INTRODUCTION
Sexual Harassment can be seen as a complex issue that undermines the dignity of a woman. It adversely affects individuals, society, and organisations. However, various laws have been promulgated over the last few decades, but still, women continue to be discriminated against in various sectors. The Constitution provides various protections for women and guarantees equal status for both men and women. However, women are still considered a vulnerable group despite their significant contributions to our country’s economic growth. She is still not given the value and the respect she deserves. The Indian Laws are favourable, but when it comes to their implementation, there is no reliable or effective administrative mechanism. The protection against sexual harassment and the right to work with dignity are globally accepted, even in international conventions, for instance, the Convention on the Elimination of All Forms of Discrimination against Women. (CEDAW) 1979, which India also ratified in 1993. This convention provides that every country that has ratified it may enact laws to ensure women’s equality and secure their human and fundamental rights on par with those of men.
Sexual harassment creates a very hostile environment for the women, and it violates their basic right to equality, life and liberty. The question that arises is whether sexual offences against women in India a usual phenomenon? Women have suffered sexual harassment and assault in various ways either at their workplace or at home or in colleges. Crimes specially against women is not new. Since human life women have been victims of ill treatment, torture, exploitation and humiliation. Crimes against women have never been given much importance and weightage in the literature of the social problems, and this fact has been ignored for a very long time, and this is why they still face problems as there is no proper sensitization.
Women have been easy targets and they experience direct violence. They face different forms of violence in their day to day lives. In India, the status of the women is the lowest from pre – historic times to modern times. However, the women have entered a new era since the Constitution’s main objective is the principle of equality1. But the real picture is somewhat different, and women are still facing exploitation which has become a menace to our society. Sexual offences against women is a broad notion which incorporates rape, prostitution etc. There have been studies which shows that women’s participation in the economic sphere and politics has led them to be more vulnerable as a group and they are more prone to crimes. It is also seen that it is the marginalized section of the society which borne the rise in crimes. There are numerous crimes which goes unreported due to failure in the legal machinery or due to the stigma attached to it or due to lack of trust. The crimes against women can be seen due to imbalance in the society and due to the roots of male dominance. There has been ruthless male domination in India since the pre – historic times. Women were considered as chattels and objects.
Human capabilities are masked due to discrimination and it also de empowers an individual from leading a dignified life. The studies show that a significant percentage of women face or are subjected to crimes such as torture, molestation, eve teasing etc. Due to urbanization and industrialization, the traditional society has opened and now women are taking up more and more jobs in order to earn their livelihood. At the place of work also the employers are exploiting women in regard to providing equal opportunities, promotions, equal wages etc. The women are facing problems of sexual harassment even at their workplace and it is even worse for the lower socio-economic groups. It is due to their social identity, status and their caste that they are subjected to assaults. They are treated as property of men and to be protected by them and they are considered as private property. Sexual violence in India against women is also due to political disorders and at the time of partition hundreds of women were abducted and raped. Sexual offences against women dates back to pre – constitution times and is still prevalent in the society.
Apart from this, women face a greater evil than this that they face sexual harassment at their respective workplace or students face in their respective universities. There has been a sheer increase in the cases of sexual harassment, and a number of cases also go unreported.
Sexual harassment at workplace or at various other institutions has become a usual phenomenon. Most of the women face sexual harassment either by their colleagues, their employees or by their seniors. Women and the girls’ students also face sexual harassment either by the faculty or by other students in their educational institutions. Sexual harassment at workplace or educational institutions is an old problem and women either try to deal on their own or they approach the women’s organization. There was no effective way to curtail this evil, and it was only on 13th August 1997 in Vishaka v Union of India 2in which a significant judgment was pronounced by a 3-judge bench and it laid guidelines for sexual harassment at workplace.
Sexual harassment at workplace is seen as an emerging challenge. Despite various laws and institutions developed for women, however, the studies show that women are still discriminated and they continue to be discriminated in the organized and in the unorganized sectors. Various International agencies have addressed this measure however after United National Fourth World Conference held in Beijing, 1995 called for actions by the government, trade unions and other sectors in order to remove sexual harassment and to which India committed to formulate a national policy on women which will work in every sector and will also act as a defender for the rights of the women.
GUIDELINES ON SEXUAL HARASSMENT IN INDIA
Common laws like CrPC, IPC, Constitution etc. dealt with the cases of sexual harassment in India before proper guidelines were laid down. There were no proper laws laid down for sexual harassment at workplace and the Indian Legal System did not provide an adequate protection to women at workplace. The Maternity Benefit Act, 1961, The Factories Act, 1948 and various constitutional provisions forbids discrimination between men and women workers at the time of promotion, training, transfer or recruitment.
