You can tell the condition of a nation by looking at the status of its women.-Pandit Jawaharlal Nehru
Sexual harassment of women is a global phenomenon prevalent both in developed as
well as in developing countries. Cutting across religion, culture, race, caste,
class and geographical boundaries it has spread like virus in the society. It,
being offensive to human dignity, human rights and gender equality, has emerged
as a fundamental crisis the world over. It is a complex issue involving women,
their perceptions and behaviour, and the social norms of the society which
emerges from gender discriminatory attitudes and is a complex interplay of
gender, power and sexuality.
With improved access to education and employment, millions of Indian women are
entering the country’s workforce today. Many working women face sexual
harassment at workplace on daily basis. It is crucial therefore that as a
country, we strive to eliminate work-place sexual harassment since women have
the right to work in safe and secure environment. Protection of women is
necessary for gender equality and development of nation as a whole.- Maneka Gandhi
Sexual harassment at the work place is an affront to the fundamental rights of a
woman, the Supreme Court remarked in Civil Appeal No 1809 of 2020 titled Punjab
and Sind Bank & Ors. Vs. Durgesh Kuwar, while upholding High Court Judgment
that quashed a transfer of a woman bank employee.
While directing her to be re-posted at the Indore Branch, the Bench comprising
Justice Dhananjaya Y. Chandrachud and Justice Ajay Rastogi also said that she
will be entitled to a cost of Rs. 50,000.
The Bench said:
There can be no manner of doubt that the respondent has been victimized. Her
reports of irregularities in the Branch met with a reprisal. She was transferred
out and sent to a branch which was expected to be occupied by a Scale I officer.
This is symptomatic of a carrot and stick policy adopted to suborn the dignity
of a woman who is aggrieved by unfair treatment at her workplace. The law cannot
countenance this. The order of transfer was an act of unfair treatment and is
vitiated by malafides.
As enshrined in the Preamble to the Constitution of India, equality of status
and opportunity must be secured for all its citizens; equality of every person
under the law is guaranteed by Article 14 of the Constitution of India. A safe
workplace is therefore a woman’s legal right. Indeed, the Constitutional
doctrine of equality and personal liberty is contained in Articles 14, 15 and 21
of the Constitution of India.
These Articles ensure a person’s right to equal
protection under the law, to live a life free from discrimination on any ground
and to protection of life and personal liberty. This is further reinforced by
the UN Convention on the Elimination of all Forms of Discrimination against
Women (CEDAW), which was adopted by the UN General Assembly in 1979 and which is
ratified by India.
Often described as an international bill of rights for women,
it calls for the equality of women and men in terms of human rights and
fundamental freedoms in the political, economic, social, cultural and civil
spheres. It underlines that discrimination and attacks on women’s dignity
violate the principle of equality of rights.
Sexual harassment constitutes a gross violation of women's right to equality and
dignity. It has its roots in patriarchy and its attendant perception that men
are superior to women and that some forms of violence against women are
One of these is workplace sexual harassment, which views various
forms of such harassment, as harmless and trivial. Often, it is excused as
‘natural’ male behaviour or ‘harmless flirtation’ which women enjoy. Contrary to
these perceptions, it causes serious harm and is also a strong manifestation of
sex discrimination at the workplace. Not only is it an infringement of the
fundamental rights of a woman, under Article 19 (1)(g) of the Constitution of
India to practice any profession or to carry out any occupation, trade or
business; it erodes equality and puts the dignity and the physical and
psychological well-being of workers at risk.
This leads to poor productivity and
a negative impact on lives and livelihoods. To further compound the matter,
deep-rooted socio-cultural behavioural patterns, which create a gender
hierarchy, tend to place responsibility on the victim, thereby increasing
inequality in the workplace and in the society at large.
Sexual harassment at workplace is an extension of violence in everyday life and
is discriminatory and exploitative, as it affects woman's right to life and
livelihood. In India, for the first time in 1997, a petition was filed in
Supreme Court of India to enforce the fundamental rights of the working women,
after the brutal gang rape of Banwari Devi, a social worker from Rajasthan.
