelcome to the recipient of that conduct. In this context ‘unwelcome’ means that the advance, request or conduct was not solicited or invited by the recipient, and the recipient regarded the conduct as undesirable or offensive. While definitions of ‘sexual harassment’ abound in various international instruments, declarations and conventions, as also in court decisions, and are largely similar, “the one common element in all these definitions is the unwanted and unwelcome nature of sexual harassment’. The first feature of sexual harassment is the non-consensual practice at or connected with the workplace of the proscribed sexual behavior.

2. Sexual in Nature: The second element of the definition requires the conduct to be ‘sexual’ in nature. Courts, including Human Rights Tribunal, worldwide have recognized a broad scope of conduct that may fall under the definition of sexual harassment, depending on the circumstances. Such conduct may be physical, verbal or non-verbal. The ILO has identified the following “most common forms of sexual harassment” at the workplace:

• Physical harassment (kissing, patting, pinching or touching in a sexual manner);

• Verbal harassment (unwelcome comments about a person’s sex orprivate life, jokes and insinuations, sexually explicit conversation, suggestive comments about a person’s appearance or body);

• Gestural harassment (sending suggestive gestures, such as nods, winks, gestures with the hands, fingers, legs or arms);

• Written or graphic harassment(sending pornographic pictures through e-mail, putting up pin-ups or addressing unwanted love letters to an employee);

• Emotional harassment (behavior which isolates, is discriminatory towards, or excludes a person on the grounds of his or her sex).

3. Persistence and/or Gravity of the Conduct: To constitute ‘sexual harassment’ it is not enough that the impugned conduct be merely unwelcome sexual conduct. The word ‘harass’ implies the installation of fear or the infliction of damage; is indicated by the definition of the term in the Macquarie Dictionary: “1. to trouble by repeated attacks, incursions, etc., as in war or hostilities; harry; raid.2. to disturb persistently; torment, as with troubles, cares, etc.” There must be either unwanted sexual behavior whose main effect is to subordinate the maintenance of conditions and benefits to submission to unwelcome sexual demands, or behavior that creates an “intimidating, hostile or humiliating working environment”. In the context of ‘sexual harassment’ there is unanimity of judicial opinion that the behavior complained of need not be repeated to constitute sexual harassment and in a given case even a single act may be sufficient. While it is important to consider the nature and intensity of the unwelcome act itself, its impact on the victim must also be considered.

INTERNATIONAL INSTRUMENTS AND CONVENTIONS:

Much of the impetus for the statute law and judicial decisions that prohibit or constrain sex discrimination and sexual harassment stems from the recognition of the equality of the sexes in various international instruments and conventions. The Charter of the United Nations, The Universal Declaration of Human Rights, the European Convention on Human Rights and the International Covenant on Civil and Political Rights, all contain statements of a principle against discrimination on the basis of sex. That principle finds fuller expression in relation to women in the convention on the Elimination of All Forms of Discrimination against Women. India ratified the Convention on 25.06.1993 with some reservations, which are, however, not relevant in the present context.

THE INDIAN CONSTITUTION:

The meaning and content of the fundamental rights guaranteed in the Constitution of India are of sufficient amplitude to encompass all the facets of gender equality including prevention of sexual harassment or abuse. The Courts are under a constitutional obligation to protect and preserve those fundamental rights. That sexual harassment of a female at the place of work is incompatible with the dignity and honour of a female and needs to be eliminated and that there can be no compromise with such violations,admits of no debate. Referring to the incidents of sexual assaults on working women, the Supreme Court said in Vishaka case: “Each such incident results in violation of the fundamental rights of ‘Gender Equality’ and the ‘Right to Life and Liberty’. It is a clear violation of the rights under Articles 14, 15 and 21 of the Constitution. One of the logical consequences of such an incident is also the violation of the victim’s fundamental right under Article 19(1)(g) ‘to practice any profession or to carry out any occupation, trade or profession depends on the availability of a ‘safe’ working environment. Right to life means life with dignity.” Article 42 in Part IV-A of the Constitution which deals with the Directive Principles of India provides that the State shall make provision for securing just and humane conditions of work and for maternity relief. Amongst the fundamental duties of the citizen Article 51-A is relevant which states that it shall be the duty of every citizen of India to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women.”

REASONS FOR COMBATING SEXUAL HARASSMENT:

Sexual harassment in the workplace attacks the dignity and self-respect of the victim both as an employee and as a human being. Therefore, addressing the issue of sexual harassment is directly linked to the core concerns of improved working conditions and respect for the dignity of workers. ILO says that “there are several good reasons why employers are taking action to prevent sexual harassment”. Legal compliance, business morality and ethics, desire to create a working environment which is conducive to the personal development and high level performance of their employees, litigation costs, desire to protect the company’s image and reducing the health costs and absenteeism of victims suffering from stress caused by sexual harassment are some of the main reasons cited by the ILO in this regard.