There is no direct legislation for women on sexual harassment at workplace. The general laws provided are either too indirect or too vague. The general laws have its own disadvantages, and the victims are left at the leniency of the general laws which causes delays and high costs. Therefore, there is no direct legislation for sexual harassment at workplace and there are only roundabout legislations which further causes injury or trauma to the victims. It is in the background of these circumstances that the Supreme Court judgement assumes importance in Vishaka v Union of India.
THE SUPREME COURT AS GUARDIAN OF FUNDAMENTAL RIGHTS: VISHAKA V UNION OF INDIA
A significant contribution was made by 3 judges – bench by evolving laws against sexual harassment. The safety and dignity of the women is of prime importance, and it should be ensured which could be done by a proper legislation. The creation of the law and its enforcement is of the legislature and the executive. The judgment in this case filled the gaps which were prevailing for many years as there was no proper mechanism to address the concern of sexual harassment at workplace. In order to protect gender equality for all the working women, the Supreme Court laid down certain guidelines which would be strictly adhered to in all the workplaces. The Supreme Court has defined sexual harassment as any unwelcome sexual determined behaviour as physical contact and advances, request for sexual favours, sexually coloured remarks, showing pornography or other unwelcome physical or verbal conduct of sexual nature. 3If the victim has reasonable grounds to believe that her objection would disadvantage her position in terms of her employment or her salary and it creates hostile working atmosphere, then there could be adverse consequences to this. The guidelines laid down would be followed and would be binding and enforceable till a suitable legislation don’t occupy the same. The guidelines provided are as follows briefly:
• Duty of the employer or other workers in the institutions or in the workplaces: Necessary steps shall be taken by the employers or other responsible workers to deter the commission of sexual harassment acts and to prevent the commission of the act and provide procedure for prosecution, settlement and solution for such acts.4
• Appropriate preventive steps to be taken: Appropriate steps are required to be taken by the employers or other persons of both private and public sector in order to prevent sexual harassment. Both public and private sector should include rules and regulations regarding prohibition of the conduct of sexual harassment and also provide for appropriate penalties against the offender.
• Disciplinary action against the offender: The employer must initiate disciplinary action against the conduct of the offender if it amounts to misconduct according to the service rules.
• Grievance or complaint mechanism: An appropriate complaint or grievance mechanism is required to be created by the employer wherein the victim can bring their respective grievance. The complaint mechanism should ensure disposal of cases timely.
• Complaints Committee: The complaint mechanism should be able to provide the support services, a special counsellor and a complaint committee. Also, it shall be headed by a woman and not less than half of its members shall be woman. The committee should also involve a third party like NGO or any other body which is familiar to the issues of sexual harassment. An annual report shall be prepared by the committee of the concerned government department which shall state the complaints and the actions taken by the committee. The employer and the person in charge are required to comply with the guidelines.
• Initiatives by the workers: The employers can raise their issues of sexual harassment in the employer employee meeting, at workers meeting and at other appropriate forums in order to prevent and control the acts of sexual harassment employee meeting, at workers meeting and at other appropriate forums in order to prevent and control the acts of sexual harassment.
• Awareness: In order to create awareness amongst the employers the employer is required to notify the guidelines in a suitable manner and to enact appropriate legislation which should be displayed and notified with regard to sexual harassment.
• Harassment by the third party: When the misconduct is by a third party or an outsider the employer and the person in charge is required to take appropriate and reasonable steps in order to assist the victim in terms of support or take preventive measures.
• Steps to be taken by the government: The Central and the State government is required to take appropriate steps or measures including legislation and to ensure that guidelines are adhered to by the employers in the private sector.
The Supreme Court played an unparalleled role in laying the guidelines for sexual harassment at workplace. A gap is filled which was existing before this judgement. Since the judgement, several attempts have been made in compliance with the direction of the Supreme Court that the Central or the State government should adopt suitable measures including the legislation keeping in view the guidelines laid down by the judgement. The guidelines for most of the time remained on paper. Vishaka guidelines had been a non- starter for most of the sectors apart from the public sector which were forced by the government and various other educational institutions. A civil suit was filed if the complaint committee failed. The Supreme Court avouch that in case of non-adherence or non-compliance of the guidelines the victim can approach directly to the High Court and in the light of these circumstances there was a need for legislation for better remedy.