As an outcome of the landmark Judgment of Vishaka & Ors Vs State Of Rajasthan &
Ors, AIR 1997 SC 3011, the Sexual Harassment of Women at Workplace (Prevention,
Prohibition and Redressal) Act, 2013 was enacted, wherein, it was made mandatory
for every employer to provide a mechanism to redress grievances pertaining to
workplace sexual harassment and enforce the right to gender equality of working
With the enactment of the Act, India is a part of a select group of the
countries to have prohibited sexual harassment at workplace through national
legislation. The Act is unique in its broad coverage which includes all working
women from the organized as well as the unorganized sectors alike, as also
public and private sectors, regardless of
What is Sexual Harassment?
As a result of growing importance of issue of the Sexual harassment, Section
354-A was added to the Indian Panel Code, by way of Criminal Law (Amendment)
Act, 2013 which enlists the acts which constitutes the offence of sexual
- Physical contact and advances involving unwelcome and explicit sexual
- a demand or request for sexual favours; or
- showing pornography against the will of a woman; or
- making sexually coloured remarks
Earlier, there were no related laws in the Indian Penal Code that could be
evoked. There were three Sections in Indian Penal Code viz. S. 94, 354 and 509
to deal with such crimes. However, these related laws are framed as an offence
that either amount to obscenity in public or acts that are seen to violate the
modesty of women. While Section 294 IPC is a law applicable to both men and
women, the latter two are specifically oriented towards women.
Constitutional Safeguards Against Sexual Harassment at Workplace
The Constitution of India ensures and guarantees every individual the right
to practice any profession, or to carry on any occupation, trade or business
as enshrined under Article 19 (1)(g). Every woman has a constitutional right to
participate in public employment and this right is denied in the process of
sexual harassment, which compels her to keep away from such employment.
Sexual harassment of woman at the place of work exposes her to a big risk and
hazard which places her at an inequitable position vis-à-vis other employees and
this adversely affects her ability to realize her constitutionally guaranteed
right under Article 19(1)(g) of Constitution of India. Sexual harassment of
women at workplace is also a violation of the right to life and personal liberty
as mentioned in Article 21 of Constitution of India that no person shall be
deprived of his life or personal liberty.
Right to livelihood is an integral facet of the right to life. Sexual harassment
is the violation of the right to livelihood. For the meaningful enjoyment of
life under Article 21 of the Constitution of India, every woman is entitled to
the elimination of obstacles and of discrimination based on gender. Since the
Right to Work depends on the availability of a safe working environment and
the right to life with dignity, the hazards posed by sexual harassment need to
be removed for these rights to have a meaning.
The preamble of the Constitution of India contemplates that it will secure to
all its citizens- Equality of status and opportunity. Sexual harassment
vitiates this basic motive of the framers of the Constitution of India.
The concept of gender equality embodied in our Constitution would be an
exercise in ineffectiveness if a woman’s right to privacy is not regarded as her
right to protection of life and liberty guaranteed by Article 21 of the
Constitution of India. In view of the fact that sexual harassment of women at
the workplace violates their sense of dignity and the right to earn a living
with dignity, it is absolutely against their fundamental rights and their basic
Development of Law on Sexual Harassment in India
A fruitful and meaningful life presupposes full of dignity, honour, health and
welfare. In the modem Welfare Philosophy, it is for the state to ensure these
essentials of life to all its citizens and if possible to non-citizens. While
invoking the provisions of Article 21 of Constitution of India, and by referring
to Better to die ten thousand deaths than wound my honour.
The Supreme Court of India in Khedat Mazdoor Chetana Sangath Vs. State of
Madya Pradesh & Ors., 1994 AIR SCW 4026, posed to itself a question if
dignity or honour vanishes what remains of life?
This is the significance of the right to life and personal liberty guaranteed
under the Constitution of India. Article 21 of Constitution of India which forms
the arc of fundamental rights guaranteed under Part -IH of the Constitution of
India enshrines that:
No person shall be deprived of his life or personal liberty except according to
the procedure established by law
Article 21 of the Constitution of India has its origin during the early 13th
century AD in the 39th Chapter of Magna Carta, a Charter of English liberty. It
plays the same role which the ‘Due Process Clause’ plays under the American
Constitution and also under the Japanese Constitution.
