The #MeToo movement gained momentum in India after Raya Sarkar, a law student, compiled a list of sexual predators in Indian academia. Since then, women from all walks of life have joined the movement to come out and say #MeToo
The #MeToo movement gained momentum in India after Raya Sarkar, a law student, compiled a list of sexual predators in Indian academia. Since then, women from media, entertainment, politics, sports, have joined the movement to come out and say #MeToo.
The Vishakha Guidelines were laid down by the Supreme Court of India in the case of Vishaka vs the State of Rajasthan, wherein the apex court, for the first time, addressed the issue of sexual harassment of women at workplaces. The Supreme Court declared sexual harassment of a working woman at her place of work amounts to a violation of rights of gender equality and right to life and liberty which is a clear violation of Articles 14, 15 and 21 of the Constitution.
Here’s a look at what exactly is sexual harassment under the law, and what constitutes workplace sexual harassment.
According to section 354A of the Indian Penal Code, sexual harassment is- unwelcome physical contact and advances, including unwanted and explicit sexual overtures, a demand or request for sexual favours, showing someone sexual images (pornography) without their consent, and making unwelcome sexual remarks.
It is punishable by up to three years in prison and a fine.
Section 354B of the IPC says forcing a woman to undress is sexual harassment. The punishment entails three to seven years in prison and a fine.
According to Section 354C of the IPC, watching or capturing images of a woman without her consent (voyeurism) is considered sexual harassment. For the first conviction, the punishment is one to three years in prison and a fine; and for more than one conviction, three to seven years in prison and a fine.
Section 354D of the IPC says that following a woman and contacting her or trying to contact her despite her saying she does not want contact and monitoring a woman using the internet or any other form of electronic communication (stalking) is considered sexual harassment. For the first conviction, the punishment is up to three years in prison and a fine. For more than one conviction, punishment is up to five years in prison and a fine.
According to 13 Section 509 of the IPC, insulting the modesty of a woman by saying any word or sound or making any gesture which intrudes on her privacy is sexual harassment. It is punishable by up to three years in prison and a fine.
5 Section 1 talks about the sexual harassment of a child. Showing any object/body part, making a child exhibit her body or threatening to use a child to create sexual images (pornography) is considered child sexual harassment and is punishable by up to three years in prison and a fine.
The Ministry of Women and Child Development, Government of India (MOW&CD, GOI) has succinctly identified five parameters of workplace sexual harassment, viz., sexual, subjective, unwelcome, impact and power.
According to the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, sexual harassment includes any one or more of the following unwelcome acts or behaviour (whether directly or by implication):
1. Physical contact and advances
2. A demand or request for sexual favours
3. Making sexually coloured remarks
4. Showing pornography
5. Any other unwelcome physical, verbal or non-verbal conduct of sexual nature
Workplace sexual harassment is governed primarily by the legislation titled The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal Act), 2013 (referred to generally as "POSH").
The MOW&CD, GOI goes a step further to elaborate for concerned persons and organizations that the below behaviours would also inter alia constitute sexual harassment at the workplace:
1. Serious or repeated offensive remarks, such as teasing related to a person's body or appearance.
2. Inappropriate questions, suggestions or remarks about a person's sex life
3. Displaying sexist or other offensive pictures, posters, MMS, SMS, WhatsApp, or e-mails.
4. Invasion of personal space (getting too close for no reason, brushing against or cornering someone).
5. Persistently asking someone out, despite being turned down.
6. Stalking an individual.
7. Controlling a person's reputation by rumour-mongering about her private life.
In an article in The Indian Express, Supreme Court advocate Vrinda Grover says that if the sexual harassment took place while the woman was employed by the organisation, she can file a complaint even after she has left. If she had never been employed by the organisation, she may file a complaint with the Internal Complaints Committee (ICC) of the organisation where the man works, if the harassment has taken place in the course of work, or in relation to the man’s professional activities.
If the sexual harassment is committed on “neutral territory” the woman can file a complaint with the Internal Committee of her organisation or the perpetrator’s.
If the incident of sexual harassment has occurred between two colleagues of the same organisation, but outside work premises, the employer must address this issue as the perpetrator’s behaviour may extend to the workplace as well, and the employer is legally bound to provide a safe work environment.
The following circumstances also amount to sexual harassment under the Act:
1. Implied or explicit promise of preferential treatment in her employment
2. Implied or explicit threat of detrimental treatment in her employment
3. Implied or explicit threat about her present or future employment status
4. Interference with her work or creating an intimidating or offensive or hostile work environment for her
5. Humiliating treatment likely to affect her health or safety
The sufferer would be entitled to compensation determined by the Internal Committee based on its assessment of the trauma, pain, and distress suffered by the victim, loss of career opportunities and medical expenses incurred by the victim be it for physical or psychological suffering. The compensation is deducted from the pay of the person held guilty of sexual harassment.
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