THE NEED OF THE LEGISLATION AND THE COMING OF THE ACT
A legislative effort to enact a law on sexual harassment was by coming of The Sexual Harassment at Workplace Prevention Bill,2000 wherein it imposed various obligations on the employer to initiate action against the misconduct either under IPC or any other law and to initiate disciplinary action against whenever there is misconduct. A punishment for five years and twenty thousand rupees was also prescribed or both. 5Another bill was introduced a year later – The Prevention of Sexual Abuse at Workplace, 2001. In this punishment was provided for not less than six months other than the disciplinary action and sexual abuse was defined. In 2002, The Prevention of Sexual Abuse and Harassment of Women and Girls Bill was introduced. In this, the definition of sexual abuse was same as that of the previous bill and the punishment prescribed under this was for 5years and a fine of 5lacs rupees for severe offence and for sexual harassment, the punishment prescribed under this was for 3 years and a fine up to 3lacs. Setting up of special courts was also provided under this. In 2003 another bill was introduced, The Sexual Harassment at Workplace wherein it included self-employed women and children, and it prescribed a punishment up to five years with a fine of twenty thousand rupees. However, none of these bills passed. The NCW drafted a bill on Protection of Women at Workplace under which sexual harassment was defined for the first time which was lacking in the previous bills in 2007. The Union Cabinet cleared the Protection of Women at Workplace,2010 which received a lot of criticism as it failed to meet the approval of a large number of women and activists group. A lot of emphasis was on redressal rather prevention and it provided that the complainant will be punished if the complaint is found frivolous. There is inherent inability in this wherein the victim would be sceptical of alleging an offence against the accused knowing that harassment flows from the position of power and authority. However, the bill was passed with certain amendments and including domestic workers which was previously excluded from the other bills.
Almost after a decade the Sexual Harassment of Women at Workplace Act,2013 was enacted, it was legislated almost after 15 years after the Vishaka judgment. The Act failed to take in a large number of debates that were ongoing. The fate of sexual harassment could have been considered better as other international countries had enacted the Act much before than India. The same approach was taken as laid down in the Vishaka judgment and there was no improvisation by the Parliament and was passed without any debates. The reports of the Justice Verma Committee provided some recommendations while the bill was pending that the complainant would be penalized if the charges were found to be frivolous should be done away with as it defeats the object of the Act. It recommended of establishing a tribunal rather than the complaint committee as the tribunal would be more effective. The Act also does not define sexual harassment properly, the definition under the Act is too broad and there should be gradation of the acts of sexual harassment and the seriousness of the offence needs to be seen. It could have been more comprehensive if it could have borrowed it from other countries. A claim which is a harassing act but not sexual is usually rejected by the courts. Only specific acts of sexual harassment are looked into and not into moral harassment of the victim which might not have sexual conduct but can still be discriminatory against women. In the context of these Vishaka guidelines need to be examined and there is a need to grade the sexual offences and look in the light of #metoo movement and there is a need of a mechanism which can look into different forms of harassment. However, holistic participation by everyone is required.
CONCILIATION IN SEXUAL HARASSMENT CASES: A METHOD OF RESTORATIVE JUSTICE?
The sexual harassment cases in campuses are dealt under Prevention, Prohibition and Redress of Sexual Harassment of Women Employees and Students in Higher Educational Institutions Regulations,2015 governed by UGC. Under this, students are covered unlike the Act and provides the procedure to be followed if the students face sexual harassment. S.10 of the 2013 Act provides conciliation wherein the Internal Committee or for that matter the local committee may before initiating an inquiry against the alleged accused and at the request of the complainant take steps to settle the matter between the complainant and the alleged accused through conciliation, provided that no monetary compensation should be the basis for settling the matter. 6Also, the ICC would provide the copy of settlement to the complainant and to the respondent and where a settlement is arrived at, no further inquiry would be conducted by the ICC or the Local Committee as the case maybe. Similarly, S.5 of the Regulations,2015 provides for the responsibilities of the Internal Complaint Committee wherein the regulations provide mechanism of dispute redressal and back and forth communication to address issues through just and fair conciliation without undermining the dignity of the complainant’s rights in order to reduce punitive approaches which further leads to violence, alienation and a sense of distrust amongst the students whose futures are at stake and who are yet to take off with their careers.
It is however seen that voluntary nature of conciliation is very empowering. The researcher has absorbed that at the student level there should be compulsory conciliation in less heinous crimes in order to make the students aware of the conciliation approach which is a tool of restorative justice. The process of conciliation maximizes the involvement of both the parties. The dialogue between the parties can help heel both the parties especially the complainant. The faculty members should inform the students of the benefits of conciliation and resolving the matter by talking about the issues in a joint session. However, the question that is raised is whether conciliation which a tool of restorative justice is effective in the cases of sexual harassment especially in campuses where punishing the accused would only spoil the career of the student. Conciliation in contrast to the court processes has a level of control and the parties’ choice in relation to the outcome of the dispute. The parties needs and interests are prioritized. While in sexual harassment cases the needs and interest may be very minimal and the need is to punish the offender. The conciliation approach in sexual harassment cases in campuses can have a lot of advantages with reference to its flexibility, accessibility, privacy and focus is more on the control of the party. It can ensure a fair process to both the parties to the dispute. In this regard, the conciliator must have appropriate skills to ensure that issues between the parties are reconciled with the principles of natural justice and fairness.
