Wolves at the Workplace
http://www.lawabidingcitizen.in/2018/10/wolves-at-workplace.html
A majority of working women experience sexual harassment.Very few speak up.
In a 2002 survey done in five states by Sakshi, a Delhi NGO, 80% of respondents said that they, or someone they knew, experienced sexual harassment at the workplace, Such behaviour cuts across social strata and professions doesn't stop at any level. It's precedent even in fields like journalism, where women are often seen as tough and aware. A Press Institute of India (PII) study* on the status of Women Journalists reported that " sexual harassment emerged as a major concern of most respondents" with 22.7% saying that they had to "put up with sexist remarks/gestures" at the work place. Of these women, 31.5% said it had " seriously" undermined their confidence and affected their work. Even so, only 15.2% of the women harassment made a formal complaint.
Dr. Deepti Bhatnagar, professor of organisational behaviour at Ahmedabad's IIM analyses this widespread reluctance to complain: " some victims are too traumatized to report an incident, or embarassed to tell their colleagues, fearing that they will be blamed and ridiculed. Others believe that our work culture expects a woman to be a 'good sport' because such things are 'only normal' in a male-dominated workplace. Women often wonder if they'd be over-reacting of they complained. They also believe that the organisation will not take their complaints seriously and that nothing will happen to the perpetrator."
Not surprising, Even 10.8% of the sexually harassed women journalists in the PII survey said that they didn't complain because they feared intimidation, victimization or losing their jobs, while 40.2% felt their complaints would not be taken seriously. Women also fear negative consequences and reprisal ranging from social isolation to " punishment postings" and shelving of promotions.The tragedy is that these fears are based on experiences.
Most Indian women grew up with a lot of "eve- teasing" and unwanted attention so much that they learn to take it for granted. Often women are unaware that harassment has taken place, because it is indirect or involves a lewd remark. And when it is direct, but not physical, when indecent proposals are made or sexual favours asked for, they wonder if the matter is serious enough to report.
However, currently India is witnessing a massive awakening, with several women calling out their sexual offenders, mainly from the media and entertainment industry. Thanks to the #Metoocampaign initiated by Taran Burke in 2006 to promote "empowerment through empathy".
In 2017, actress Alyssa Milano encouraged spreading the hashtag #MeToo, to attempt to draw attention to sexual assault and harassment And after a year of fits and starts, India’s #MeToo movement has spread like a wildfire forcing several powerful men out of their leadership positions. Not only the survivors are notably being believed but also action is being taken against the sexual perpetrators this time. These men have long enjoyed the glory of their powerful positions and now is the time to face the consequences for their actions.
Here are the Indian celebs who have been accused as part of the #MeToo campaign in India:
1. Varun Grover: Award-winning lyricist and writer Varun Grover was called out by a former student of Banaras Hindu University for misbehaving with her in 2001 on the pretext of working on a play.
2. Alok Nath: Vinta Nanda, a veteran writer-producer of the avant-garde 1990s' show "Tara" fame, has accused actor Alok Nath -- known for his "sanskaari" on-screen image -- of sexually violating her almost two decades ago.
3. Gaurang Doshi: Bollywood actress Flora Saini, who played the role of the ghost in the recently released Stree with Rajkummar Rao and Shraddha Kapoor in the lead, has come forward to share her story of assault and harassment at the hands of producer Gaurang Doshi.
4. Nana Patekar: It all started with Tanushree Dutta talking about actor Nana Patekar's inappropriate behaviour on the film set of Horn Ok Pleasss 10 years ago.
5. Vivek Agnihotri: Dutta also alleged that filmmaker Vivek Agnihotri behaved inappropriately towards her while shooting a 2005 movie. Agnihotri's lawyer denied the "frivolous" claims.
6. Vikas Bahl: Kangana Ranaut, an actress who worked with Bahl on "Queen", his 2014 hit film touching on female empowerment, came out and said that the director would "bury his face in my neck and hold me really tight".
7. Utsav Chakraborty: A Mumbai comedian, Utsav Chakraborty, last week found himself at the centre of a Twitter storm accusing him of sending lewd messages to women and young girls such as requesting topless photos.