The Supreme Court in its interpretation of the ‘right to life’ under Article 21
of the Constitution of India has on many occasions stressed that, the right to
life could not be equated to living out a mere animal existence. [Francis
Coroli Vs. Administrator, Union Territory of Delhi, (1981)1 SCC 608; Olga
Tellis Vs. Bombay Municipal Corporation, (1985) 3 SCC 545]. The right to
life would necessarily imply the right to live with human dignity and would
include those aspects of life that make life meaningful, complete and worth
Gender discrimination has been recognized as an obstacle to the full realization
of the right to life under Article 21 of the Constitution of India. In C.
Masilamani Mudaliar Vs. Idol of Sri Swaminathaswami Thirukoif, 1996 AIR
1697, the Supreme Court held that equality, dignity of person and the right to
development are inherent rights in every human being. For the meaningful
enjoyment of the right to life under Article 21, every woman is entitled to the
elimination of obstacles and of discrimination based on gender. The Supreme
Court reiterated that the State has an obligation to eliminate gender-based
discrimination and to create conditions and facilities conducive for women to
realise the right to economic development, including social and cultural rights.
In Bodhisattava Gautam Vs. Subhra Chakraborty, (1996) 1 SCC 490, the
Supreme Court stated that women have the right to life and liberty under Article
21 of Constitution of India. Similarly, they also have the right to be respected
and treated as equal citizens. The Supreme Court held that offences of rape were
acts of aggression aimed at degrading and humiliating women. Such offences were
crimes against basic human rights and are also violative of the fundamental
right to life under Article 21. The Judges emphasized that the ... dignity of
women cannot be touched or violated. Thereby, the right to life includes the
right of women to live with dignity and to lead a peaceful life.
The Vishaka Judgement Workplace sexual harassment in India, was for the
very first time recognized by the Supreme Court of India in its landmark
judgment of Vishaka & Ors Vs State Of Rajasthan & Ors, AIR 1997 SC
3011. Vishaka & other women groups filed Public Interest Litigation against
State of Rajasthan & Union of India to enforce the fundamental rights of working
women under Articles 14, 19 and 21 of the Constitution of India. The Petition
was filed after Bhanwari Devi, a social worker in Rajasthan was brutally gang
raped for stopping a child marriage. The Supreme Court of India created legally
binding guidelines basing it on the right to equality and dignity accorded under
the Indian Constitution as well as by the UN Convention on the Elimination of
All Forms of Discrimination against Women (CEDAW).
The guidelines were:
- It shall be the duty of the employer or other responsible persons in
workplaces or other institutions to prevent or deter the commission of acts
of sexual harassment and to provide the procedures for the resolution,
settlement or prosecution of acts of sexual harassment by taking all steps
- Sexual harassment includes such unwelcome sexually determined behaviour
(whether directly or by implication) as:
(a) physical contact and advances;
(b) a demand or request for sexual favours;
(c) sexually-coloured remarks;
(d) showing pornography;
(e) any other unwelcome physical, verbal or non-verbal conduct of sexual
- All employers or persons in charge of workplace whether in the 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 workplace should be notified, published and circulated in
appropriate ways. (b) 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. (c) As regards private employer’s 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 workplaces and no woman employee should have reasonable grounds to
believe that she is disadvantaged in connection with her employment.
- Where such conduct amounts to a specific offence under the Indian Penal
Code or under any other law, the employer shall initiate appropriate action
in accordance with law by making a 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. The victims of sexual harassment should have the option to seek
transfer of the perpetrator or their own transfer.
- 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.
- Whether or not such conduct constitutes an offence under law or a breach
of the service rules, an 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
- The complaint mechanism, referred to in (6) above, should be adequate to
provide, where necessary, a Complaints Committee, a special counsellor 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 members 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 Complaints 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.
- Employees should be allowed to raise issues of sexual harassment at
workers’ meeting and in other appropriate forum and it should be
affirmatively discussed in employer-employee meetings.
- 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.
- 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.