PREVENTATIVE AND PROCEDURAL ACTION BY EMPLOYERS:

Sexual harassment “continues to be a major obstacle to equality of opportunity and treatment for women”. Therefore employers are under ‘increased pressure” to tackle this problem. The present civil and penal laws in India do not adequately provide for specific protection of women from sexual harassment in workplaces. Apprehending, and rightly so, that enactment of such legislation would take considerable time, the Supreme Court in Vishaka case thought it necessary and expedient to lay down certain guidelines for observance by employers and other responsible persons in workplaces or other institutions so as to ensure the prevention of sexual harassment of women and to protect their fundamental rights. The Apex Court prescribed the following preventive steps for the employers “without prejudice to the generality of this obligation”:

• Express prohibition of sexual harassment as defined (in this decision) at the workplace should be notified, published and circulated in appropriate ways.

• The rules/regulations of government and public sector bodies relating to conduct and discipline should include rules/regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender.

• As regards private employers steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946.

• 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 at workplaces and no woman employee should have reasonable grounds to believe that she is disadvantaged in connection with her employment.

“The advantage of workplace mechanisms over legislation”, says an ILO report, “is that their role is primarily preventive. Rather than being confined to responding to sexual harassment, they are intended to ensure that it does not take place. Effective workplace policies protect employees by dissuading potential harassers, and identifying and responding to harassing behavior in its early stages.” The employers should formulate policy statements expressly declaring that sexual harassment at the workplace shall not be tolerated or condoned under any circumstance whatever.

Various other recommendations which are relevant to Indian employers as well, for shaping their policies on sexual harassment, are condensed below:

The policy statement should:

• Make it clear what is considered inappropriate behavior at work. It should also explain that such behavior, in certain circumstances might be unlawful.

• Place a positive duty on managers and supervisors implement the policy and to take corrective action to ensure compliance with it.

• Place a positive duty on all employees to comply with the policy and to ensure that their colleagues are treated with respect and dignity.

• Explain the procedure that employees subjected to sexual harassment at work should follow so as to obtain assistance. It should also specify the persons to whom they should complain.

• Contain an undertaking that allegations of sexual harassment will be dealt with seriously, expeditiously and confidentially, and that employees will be protected against victimization or retaliation for bringing a complaint of sexual harassment.

• And last but not the least, specify that appropriate disciplinary measures would be taken against employees found guilty of sexual harassment.

LIABILITY ABD REMEDIES:

Nearly all industrialized countries provide some form of legal recourse against sexual harassment at work. However, as pointed out by an ILO publication, the extent to which such remedies are used usually depends on the legal system where they are located. In some countries sexual harassment at work is legislatively or judicially recognized as a legally distinct type of prohibited activity. However, other countries are yet to reach “this level of awareness.” In India, thanks to our Supreme Court, our legal system has reached that level of awareness where sexual harassment at work is recognized as a legally distinct type of prohibited activity. This has been possible not because of some progressive legislation enacted by the Parliament or any State legislature, but “by a rather innovative judicial law-making process” resorted to by the Supreme Court in Vishaka case, “against the growing menace of sexual harassment of women at the workplace.” In Vishaka, a three judge Bench categorically declared, “ The meaning and content of the fundamental rights guaranteed in the Constitution of India are of sufficient amplitude to encompass all the facets of gender equality including prevention of sexual harassment or abuse.”

Having noted that the present civil and penal laws in the country do not adequately provide for specific protection of women from sexual harassment at work and that enactment of such a legislation would take a considerable time, the Supreme Court laid down certain “guidelines and norms” for “due observance at all workplaces or other institutions, until a legislation is enacted for the purpose.” The Court emphasized that this would be treated as the law declared by it under Article 141 of the Constitution. Also, there are two other statutes which may be of particular help to victims of sexual harassment, viz., the National Commission for Women Act, 1990, and the Protection of Human Rights Act, 1993.

CONCLUSION:

Sexual harassment is a serious and real problem for various working women in large number of occupations, employments, jobs, trades and businesses, and economic sectors. It is an affront to the dignity and self-respect of the victims. It may have disastrous consequences both for the victims and the employers. It is the legal duty of the employer to take appropriate affirmative action to combat sexual harassment at work. Notwithstanding the absence so far of any statute in India that specifically deals with the problem of sexual harassment at work, victims of sexual harassment have remedies under different types of law such as the Indian Constitution, Labour Laws, Criminal Laws, the National Commission for Women Act, 1990, Protection of Human Rights Act, 1993, as also Torts Law.