8. Chetan Bhagat: Chetan Bhagat, one of India's top-selling authors, got himself embroiled in the movement when a woman shared screenshots of WhatsApp conversations between them. The author then went on to issue an apology on Facebook.
9. Rajat Kapoor: Actor Rajat Kapoor has been called out for alleged sexual harassment on Twitter with two women accusing him of inappropriate behaviour.
10. Kailash Kher: A female journalist has accused singer Kailash Kher of harassment. She said: "This creep kept his hand on my thigh."
11. MJ Akbar: Minister of state for external affairs, has faced allegations of sexual harassment from the time of his editorial stints in well-known news publications. Seven women journalists have accused him.
12. Mayank Jain: Business Standard (BS) reporter Mayank Jain, who was accused of sexual harassment, has resigned from his role.
13. Gautam Adhikari: A former editor at TOI and former editor-in-chief of DNA, Gautam Adhikari has resigned from his post as senior fellow at the Center for American Progress in Washington DC. His profile page on the centre’s website is currently blank and his name is not there on the centre’s list of experts.
14. Prashant Jha: Prashant Jha, following allegations of sexual harassment, stepped down as the political editor and bureau chief of the Hindustan Times (HT).
15. KR Sreenivas: Editor for TOI in Hyderabad, has been sent on an “administrative leave” after seven women petitioned TOI to take action in light of the sexual misconduct allegations against him. Many women also chose to speak publicly about their horrific experiences. The petition also contains screenshots and testimonies from each petitioner describing their alleged encounters with him.
16. Mukesh: 19 years after it happened, Tess Joseph, casting director, has come out with her #MeToo story, against Malayalam actor and CPI (M) MLA Mukesh Kumar. Mukesh had called her room multiple times and changed her room to be next to his, Tess tweeted.
Sexual harassment is not about personal relationship between men and women. It is a manifestation of abuse of power.
What's the legal recourse?
In India, in 1997, the Supreme Court formulated the Vishakha Guidelines (in Vishakha v. State of Rajasthan & Ors., AIR 1997 SC 3011) which requires that employers create awareness about sexual harassment, have a complaints mechanism in place; initiate disciplinary action and criminal perpetrators. The Guidelines also suggest that employers have a committee headed by a woman, with atleast half its members comprising women.
In 2013, the Government of India notified the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act. Consistent with the Vishaka judgment, the Act aspires to ensure women’s right to workplace equality, free from sexual harassment through compliance with the elements of Prohibition, Prevention and Redressal.
The scope of workplace in this Act is inclusive in nature. It includes:
(i) Any department, organization, undertaking, establishment, enterprise, institution, office, branch or unit which is established, owned, controlled or wholly or substantially financed by funds provided by the appropriate government or the local authority or a government company or corporation or a co-operative society
(ii) It also includes private sector organization or a private venture, undertaking, enterprise, institution, establishment, society, trust, non-governmental organization, unit or service provider carrying on commercial, professional, vocational, educational, entertainment, industrial, health services or financial activities including production, supply, sale, distribution or service.
(iii) Hospitals or nursing homes.
(iv) Any sports institute, stadium, sports complex or competition or games venue, whether residential or not used for training, sports or other activities relating thereto.
(v) Any place visited by the employee arising out of or during the course of employment including transportation provided by the employer for undertaking such journey.
(vi) In relation to unorganized sector, workplace means an enterprises owned by individuals or self-employed workers and engaged in the production or sale of goods or providing service of any kind whatsoever and where the enterprise employs workers, the number of workers is less than ten.
The term sexual harassment under the Act covers one or more unwelcome acts or behaviour whether directly or by implication. Such unwelcome acts or behavior are:
(i) physical contact and advances or
(ii) a demand or request for sexual favours or
(iii) making sexually coloured remarks or
(iv) showing pornography or
(v) any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
The following circumstances, among other circumstances, if it occurs or is present in relation to or connected with any act or behaviour of sexual harassment at workplace may amount to sexual harassment:
i) Implied or explicit promise of preferential treatment in her employment or
ii) Implied or explicit threat of detrimental treatment in her employment or
iii) Implied or explicit threat about her present or future employment status or
iv) Interference with her work or creating an intimidating or offensive or hostile work environment for her or
v) Humiliating treatment likely to affect her health or safety.
