[Editorial Analysis] Courage of those who spoke up, commitment of lawyers and women’s movement mark this moment

Mains Paper 2: Polity
Prelims level: Vishaka Guidelines
Mains level: Role of women and Social empowerment

Context:

• Women faces sexual assault at many fronts especially at working places and hence, in recent years, this led to a major movement — an aandolan — across the country which forever changed the way workplaces for women are conceptualised.

• This movement was echoed in different parts of the world where high-profile men were publicly shamed and stripped of their status, the movement allowed women to speak out as never before.

• In such a scenario, Apparel Export Promotion Council vs AK Chopra recent judgment is so significant.

Issue:

• At the height of the #MeToo movement in 2018, Ms. Ramani accused Mr. Akbar of sexual harassment.

• Akbar had said that Ms. Ramani’s tweets lowered his reputation.

• He had in his criminal defamation complaint claimed that Ms. Ramani’s tweet and her article accusing him of sexual harassment were defamatory, and lowered his reputation.

Defining sexual harassment:

• It is any unwelcome sexually defined behaviour which can range from misbehaviour of an irritating nature to the most serious forms such as sexual abuse and assault, including rape.

What is sexual harassment at workplace?

• It is any unwelcome sexually defined behaviour which has the purpose or effect of unreasonably interfering with the individual’s work performance or creating an intimidating, hostile, abusive or offensive working environment.

About judgement:

• The court also acknowledged that 20 years ago, neither Ramani nor one of the witnesses who was also a journalist reporting to Akbar, had the protection offered by the Vishakha guidelines or the Sexual Harassment of Women at Workplace Act, 2013.

• The order affirms the spirit of those guidelines by upholding the right to a violence-free, safe workplace.

• It pointed out that a woman’s right to speak up about her violations was not restricted by the passage of time.

• It recognized of the principle of public good, its emphatic endorsement of the right of women to respect and dignity, its understanding of women’s reluctance to speak, and the question of delay, its assertion that “a woman cannot be punished for raising her voice against sex-abuse on the pretext of a criminal complaint of defamation, as the right to reputation cannot be protected at the cost of the right of life and dignity of woman as guaranteed in the Indian Constitution under Article 21 and Right of Equality before the law and equal protection of the law as guaranteed under Article 14 of the Constitution.”

Laws against sexual harassment at workplace:

• Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013: To ensure women’s safety at workplace, this Act seeks to protect them from sexual harassment at their place of work. 36 % of Indian companies and 25% among MNC’s are not complaint with the Sexual Harassment Act according to a FICCI report.

• It defines sexual harassment to include any one or more of the following unwelcome acts or behaviour (whether directly or by implication) namely:

• Physical contact and advances

• A demand or request for sexual favours

• Making sexually coloured remarks

• Showing pornography

• Any other unwelcome physical, verbal or non-verbal conduct of a sexual nature.

Vishaka Guidelines:

• The elimination of gender-based discrimination has been one of the fundamentals of the Constitutional edifice of India.

• The principle of gender equality is enshrined in the Constitution, in its Preamble, fundamental rights, fundamental duties and Directive Principles.

• However, workplace sexual harassment in India was for the very first time recognized by the Supreme Court of India in its landmark judgment of Vishaka v. State of Rajasthan (Vishaka Judgment).

• As per the Vishaka judgment, ‘Sexual Harassment’ includes such unwelcome sexually determined behaviour (whether directly or by implication) as:

• Physical contact and advances

• A demand or request for sexual favours

• Sexually coloured remarks

• Showing pornography

• Any other unwelcome physical, verbal or nonverbal conduct of sexual nature.

• It proposed that sexual harassment is recognized as a violation of women’s fundamental right to equality and that all workplaces/establishments/institutions be made accountable and responsible to uphold these rights.

Issues and challenges:

• Lack of Awareness: The efficacy of anti-sexual harassment provisions depends largely on the awareness of the employees in an organization.

• Apathy of organizations: Many organizations have not constituted a ICC. Further, women rights activists point out that organizations generally view sexual harassment cases from the perspective of their public image and not as a breach to individual employee’s breach to dignity and safety.

• Issues with ICC: Most of the committees lack people who have knowledge about legal technicalities involved in conducting the inquiry, cross-examinations and its importance.

• Reporting of cases: Number of women did not complain about sexual harassment at workplace due to fear, embarrassment, lack of confidence in complaint mechanism, unawareness, and due to stigma attached to sexual harassment.

• Inclusion of action for false and malicious complaints and evidence: Women are penalised and have to bear the threat of punishment in case they are unable to prove their complaint. This further acts as a deterrent in filing complaints. Even the Verma committee had advised its deletion.

• Unorganized sector: The law inadequately addresses the plight of large numbers of women in the unorganised sector who continue to suffer worse conditions of work and harassment without access to legal measures. Further, the LCCs are not formulated or do not function properly in most of the districts.

• Not Gender Neutral: The law against sexual harassment at workplace has been criticised for not being gender neutral. It does not take into account sexual harassment faced by men, trans-gender and transsexual individuals.

Conclusion:

• There is much to celebrate here and much that provides hope for the future and for all those women whose silence fills every space where women work.

• Organisations should focus on gender diversity at a workplace not only in terms of increasing numbers of women but also ensuring a safe working environment for them and that their voices are heard.

• Despite the horrors of Nirbhaya and the anti-rape laws, it is still a frightening reality that complainants continue to suffer victim-blaming, humiliation and distrust at police stations. Without a robust mechanism in place, things cannot be improved. The Government must work towards.

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