 

 

DOMESTIC VIOLENCE AGAINST WOMEN IN INDIA

In India where almost half of the population are women, they have always been ill-treated and deprived of their right to life and personal liberty as provided under the constitution of India. Women are always considered as a physically and emotionally weaker than the males, whereas at present women have proved themselves in almost every field of life affirming that they are no less than men due to their hard work whether at home or working places. Behind closed doors of homes all across our country, people are being tortured, beaten and killed. It is happening in rural areas, towns, cities and in metropolitans as well. It is crossing all social classes, genders, racial lines and age groups. It is becoming a legacy being passed on from one generation to another. But offences against women which reflects the pathetic reality that women are just not safe and secure anywhere. According to a latest report prepared by India’s National Crime Records Bureau (NCRB), a crime has been recorded against women in every three minutes in India. Every 60 minutes, two women are raped in this country. Every six hours, a young married woman is found beaten to death, burnt or driven to suicide.

Violence against women is not a new phenomenon. Women have to bear the burns of domestic, public, physical as well as emotional and mental violence against them, which affects her status in the society at the larger extent. The statistics of increasing crimes against women is shocking, where women are subjected to violence attacks i.e. foeticide, infanticide, medical neglect, child marriages, bride burning, sexual abuse of girl child, forced marriages, rapes, prostitution, sexual harassment at home as well as work places etc. In all the above cases women is considered as aggrieved person.

The term used to describe this exploding problem of violence within our homes is ‘Domestic Violence’. This violence is towards someone who we are in a relationship with, be it a wife, husband, son, daughter, mother, father, grandparent or any other family member. It can be a male’s or a female’s atrocities towards another male or a female. Anyone can be a victim and a victimizer. This violence has a tendency to explode in various forms such as physical, sexual or emotional. ‘Domestic Violence’ includes harms or injuries which endangers women’s health, safety, life, limb or well being, whether mental or physical. It may also be through physical, sexual, verbal, emotional and economic abuse. According to ‘United Nation Population Fund Report’, around two-third of married Indian women are victims of Domestic Violence attacks and as many as 70 per cent of married women in India between the age of 15 and 49 are victims of beating, rape or forced sex. In India, more than 55 percent of the women suffer from Domestic Violence, especially in the states of Bihar, U.P., M.P. and other northern states.

What amounts to domestic violence against women? -Domestic Violence undoubtedly a human right issue where it is very important to know what actually leads to act of domestic violence. The most common causes for women stalking and battering include:- exploitation of women for demanding more dowry, discrimination of women, alienation of women’s self acquired property fraudulently, torture by husband and in-laws of the husband, arguing with the partner, refusing to have sex with the partner, neglecting children, going out of home without telling the partner, not cooking properly or on time, indulging in extra marital affairs, not looking after in-laws, cruelty by husband or in-laws mentally or physically, abusing & insulting by using vulgar language, sexual harassment, molestation, immoral traffic, rape, sodomy and all other inhuman acts. In all above stated causes women are subjected to torture and will be considered as the aggrieved person. Usually violence takes place due to lack of understandings between the couple as well as in the family.

The consequences of domestic violence attack on women, which will affect victim as well as family of the victim. Domestic Violence affects women’s productivity in all forms of life i.e. assaulted women will always get agonized and emotionally disturbed and remain quite after occurrence of the torment. The suicide case of such victimized women is also a deadly consequence and the number of such cases is increasing day by day. A working Indian woman may lose her efficiency in work or drop out from work in some cases. Domestic Violence may affect the life of children at the larger extent because child will be having greater attachment with her mother and once the mother’s grief and sufferings revealed then child may turn silent, reserved and express solace to the mother. In some of the cases violence will lead to maintain distance from the partner whereby sexual life gets affected adversely. Sometimes marriage life will become a burden to the spouse and one of the spouses will opt out for divorce or separation which again affects life of the children.

In a case where wife is beaten up by her husband doesn’t amount to domestic violence unless a sufficient reason of violation of right to life is shown. In another case where the women just not given food, it amounts to domestic violence if it is intended to achieve the ultimate purpose of necking her out of the benefits of shared household.

To prevent violence against women and to protect the rights of aggrieved women, the legislation ‘The Protection of Women from Domestic Violence Act, 2005’ was passed by the parliament. According to this act every women who have been deprived of their right to life by the act of husband or relatives of the husband, can file a complaint to the protection officer, police officer or magistrate in the form of ‘Domestic Incident Report’ (Similar to FIR). Complaint can be filed by the victim /aggrieved person or relatives, it will be considered as the prima-facie evidence of the offence. Every ‘Domestic Incident Report’ has to be prepared by the Protection Officer which will assist in the further investigation of the incidence. The protection officer will pass certain orders i.e. protection of the women, custody of respondent and order of monetary relief to the victim.

The Government of India should come out with some more stringent laws to protect the rights of women who are victims of violence of any kind occurring within the family, so that it will work as the preventive measure to eradicate the crime. A strict law to be passed to punish those women who are filing a false compliant against husband or relatives by misusing of Domestic Violence Act so that there will be fair justice to all.

 DHAWESH PAHUJA