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 and fundamental right. Indeed, the Constitutional doctrine of equality and personal liberty is contained in Articles 14, 15 and 21 of the Indian Constitution. 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..
Sexual Harassment at workplace is an extension of violence in everyday life and is discriminatory and exploitative, as it affects women’s right to life and livelihood. Sexual harassment constitutes a gross violation of women’s right to equality and dignity. Sexual harassment at workplace is often regarded 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.
In India, for the first time in 1997, a petition was filed in the Supreme Court to enforce the fundamental rights of working women, after the brutal gang rape of Shamwari Devi a social worker from Rajasthan. As an outcome of the landmark judgment of the Vishaka and Others v State of Rajasthan, the Hon’ble Supreme Court had laid down certain guidelines for the prevention of sexual harassment of woman at workplace. Later, 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 women. The Act is also unique for its wide ambit as it is applicable to the organized sector as well as the unorganized sector.
According to the said Act, 2013 “Sexual Harassment” includes anyone or more of the following unwelcome acts or behaviour (whether directly or by implication), namely:
- Physical contact or advances;
- A demand or request for sexual favours;
- Making sexually coloured remarks;
- Showing pornography;
- Any other unwelcome physical, verbal or non-verbal conduct of a sexual nature
The impact of sexual harassment at the workplace is far-reaching and is an injury to the equal right of women. Not only does it impact her, it has a direct bearing on the workplace productivity as well as the development of the society.
the said Act is applicable on hospitals, nursing homes, diagnostics centres, etc. as the same are workplace employing more than 10 employees.
The SHWW Act, 2013 provides for two kinds of complaints mechanisms: Internal Complaints Committee (ICC) and Local Complaints Committee (LCC). Every workplace where there are more than 10 employees, then it is the responsibility of the employer to constitute Internal Complaints Committee (ICC) in the said workplace as per Section 4 of SHWW Act, 2013.
Further, as per Section 6 of SHWW Act, 2013 every District Officer has to constitute a Local Complaints Committee in the concerned district.
The limitation period for filing the complaint of sexual harassment at workplace either to the Internal Complaints Committee (ICC) or the Local Complaints Committee (LCC) is specified in Section 9 of SHWW Act, 2013 which is 3 months from the date of incidence and in case of series of incidents, then within a period of 3 months from the date of the last incident. However, the complaint can be filed after a period of 3 months provided the complainant gives cogent reason for the delay in filing the complaint but the ICC or LCC can extend the limitation but not more than 3 months.
Apart from the Sexual Harassment At Workplace Act, 2013, the victim can also make a police complaint under various provisions of Indian Penal Code, 1860 such as Section 294 (Obscene acts and songs), Section 354 (Assault or criminal force to woman with intent to outrage her modesty) Section 354A (Sexual Harassment), Section 354B (Assault or use of criminal force to women with intent to disrobe), Section 354C (Voyeurism), Section 354D (Stalking(, Section 370 (Trafficking), Section 376 (Rape), Section 376A (Rape resulting in persistent vegetative state), Section 376AB (Rape on a woman under 12 years of age), Section 376B (Sexual intercourse by wife during separation), Section 376C (Sexual intercourse by a person in authority), Section 376D (Gang Rape), Section 376DA (Women under the age of 16 years is raped), Section 376DB (Woman under the age of 12 years is raped by one or more persons), Section 376E (Repeated offender), Section 503 (Criminal Intimidation), Section 509 (Word, gesture or act intended to insult the modesty of woman), etc.
It is important to note herein that penetration is not necessary for constituting rape and ‘Consent’ means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act. A woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity. Consent is immaterial if the age of victim is below 18 years.
Indecent Representation of Women is also a punishable act. “Indecent representation of women” means the depiction in any manner of the figure of a woman, her form or body or any part thereof in such a way as to have the effect of being indecent, or derogatory to, or denigrating, women, or is likely to deprave, corrupt or injure the public morality or morals. If an individual harasses another with books, photographs, paintings, films, pamphlets, packages, etc. containing the “indecent representation of women”, they are liable for a minimum sentence of 2 years.
Apart from sexual harassment of woman at workplace, even if the woman is sexually harassed at any other place, then also the woman can lodge a police complaint against the offender under various section of IPC. If a woman upto the age of 18 years is subjected to any kind of sexual harassment, then the police complaint can be lodged under the provisions of Protection of Children from Sexual Offences Act, 2012.
There is a myth that there is no limitation period in filing a police complaint. As per the provisions of Section 468 of Criminal Procedure Code, 1973, no court can take cognizance of the offence of the category as specified hereunder, after the expiry of the period of limitation:
- Six months, if the offence is punishable with fine only
- One year, of the offence is punishable with imprisonment for a term not exceeding one year
- Three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three year.
However, the period of limitation as mentioned above can be condoned by the Court if the delay in filing the complaint has been properly explained. There is no bar on limitation for filing the complaint and for the Court to cognizance of the offences which are punishable with imprisonment exceeding 3 years.
Also, the period of limitation in relation to offences which may be tried together shall be determined with reference to the offence which is punishable with more severe punishment or with most severe punishment.
The period of limitation as mentioned above starts from the date of the offence or from the date when the aggrieved person comes to know about the commission of the offence or from the date when the aggrieved person comes to know about the offender. In case of continuing offence, the period of limitation starts from the date on which last offence was committed.
It is well established that ensuring safe working conditions for women leads to a positive impact on their participation in the workforce and increases their productivity, which in turn benefits the nation as a whole. Economically, empowered women are key to the nation’s overall development and this can only be achieved if it is ensured that women’s workspaces across all sectors and al over the country have a safe and secure environment for work.
