SEXUAL HARASSMENT LAWS IN INDIA AND USA AND ITS IMPLEMENTATION

In this article, the author has analysed the sexual harassment laws in India and USA. She has compared the relevant laws in both the countries and has given an elaborate analysis of the same.


INTRODUCTION


Sexual harassment is defined as uninvited sexual approached, requests for intimate gestures, and other oral or physical conduct of an erotic nature when either:[1]

  • The manner is made as a prerequisite of an individual's employment, education, living environment, or participation in a community.[2]

  • The admission or declination of such a plan is used as a mode that affects the decision of an individual’s employment, education, living environment, or participation in a University community.[3]

  • The act affects an individual's employment or academic performance or creates an intimidating, hostile, or offensive environment for that individual's employment, education, living environment, or participation in a University community.[4]

Sexual harassment is one of the most poisonous problems that society is facing today.[5] The term “sexual harassment” was not used till the 1970s but since it is coming up in the public forum, the concept has briskly developed and broadened. Sexual harassment can be broadly defined as ‘an unwelcome sexual advance that leads to the creation of a hostile and offensive work environment for a person’.[6] Sexual harassment of women at working place is a menace across the planet plunging the quality of working life, jeopardizing the welfare of women, undermining gender equality, and imposing costs on firms and organizations.[7] Sexual harassment is a form of gender inequity.[8]

“The Indian judicial experience with sexual harassment started with the case of Vishaka v. State of Rajasthan[9]. The case dealt with the brutal gang rape of Bhanwari Devi, a social worker who was working to spread awareness to end child marriage. The court decided to use this opportunity to create a protective framework for the female workforce of this country, an area where there had been huge lacunae in Indian Law. Thus comprehensive guidelines were issued by the Supreme Court to ensure that the female workforce of this country is protected from sexual violence and sexually charged gender-discrimination in the workplace.”[10]


After the case of Vishakha v. State of Rajasthan, the guidelines for the protection of the rights of the women at the workplace were laid down and different acts were enacted. There have been many laws laid down for the protection of women at the workplace, but still, the cases of the sexual harassment have been increasing day by day.

ANTI-SEXUAL HARASSMENT LAWS IN INDIA AND IN USA – A COMPARISON


INDIA

In India, due to the patriarchal society, women have always been inferior and also have been a victim of violence. They have always been under the rule of patriarchal society mainly be due to the customs and usages, culture, society, and the people around. Women have always been considered as an intrinsic part of the family whose work is to serve the family and do the household work. They have been denied education and the dignity of life. In sexual harassment cases, the torture may be permanent or temporary depending upon the mental conditions of the victim and the ability to cope up with the situation and also the lack of social support.

Looking into the overall economic and social conditions of the society and also the impact of sexual harassment on the victims, protection has been provided to the victims under various statutes:


1. CONSTITUTION OF INDIA

The Constitution of India has laid down many provisions that bring equality between men and women. Article 14 ensures equality among the equals and the protection of the law. Article 15 prohibits discrimination on various grounds against women and also protects the rights of the women especially. Article 16 provides equal opportunity for public employment to both men and women.

2. INDIAN PENAL CODE, 1860

Section 354 (A)[11]: A man committing any offense which includes any physical contact with a woman, sexual remarks, unwelcomed gestures, then it will amount to sexual harassment. Violation of the section will lead to rigorous imprisonment of a term extending to three years, fine or both.

Section 209[12]: Indecent acts in any public place, singing indecent songs to the annoyance of others shall be held liable and punished with imprisonment for a term of up to 3 months or fine, or both.

Section 509[13]: A man making any remarks, uttering words or gestures and making remarks which outrage the modesty of woman, that amounts to the punishment of 1year imprisonment, fine or both.

3. THE SEXUAL HARASSMENT AT WORKPLACE (PREVENTION, PROHIBITION AND REDRESSAL) ACT, 2013

In 1997, after the commitment of the heinous crime of the gang rape of Bhawari Devi, Sexual harassment at the workplace Act was enacted. In the landmark case of Vishakha v. State of Rajasthan[14], guidelines for the protection of women at the workplace were laid down. In this case, only, the Supreme Court had defined sexual harassment against women. While framing the guidelines in the case, the Supreme Court relied upon the CEDAW, to which India is a signatory. The Vishakha guidelines had made it compulsory for the employers to protect and safeguard their employees from any kind of misbehavior, sexual remarks or gestures and from sexual harassment.

4. THE INDECENT REPRESENTATION OF WOMEN(PROHIBITION) ACT, 1987

If any individual pesters or teases any women through a book, painting, film, etc. which contains an immoral depiction of women, then that person would be held liable for the minimum imprisonment of two years.

5. PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT (POCSO), 2012

This act protects the children from sexual abuse to them. The act was formulated in order to stop the sexual exploitation of the children. The Act also defines the “child” as a person who is below eighteen years of age and has widened the scope of “sexual abuse”. It gives the right to the children to fight for themselves against any wrong done to them through intimation or any other venomous act or conduct.

UNITED STATES OF AMERICA

The USA is one of the most developed nations. Despite being a developed country, the crime rate against women and in general is increasing rapidly and day to day. Keeping in mind, the security of victims from sexual harassment and other such crimes, laws were enacted in the USA.

The government of the USA defines sexual harassment and all the other activities that are inclusive of the term “sexual harassment”. The unwelcomed conduct, remarks, and gestures against anyone would amount to a sexual offense in the USA. The crime can be committed over a man or a woman. The offense is committed irrespective of the gender issues and a person of the same gender can also commit the offense and can be held liable.