Post Vishaka Developments
Pursuant to Vishaka Judgement, the Central Civil Services (Conduct) Rules 1964,
were amended in 1998 to incorporate R. 3C which prohibits sexual harassment of
working woman. The first case before the Supreme Court after Vishaka in this
respect was the case of Apparel Export Promotion Council Vs. A.K Chopra,
AIR 1999 SC 625. In this case, the Supreme Court reiterated the law laid down in
the Vishaka Judgment and upheld the dismissal of a Superior Officer of the Delhi
based Apparel Export Promotion Council, who was found guilty of sexually
harassing a subordinate female employee at the workplace. In this Judgment, the
Supreme Court enlarged the definition of sexual harassment by ruling that
physical contact was not essential for it to amount to an act of sexual
Further the Apex Court in its Judgement in Medha Kotwal Lele & Ors. Vs.
Union of India & Ors, 2013 (1) SCC 297 took cognizance and undertook
monitoring of implementation of the Vishaka Guidelines across the country by
directing State Governments to file affidavits emphasizing on the steps taken by
them to implement the Vishaka Guidelines. Not being satisfied, it directed
States to put in place sufficient mechanisms to ensure effective implementation
of the Vishaka Guidelines.
Finally, the Supreme Court asserted that in case of a non-compliance or
non-adherence of the Guidelines, it would be open to the aggrieved persons to
approach the respective High Courts. The Apex Court also directed that the
Complaints Committee as envisaged in the Vishaka Judgement will be deemed to be
an Inquiry Authority for the purposes of Central Civil Rules, 1964 and the
report of the Complaints Committee will be deemed to be an Inquiry Report under
In pursuance of this direction, the Central Government (Department of Personnel
and Training) amended Central Civil Services (Classification, Control and
Appeal) Rules, 1965, R. 14, sub-r. (2) to incorporate the necessary provision.
Amendment in Indian Panel Code, Post Nirbhaya Case in 2013
- Section 354A. Sexual harassment
- Section 354B. Forcing a woman to undress
- Section 354C. Watching or capturing images of a woman without her
- Section 354D. Following a woman and contacting her or trying to contact
her despite her saying she does not want contact. Monitoring a woman using
the internet or any other form of electronic communication (stalking).
In this century it is very important to have gender sensitive workplace which
would fulfil the needs of its employees specially the needs of the women. Many
workplaces and not still gender sensitive, many people are still not aware about
workplace harassment. Taking this scenario in mind it is essential to develop
capacities and start a process of individual thinking. Rules norms and laws are
always their but enactment and implementation is necessary and to understand
this awareness is needed.
The implementation of sexual harassment Act would ensure safe and healthy work
environment for women. Legal enactment for both male and female is needed for
proper development of our society. Women in our Indian society take legal
reporting as the last resort as they do not want any extra challenge to make
their life more vulnerable.
They fear answering the society and also facing the organization and answering
them. Providing a safe working environment for everyone specially women is the
duty of the employer. While companies should seriously think about their
corporate responsibilities, as companies should provide safe harassment free
environment to every women.
This would lead to companies benefit as everyone can work freely. With the march
of civilisation, the impact of social chances and developmental efforts benefit
the women much less than man. Social and religious reformers, enlightened public
authorities, and women's organisations waged battles against the oppressive
position of women through centuries. But still illiteracy, ignorance,
superstition still persists in some parts of the country resulting in
exploitation of the women labourers.
India is rapidly advancing in its developmental goals and more and more women
are joining the work force. The recognition of the right to protection against
sexual harassment is an intrinsic component of the protection of the women’s
human rights. It is all a step towards providing women independence, equality of
opportunity and the right at work with dignity. Sexual harassment at the
workplace is a social challenge that needs to be addressed. It is important to
enhance the awareness of employers and employees on the existence of forms of
sexual harassment at the workplace, preventive measures, and legal framework on
preventing and addressing sexual harassment.
Dissemination and awareness raising activities should be regularly conducted and
evaluated in order to improve best practice on how to address sexual harassment
in the workplace, and also to forewarn and inform of forms of sexual harassment
to enable potential victims to avoid them. Enhancing training courses on sexual
harassment and providing documentation or a handbook on the prevention of sexual
harassment at the workplace can help in combating it.
While a murder destroys the physical frame of the victim, sexual harassment
degrades and defiles the soul of a helpless woman.
Written By: Damini Singh Chauhan, Semester 9th, The Law School, University of Jammu.