Adequacy of Punishment in Sexual Harassment Cases

Introduction:

Women have been facing sexual harassment since times immemorial. Even before the term “sexual harassment” even existed, women had already known for years what it was and what it felt like. As time passed, education and awareness made their way through society and women no longer kept quiet. They started raising their voice and started fighting for what they do not want to suffer in silence. Patriarchy has been a tick that sucked the blood of the concept of ‘equality’ for ages. It is 2021 and women have proved themselves in almost every field that was thought to be ‘male-dominated’. Things are starting to modernise and women are no longer staying at home assuming it is where they belong and it is what they were born to do. It is true, however, that we are “not there yet”. An egalitarian society is still far from reality. Every other day courts come across hundreds of cases with victims who are women and who faced harassment of different sorts. Sexual harassment being the most prominent and disgusting one out of all. Be it work, school or just a public place in general, several women have claimed to have been sexually harassed. Oddly enough, when we think that with time these cases should decrease the very opposite happens. Over the years the laws in India have tried to grant women protection from sexual harassment. Numerous remedies, both criminal and civil have been granted. However, there still are some questions that are needed to be answered. The following article seeks to explore several laws laid down by the judiciary and the history of India’s “inadequate law” period. Is the law still inadequate? What exactly do people have to say about “adequate punishments on sexual harassment” and what is the responsibility of the law on this? Let’s see.

What is Sexual Harassment?

Sexual harassment is any form of unwelcome sexual behaviour that’s offensive, humiliating or intimidating.[1] Most importantly, it’s against law.[2]

The United States Equal Employment Opportunity Commission (EEOC) defines sexual harassment as follows: Unwelcome sexual advances, requests for sexual favours, and other verbal or physical conduct of a sexual nature constitute sexual harassment when submission to or rejection of this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance or creates an intimidating, hostile or offensive work environment.[3]

Sexual harassment has been broadly identified into two forms:

• Quid Pro Quo (‘this for that’): This type of sexual harassment occurs when an individual’s submission to or rejection of sexual advances or conduct of a sexual nature is used as the basis for employment decisions affecting the individual or the individual’s submission to such conduct is made a term or condition of employment.[4]
• Hostile Environment: This type of sexual harassment occurs when unwelcome sexual conduct unreasonably interferes with an individual’s job performance or creates a hostile, intimidating or offensive work environment even though the harassment may not result in tangible or economic job consequences, that is, a person may not lose pay or a promotion.[5]

Examples:

• Inappropriate unwanted touching
• Staring or ogling in a very lascivious or unpleasant manner
• Passing comments and repeatedly cracking sexual jokes
• Straight up requesting for sex
• Unwanted and frequent invitations of wanting to go out on dates
• Asking irritating and unpleasant questions about someone’s personal life or body
• Showing/posting/sending sexually explicit/ pornographic images
• Brushing against an individual very frequently and deliberately

Sexual harassment can take place anywhere like schools, colleges, offices, hospitals etc. It would not be very wrong to say that this tends to happen mostly at workplaces. One more thing to be noticed is that the victim and the wrongdoer can both be from either gender. Sexual harassment does not see gender. Not only a woman, but a man can also be the victim. Similarly, not only a man but also a woman can be the perpetrator. However, it is very saddening as well as infuriating to see that in India the law recognizes and punishes sexual harassment only against women.

Inadequate Law & Punishment

In the late 1990s, a government employee under the Rajasthan State government whose name was “Bhanwari Devi” tried to stop child marriage from taking place since she was also a worker of the Women Development Programme. However, for doing so, she was raped in front of her husband by the landlords of that community. The trial court absolved the wrongdoers of their deeds which led to a stirring and with the help and involvement of many women’s groups a petition was filed in the Hon’ble Supreme Court of India. This case was named Vishakha vs. State of Rajasthan & Ors.[6] This was a landmark judgement and the court stated that every instance of sexual harassment amounts to infringement of fundamental rights guaranteed under Articles 14, 15 and 21 of the Constitution of India. It also leads to an infraction of the ‘Right to freedom’ under Article 19. It was noticed by the court that the existing penal and civil laws in the country were not enough and did not provide adequate protection as well as did not give adequate punishment for sexual harassment. The court knew it would take a lot of time for separate legislation to be introduced on this issue. Therefore, certain guidelines were laid down to ensure that sexual harassment is prevented for the time being. These were:

• Employer’s Duty: It will be the duty of the employer and other such responsible authorities at that workplace or institution to make sure that any type of sexual harassment is not tolerated in any way shape or form. Additionally, it is their responsibility to provide their workers with the procedures and mediums of settlement and prosecution of such deeds.
• Preventive Measures: Be it public or private sector, all employers must take all possible appropriate measures to make certain that the employees have a safe and positive work environment.
• Criminal Proceedings: When an offence has been committed under the IPC or rather under any other law regarding sexual harassment then the boss, without wasting any time shall immediately take appropriate action and submit a complaint to the concerned authorities. Strict disciplinary measures ought to be further taken against the wrongdoer.
• Complaint Mechanism: There must be a complaint mechanism set up for the redressal of the complaint which was made by the employee. This mechanism must ensure quick and timely action on the complaints. A Complaints Committee is an optimal option and whenever needed shall ensure treatment of the matter along with maintaining complete privacy. The committee chairperson should be a woman as well as at least half the members ought to be women.

Case Laws

Medha Kotwal Lele & Others Vs. Union of India & Ors.[7]

This case has helped the previously mentioned ‘Vishaka & Ors. Vs. State of Rajasthan & Ors.’ case to implements all the guidelines that it did by sending notices to every state and union territory to follow the required steps.

Mrs. Rupan Deol Bajaj Vs. Kanwar Pal Singh Gill[8]

This case was responsible for giving a new meaning to the words ‘privacy’ & ‘modesty’ in such a fashion that now any such act that seems to harass or tends to cause any distress or trouble to a woman will be considered an offence.

Apparel Export Promotion Council Vs. A.K. Chopra[9]

In this case, the Apex Court held that sexual harassment is gender discrimination against women. It also said that any superior who attempts to molest any woman will say to have constituted an act of sexual harassment.

Acts in India at present

1. Indian penal code (IPC),1860: Since the provisions earlier were not considered adequate to handle the cases of sexual harassment, amendments were made and certain sections were introduced to address the same strictly.
   • Previous Provisions:
     1. Section 294A[10] states that obscene acts in any public place, singing obscene songs to the annoyance of others will be punishable by law and can result in imprisonment upto 3 months, fine, or possibly either of them. However, the term obscene was not defined specifically.
     2. Section 509[11] states that speaking such a word or making such a move that has the intention to affront a woman and invade her privacy will end in the offender being penalized with incarceration for a period of about 2 to 3 years max. along with fine. However, the term ‘modesty’ was not defined specifically.
   • Latest Provision
     • Section 354A[12] states that a man committing any physical contact, advances involving unwelcome and explicit sexual overtures; or demanding or requesting sexual favours; or showing pornography against the will of a woman; or making sexually coloured remarks, shall be guilty of the offence of sexual harassment and will be subjected to a penalty of rigorous imprisonment for a term which may extend to 3 years.[13] This section was introduced in 2013 through an amendment and is the latest addition to the act.
2. The Indecent Representation of Women (Prohibition) Act, 1987[14]: This act aims for the prevention of vulgar or crude portrayal of women via commercials or in broadcasts, written work, art work or in any other way and situations linked thereupon or attending to it. An individual who harasses someone with and through the above-mentioned things will hold liability for a sentence of a minimum of two years in prison.
3. Industrial Employment (Standing Orders) Act, 1946[15]: This act requires employers to establish a set of rules and conditions as standing orders. These standing orders should specify everything from working hours to wages, attendance, holidays etcetera.
4. Since there was no legislation in our country which dealt specifically with the subject of sexual harassment and the constitutional defence measures did not seem to be enough, the “Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013″ was passed.
   Following are the highlights:
   • This act was passed in 2013 with the aim to provide a workplace environment at liberty from sexual harassment through 3 elements i.e. “prohibition, prevention and redressal”.
   • This act encompasses the “whole of India” and is applied to the organized sector as well as the unorganized sectors of the country.
   • The act gives shielding against sexual harassment only for women but sadly enough, not for men. This is very wrong as many surveys and studies show that even men go through sexual harassment at workplaces but all they can do is keep quiet and suck it up because the law itself is not capable enough to provide them with justice.
   • In India, all laws excluding the Industrial Employment (Standing Orders) Act, don’t deal with cases involving sexual harassment against men. In Delhi itself, over 43% of men have reported that they had been sexually harassed by their female employers and colleagues.
   • Even if several improvements have been made as compared to previous acts like specific description and definition of certain important terms, expansion of Complaints Committee in terms of powers, members, compensating mechanism, the procedure followed etc, there are still factors in every topic where changes are required.
   • For example, this act also stated that if the affronted woman for some reason is not able to file a complaint then it can be filed by any other person after taking the woman’s consent who, provided, knows well about the incident. However, since the act also provides safety to women who provide domestic help, a sector where women are not that educated, the act does not provide any provision that allows these women to be made aware and educated vis-à-vis the remedies that have been given to them.
   • There are a lot of improvements to be made in definitions of certain terms as well. Current definitions still have gaps that can be exploited and can lead to a lot of unnecessary litigation.
   • For example, the definition of “sexual harassment” mentioned in this act tends to ignore the possible maltreatment & victimization of the claimant by the employer. In-company governance of complaints can act as a disincentive to the victims. The complainant must not feel that they are forcibly filing a complaint with the committee. A better approach would instead be an introduction of an independent employment tribunal so that complaints can be handled comparatively in a much efficient way.
   • One more thing to be noticed is that the committee is filled with people who do not have any legal qualifications. This means that it will result in a very inadequate team and will obturate justice.