The conciliators working in this area need to have more broader idea or awareness underlying the allegations raised in the complaint especially in campus areas. However sexual violence does pose some difficulty in the domain of conciliation approach. These behaviours challenge restorative approach to devise strategies so that it can deal with victims and offenders in campuses or in educational universities so that it can inculcate remorse and there is a desire to change which can bring about a balancing power in the crime relationship. It was argued that in the account of “what happened” can be negotiated as it is between the victim and offenders’ perspective whereas in sexual offences it is argued that it is non-negotiable perspectives of his and hers. 7Instead of a lawyer who is attuned to the legal measures there should be community groups, women’s groups and victim support movement who can be heard and produce effective result. The reduction in punitive sanctions and increase in conference procedures and restorative measures for the offence of sexual harassment can be very effective and beneficial in educational institutions.
In academic institutions, the committees should move beyond the legal compliance and resort to measures which can be in the interest of the students and their careers. The Justice Verma Committee recommended to do away with conciliation clause as this provision would undermine the dignity of the victim and however it was not done away with maybe because in minor offences there is no requirement of giving heavy sanctions.
Despite some support for the process, conciliation is by some employers is seen as concession of weakness. Also, it very unclear what sort of cases moves forward and what sort of cases shall move to conciliation as gradation of offence is missing in the Act. Conciliation trivializes the seriousness of the harassment and can make workplace for women more inhospitable. But conciliation is seen as putting a stop to offensive conduct and to continue working without stigma and to obtain some redress for the past injuries. There is criticism regarding some public concerns are not well served by conciliation however other public interest are furthered. The punishments provided in the Act can have detrimental consequences. If the guilt of the student is established, then it is sufficient to disqualify the student from public employment. This process can be beneficial or instrumental in securing a safe workplace, providing an immediate resolution and in maintaining the confidence of the matters. Conciliation as a tool of restorative approach is considered as a very effective way to heel the effected parties legal measures undertaken and conciliation and restorative measures. Further, the chapter II will take us through restorative justice and conciliation which is part of restorative justice, how it emerged, its global impact, how it is better than the criminal justice system and the problems faced India to implement restorative measures.
CONCLUSION
Sexual harassment in India persists as a serious problem, ingrained in society and institutions despite legal and policy efforts. The gap between legislation, such as the Sexual Harassment of Women at Workplace Act, 2013, and effective implementation highlights the core challenge: laws alone are insufficient without systemic change. While legal frameworks exist, they fail to capture the complex and diverse forms of harassment women face in workplaces and schools. Unclear definitions, inadequate enforcement, and social stigma impede effective reporting and the development of solutions, underscoring the core argument that legal tools alone cannot resolve the multifaceted issue. Conciliation offers flexibility and privacy, especially in schools and universities, but risks diminishing the seriousness of misconduct when misapplied. The core argument is that restorative justice through conciliation should be reserved for less severe cases and include safeguards ensuring voluntary and fair participation. Addressing sexual harassment requires more than legal compliance; the main argument is for a cultural shift, institutional accountability, and education. Strengthening systems, refining laws, and fostering awareness are vital to achieving dignity, equality, and justice for women.
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Footnotes
1. Mohd Imran & Dr. Hina Imran, Sexual Offences against Women in India: An Analytical Study Vol-2, Issue-8, 2016
2. AIR 1997 SUPREME COURT 3011
3. AIR 1997 SUPREME COURT 3011
4. Srivastava, S. C. “Sexual Harassment of Women at Workplace: Law and Policy.” Indian Journal of Industrial Relations, vol. 39, no. 3, 2004, pp. 364–390. JSTOR, www.jstor.org/stable/27767912.
5. GEETHA K K. “Bill on Sexual Harassment: Against Women’s Rights.” Economic and Political Weekly, vol. 47, no. 3, 2012, pp. 18–22., www.jstor.org/stable/41419731.
6. POSH Act, S.10
7. Hudson, Barbara. “Restorative Justice: The Challenge of Sexual and Racial Violence.” Journal of Law and Society, vol. 25, no. 2, 1998, pp. 237–256. JSTOR, www.jstor.org/stable/1410689.