Ten years of the Indian sexual harassment law: A scope for improvement

By Devashish Vashishth

This year marks the 10-year anniversary of the PoSH Act. The act was promulgated on April 22, 2013. Coincidently, it took the legislature 10 years to bring this act into existence. Before the Act, the employees were under the mercy of the Vishakha Judgment.  But after a decade-long period of time to the enactment, the question prevails, whether the act was able to keep its promise of providing a safe and proper work environment to its employees?

The Vishakha Judgment was the first crucial ruling on sexual harassment at workplace, handed down by the Supreme Court in 1997. This historic decision was made with the awareness that it would take many years for lawmakers to decide and legislate on the subject and implement any meaningful legislation. Remarkably, their prophecy regarding the matter was precise. 

The importance of this issue to the legislature is apparent from the delay in the introduction and the long-drawn-out process of passing the bill by the Parliament. The decade-long period of time also didn’t yield any fruitful results, as the act is not much different from the judgement. The act remains restricted to the skeleton of law provided by the judgement and specifies details on various aspects, for instance, defining the terms “aggrieved woman,” “employee,” and expanding on “who can file a complaint as an aggrieved woman or on behalf of an aggrieved woman,” “workplace,” “setting out the concept of “extended workplace,” and “consequences of non-compliance,” among others. In comparison to the judgement, the act fails to prove its importance.

An in-depth analysis of the Act reveals numerous inadequacies. The short title Under Section 1 of the Act reads, “This Act may be called the sexual harassment of women at the workplace”, giving us a taste of gender bias in the first instance. The title in itself is evident enough that the Act is  gender-specific, as it does not addresses to any protection for male employees or employees of the LGBTQIA+ community.  

Men’s sexual harassment cases usually go unreported, however 19% reported experiencing sexual harassment at work. 51% of men in Bangalore reported having experienced sexual harassment, compared to 31% and 28% of those surveyed in Delhi and Hyderabad, respectively.

LGBTQIA+ workplace sexual harassment cases are on a rise too, according to a survey by TUC in 2019, 68% of LGBT employees have been the victims of sexual harassment at work. According to the most current data, sexual harassment at work affects roughly seven out of ten LGBT employees. Two-thirds of these incidents go unreported because LGBT employees fear being fired.

Recently, with the objective of sensitising and including the LGBTQIA+ community, the Supreme Court, under the direction of CJI Justice DY. Chandrachud, has given acceptance for the creation of nine universal rest rooms at different locations in the main building as well as the additional building complex of the Supreme Court. The online appearance portal launched is also gender-neutral.

Additionally, there is a proposal being actively considered for broadening the scope of the Gender Sensitization and Internal Complaints Committee to the Gender and Sexuality Sensitization and Internal Complaints Committee.

From the above landmark initiative, one can observe that the Supreme Court is very sensitive to the issue of gender neutrality and determined to ensure a dignified work environment for the LGBTQIA+ community. This sensitivity and determination ought to be shown in the gender-specific sexual harassment laws. There isn’t much to ask for; simply changing the word “women” to “employee” under Section 1 of the Act in the short title will suffice and stimulate the grave need for gender neutral laws. 

Another inadequacy in the Act is that the present definition of sexual harassment insists more on the accused’s sexual desire. It completely blindsided the question of whether the accused’s act was more driven by sexual desire or by anger or hatred. According to the Act, if the motive is not sexual, then it does not come under the ambit of the definition of sexual harassment, as one action is derivative of another person’s thoughts, and if the thoughts are not sexual and the act itself is sexually unwelcome in nature, it will not be considered sexual harassment.

The job inequalities rooted in gender discrimination also subjects’ women to sexual harassment. According to All India Debt and Investment Survey “Woman in India despite their same educational qualification and work experience as men will be discriminated in the labour market due to societal and employers’ prejudices” it said, though the woman starts on an equal footing they will face economic discrimination, falling behind in salaried, temporary, and self-employment jobs.

According to the Oxfam India report, in India, 98% of the job inequalities between men and women are the result of gender discrimination. One can understand from the above argument that the Act has to change its perspective to be more efficient. It should mainly focus on the dignity of the worker, as the dignity of the worker will inculcate sexual activity and sex-based discrimination. That way, it can promise the safety of not only females but of the third gender as well.

In 2012, the Justice Verma Committee diligently suggested amendments to offences like rape and other sexual offences in our country, which were prominent offences before Nirbhya’s case and required to be resolved on an urgent basis. Sexual harassment in the workplace was given a distinct and more important position in Chapter 4 of the Committee’s Report. The Committee was of the view that in the meantime, while the bill on sexual harassment in the workplace was pending before Parliament, they could propose some suggestions that could later be taken into consideration to further strengthen anti-sexual harassment laws. But their efforts ended in vain, as no deliberation was given to the recommendations.

The Committee’s recommendations necessitated establishment of Special court or employment tribunal following a summary procedure for the disposition of complaints in order to speed up the resolution of disputes.  The Committee’s recommendations were valuable since Labour Courts-Cum-Industrial tribunals are already burdened with other matters related to employer-employee disputes thus, the sexual harassment cases take time to be addressed and they are not handled with as much sensitivity. The views of the Committee need to be considered for future amendments. 

As one can observe there is more sorrow than bliss for the employee.  The Act requires a new amendment to ameliorate all the present issues. The concerns must be resolved as soon as possible to ensure that everyone works in harmony and without harassment. 

Devashish is a law student at Amity Law School, Noida, UP.

The Analysis (TA) is a legal advocacy and research group working on the issues of environment, health, gender, law and human rights. Feel free to share your submissions with us at contact@theanalysis.org.in

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