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.
THE CIVIL RIGHTS ACT, 1964
The cases of sexual harassment in the United States are filed under Title VII of the Civil Rights Act, 1964. It protects all kinds of discrimination against the people on the basis of color, sex, caste, creed, or religion. The Civil Rights Act was implemented by the Equal Employment Opportunity Commission (EEOC), 1965.
The Act came into force in November 1991 and before that only the “injunctive relief” was the only relief that could be granted to the victims. But, after 1991, there were many cases that were reported. Jenson v. Eveleth Taconite Co.[15], it was the first case against sexual harassment. After this case, there were many cases resolved and the case was set as a precedent. Gradually, the number of cases was increased and federal courts also stated that workplace discrimination will not amount to sexual offense or sexual harassment. In the year 1980, EEOC formulated the “Guidelines on Discrimination because of Sex”. So, any discrimination offense was resolved in accordance with the guidelines given by EEOC.
IMPLEMENTATION OF THE STATUTES – A COMPARISON
In India, there have been various laws that have been enacted for the protection of women against sexual harassment. But, it is a difficult task to implement the laws. Merely framing of laws will not help the country and the victims rather; the proper implementation needs to be adopted. In India, the society, community and people are widely affected. Lack of knowledge in society and among the people becomes the main issue which does not help the upliftment of women.
Women have always been considered as “inferior” part of the society which is meant to be a homemaker. They are governed under the patriarchal society and are not given opportunities to work along. In India, working professionals are not able to work because of a lack of courage. It is the societal pressure and the culture that prevails which restrict them from registering a complaint against the individual to the authority. They are deterred from fighting for their own rights due to the lack of support and courage, and it becomes a major reason as to why there is an increase in the cases of sexual harassment in India day by day.
Indian Penal Code, 1860 had provisions to protect the rights of the women against such offences and Vishakha guidelines were also laid down, which mainly focused on the protection of women from the sexual offences and the harassment. But, according to the news given in economic times clearly states that the knowledge in relation to such offences has grown in the last five years only.[16] After the enactment of the Prevention of Women from sexual offences Act (POWSO), people started having awareness.
The second thing where India lacks is the class action suit. The people were not ready to support each other in their difficult times, and mainly the women. According to them, if a woman suffers from such a crime, then she should sit back at home. Due to such actions, that particular woman suffers those sexual remarks, conducts, gestures, and that torture for years and by the same person.
Whereas, in the USA there are class action suits available to the victims. In the USA, the first case of Jenson[17] was registered in the year 1988 and it was dragged till 1997. Whereas, in India, the identity of the law for the protection became identifiable after 2013 only.
In the Act, there is a lack of clarity of certain provisions and definitions related to such acts and conducts. It is critically analyzed that the faulty provisions in the Act need to be rectified and the scope of the act needs to be widened. The scope of the definition of “sexual harassment” or the unwelcomed act has not been clearly prescribed and it creates a problem. There lies a definitional ambiguity in the act. Hence, India is lacking behind in the implementation of the laws and protection of women. Rather, the employment of women has started decreasing.
LANDMARK CASES OF SEXUAL HARASSMENT AT WORKPLACE IN INDIA
1. VISHAKHA v STATE OF RAJASTHAN[18]
In the given case, the Supreme court had laid down certain guidelines that are to be followed by the employer and also stated that sexual harassment at workplace is violative of Article 14, 19, and 21 of an individual.
2. MEDHA KOTWAL LELE & ORS. v. UNION OF INDIA[19]
In this case, SC held that an aggrieved party has the right to approach the High Court in case of noncompliance of the Vishakha guidelines.
3. MUKESH & ANR v. STATE FOR NCT, DELHI[20]
After this case, on the recommendation of the Justice Verma Committee report, section 354A was inserted to the Indian Penal Code, 1860.
4. Mrs. RUPAN DEOL BAJAJ v. KUNWAR PAL SINGH GILL[21]
The SC in the given case had widened the scope of the terms “modesty” and “privacy”, and considered that if any unreasonable act is done against the women in public or in private, then it would amount to sexual harassment.
CONCLUSION
It can be concluded that in India and the USA, laws and statutes were enacted. But, merely an enactment of the statutes does not suffice the purpose, rather, it is mandatory and necessary that the people need to have awareness regarding such laws and they must know when to act. The societal implications must not affect the class action suits for the victims. The victims must be supported and they must have the courage to fight for themselves. Indians need to be more educated and must have awareness about their rights and duties, and must not lack courageousness. Therefore, India lacks behind mainly because of the lack of awareness and the culture and society. The act must be amended and all the faulty definitions must be amended, and give a clear scope. The ambiguity must be removed from the Act and that will lead to the growth of the country and will decrease the cases of sexual harassment.
References: [1] https://sapac.umich.edu/article/what-sexual-harassment [2] ibid [3] ibid [4] ibid [5] https://www.indialawjournal.org/archives/volume8/issue-1/article9.html [6] ibid [7] SSRN-id3171264.pdf [8] ibid [9] AIR 1997 SC 3011 [10] Supra 5 [11] Indian Penal Code, 1860 [12] ibid [13] Supra 11 [14] AIR 1997 SC 3011 [15] 824 F. Supp. 847 (D. Minn. 1993) [16] https://economictimes.indiatimes.com/news/politics-and-nation/why-india-is-far-behind-the-us-in-redressing-sexual-harassment/articleshow/61312681.cms [17] Supra 15 [18] 1997(7) SC 384 [19] (2013) 1 SCC 297 [20] (2017) 6 SCC 1 [21] AIR 1996 SC 309 Submitted by:
Yashi Goel,
Galgotias University
(Images used for representative purpose only)