Section 3(1) of the Act specifically prohibits the sexual harassment of any woman at a workplace.
The complaint of sexual harassment at workplace may be made in writing to the internal committee if it is constituted or the local committee, in case it is not so constituted with in a period of three months from the date of incident and in case of a series of incidents with in a period of three months from the date of last incident. The committee is also empowered to extend this time limit of three months if it is satisfied that the circumstances were such which prevented the woman from filing a complaint within the said period. If woman cannot file complaint in writing then the committee shall render all reasonable assistance to the woman for making the complaint in writing. The complainant shall submit to the complaints committee six copies of the complaint along with supporting documents and the names and addresses of the witnesses. If aggrieved woman is unable to make a complaint on account of her physical or mental incapacity or death or otherwise, her legal heir or such other person as may be prescribed may make a complaint under this section.
Complaints committee under the Act means Internal Committee or the Local Committee as the case may be. The Act provides for the constitution of internal complaints committee.
Other laws in relation to sexual harassment at workplace
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Apart from the specific Act on Sexual Harassment against Women at Workplace there are other legislative protections available against sexual harassment in India.
These are:
1. Industrial Employment (Standing Orders) Act, 1946
It is a central enactment which, inter alia, requires an employer to define and publish uniform conditions of employment in the form of standing orders. The standing orders should contain terms of employment including, hours of work, wage rates, shift working, attendance and late coming, provision for leaves and holidays and termination or suspension/dismissal of employees. It applies to every industrial establishment wherein one hundred or more workmen are employed, or were employed on any day of the preceding twelve months.This Act extends to the whole of India.The Standing Orders Act prescribes Model Standing Orders, serving as guidelines for employers and in the event that an employer has not framed and certified its own standing orders, the provisions of the Model Standing Orders shall be applicable. The Model Standing Orders not only define ‘sexual harassment’ in line with the definition under the Vishaka Judgment, but also envisages the requirement to set up a complaints committee for redressal of grievances pertaining to workplace sexual harassment. It is interesting to note that ‘sexual harassment’ is not limited to women under the Standing Orders Rules.
2. Indian Penal Code, 1860
Conduct that may be construed as sexual harassment, can also constitute an offence and can be penalized under the IPC. Prior to the Criminal Amendment Act, 2013 it was brought within the ambit of Section 354 which made any act outraging the modesty of a woman a crime. After the said amendment, Section 354A has been inserted to make sexual harassment a particular offence. The following sections address the offence of sexual harassment:
Section 294: Obscene acts in any public place, singing obscene songs to the annoyance of others.Punishment for violation of this Section is Imprisonment for a term of up to 3 months or fine, or both.
Section 354 (A): 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.It entails a punishment of rigorous imprisonment for a term which may extend to three years.
Section 509: Uttering any word or making any gesture intended to insult the modesty of a woman and intrudes her privacy.The offender is punished with simple imprisonment for a term which may extend to three years, and also with fine.
3. The Indecent Representation of Women (Prohibition) Act, 1987
An Act to prohibit indecent representation of women through advertisements or in publications, writings, paintings, figures or in any other manner and for matters connected therewith or incidental thereto.If an individual harasses another with books, photographs, paintings, films, pamphlets, packages, etc. containing ‘indecent representation of women’ they are liable for a minimum sentence of two years. According to this 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 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.
Sexual harassment is considered as a violation of a woman’s fundamental right. It is against the human rights standards set at the international level through conventions such as the UDHR or the CEDAW. Prior to the year 1997, India neither had a legislation combating the menace of sexual harassment at workplace nor was there any sturdy judicial pronouncement dealing with the same apart from the Constitutional safeguards. The Sexual Harassment Against Women at Workplace Act as an alternative structure and process is welcome, but needs much alteration. Helping the victims to make informed choices about the different resolution avenues, providing trained conciliators, settlement options by way of monetary compensation, an inquisitorial approach by the Committee must be adopted.
Moreover, the utmost need at this time is a change in the mindset to understand the fears, compulsions, and pressures on women victims. Instead of blaming the victim for having invited such sexual advances, it is important to shift the blame to the perpetrators. The law should also bring within its ambit the situations faced by men as it also goes on to hamper their productivity just like it affects the over-all well-being of an aggrieved woman.
