Sunday, 5 April 2020

Recourse To Law For Sexual Harassment

Updated: October 4, 2014 3:55 pm

The increasing incidences of sexual harassment at Workplace in India have emerged as a major concern for the society. Though the legal definition of sexual harassment does not distinguish a particular sex but it is predominately experienced by women at workplace. Recent cases against retired Supreme Court Justice A K Ganguly and Tehelka’s Managing Editor Tarun Tejpal have sparked a fuming debate all across the country on how safe women actually are at workplace.

On one hand, there are talks of women liberalisation and their changing position in the society while on the other they continuously face humiliation. This comes as a great setback to the efforts of those who are striving for gender equality in the society.

Taking note of the inadequacy of the then civil and penal laws to provide protection to women at workplace, the Supreme Court of India laid down the Vishaka guidelines on August 13, 1997 for prevention and redressal of sexual harassment and exploitation as well as their abidance under Article 141 of the constitution. The book Sexual Harassment at Workplace is written keeping in mind the fact that the issue of sexual harassment at the workplace attracts five key areas of law: Constitutional law, Labour Law, Service law, Civil law, and Criminal law. Particular emphasis has been given to the universe of employment law, and wherever necessary its application to other situations and legal domains is also examined.

Chapter 1 of the book discusses the law from jurisdictions throughout the world on the definition of sexual harassment and related issues and contextualises the definitions under Indian law. It also provides illustrations of types of sexual harassment, of wrongful ways in which employer’s may react to complaints of sexual harassment at the workplace, and outlines reasons why sexual harassment is often not reported. Chapter 2 contains a discussion of sexual harassment at the workplace as violation of fundamental rights under the Constitution of India and of remedies available under Constitutional Law. Chapter 3 examines the scope and content of sexual harassment at the workplace as a civil wrong, scrutinising the position in other jurisdictions and juxtaposing this with the law in India. Standing distinct from all other areas of the law is Criminal Law. The Supreme Court in numerous decisions recognised that sections 354 and 509 of the Indian Penal Code, 1860 cover s sexual harassment of women at workplace. In 2013, a new provision, section 354A IPC, has been introduced specifically on ‘sexual harassment’. These and other provisions of the IPC which may be invoked in cases of sexual harassment at the workplace are discussed in Chapter 4.

Chapters 5, 6 and 7 examine the law relating to sexual harassment at workplace in the employment domain. Chapter 5 studies the content, potential and limitations of the key provisions of the 2013 Act and Rules. Labour Law which covers employment in the private sector is an area of law which is based on sharp distinctions between workers and employers. In this area of law, managers cannot be subject to disciplinary action. Nevertheless, it provides an important terrain of employment law in India where rights of workers are adjudicated. Service Law covers the civil service sector, and provides a system of vigilance in which even the senior-most officials can be subject to discipline. Labour Law and Service Law are covered in Chapter’s 6 and 7 respectively.

In this book, employer liability is treated separately in Chapter 8 in order to emphasise the importance of employers taking responsibility for proving a safe and healthy work environment for their employees. Given the number of remedies available under Indian law for a complaint of sexual harassment at workplace, this book seeks to set out relevant provisions under each area of the law described above, and to provide the reader with a concise analysis of the remedies available under each.

By Nilabh Krishna

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