Conclusion

Sexual harassment is a parasite that eats away at the equality, dignity and position of women in our country. For years women have suffered in silence in the absence of adequate laws and punishments for the act. Things have started to change. Women are more independent than ever and don’t fear standing for themselves. Most people when asked about “What should be an adequate punishment for sexual harassment?” often give extreme suggestions like a public beating. The adequacy, however, should depend on the extent of harassment committed. The latest act that has been introduced, ‘Sexual Harassment against women at Workplace Act’, as a new and improved structure is commendable but there’s still a long way to go. It still needs certain alterations to make it more perfect. It is safe to say that this act and many other similar acts are still not adequate mainly because of the absence of important changes that can be made. There is a need to bring changes in provisions that could be more leaning towards the female victim like appeasement & punishment for erroneous or malevolent complaints. Victims must be helped by making them aware and guiding them towards all the available remedial actions. Alternate ways like settlement of the issue by monetary compensation can be taken up by the committees. Most of all, the mentality and behaviourism of this generation must be altered to the point where every individual knows and understands what women go through and how to help them. There is also a need to bring true gender equality and take measures to bring laws to help men who face sexual harassment just like a woman.

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References:

[1] What is Sexual Harassment, https://au.reachout.com/articles/what-is-sexual-harassment

[2] Id at line 4

[3] Legal definitions of sexual harassment, Para 2,  https://hr-guide.com/SexualHarassment/Legal_Definitions_of_Sexual_Harassment.htm

[4] Id under ‘Quid pro quo sexual harassment’

[5] Id under ‘Hostile environment sexual harassment’

[6] Vishaka & Ors vs. State of Rajasthan & Ors , AIR SC 3011 (1997), https://indiankanoon.org/doc/1031794/

[7] Medha Kotwal Lele & Ors. U.O.I & Ors. https://indiankanoon.org/doc/48293767/

[8] Mrs. Rupan Deol Bajaj & Anr. Vs. Kanwar Pal Singh Gill & Onr., (6) SCC 194 (1995), https://indiankanoon.org/doc/579822/

[9] Apparel Export Promotion Council Vs. A.K. Chopra, https://indiankanoon.org/doc/856194/

[10] Section 294A in the Indian Penal Code, https://indiankanoon.org/doc/440731/

[11] Section 509 in the Indian Penal Code, https://indiankanoon.org/doc/68146/

[12] Section 354A in the Indian Penal Code, https://devgan.in/ipc/section/354A/

[13] Id under points 1 & 2

[14] The Indecent Representation of Women (prohibition) Act, 1986, https://indiankanoon.org/doc/34053555/

[15] The Industrial Employment (Standing Orders) Act, 1946, https://indiankanoon.org/doc/1376794/