Copyright © 2020 - Ex Gratia Law Journal

Prevention on Sexual Harassment at Workplace and Gender Neutral Approach

Throughout the years, India’s dynamic workforce saw a noteworthy ascent in ladies workforce, anyway the issue of Sexual Harassment of women at workplace stayed unacknowledged and unregulated until 1997, when the Supreme Court in its Landmark Vishaka Judgment[1], for the first time, recognised sexual harassment of women employees at the workplace as a human rights infringement. The Supreme Court in its milestone Judgement while reaffirming sexual harassment is a type of discrimination against women & violates the constitutional right to equality, right to life, right to live with dignity, right to practice or to carry out any occupation, trade or business as guaranteed under Articles 14, 15, 19(g) and 21 of the Constitution of India it likewise set down rules characterising the expression “Sexual Harassment”.  It further commanded that each business give a system to review complaints relating to workplace sexual harassment and the right of gender equality of working women. After almost 3 decades, considering the ongoing open objection and turmoil of sexual harassment crimes against woman, India has at last enacted the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

Ideas of ‘Happy Workplace’, ‘work-life balance’, ‘gender neutral workplaces’ are frequently touted among organisations comprehensively. Lamentably, this does not really convert into better consistence with mandatory employment law prerequisites. Truth to be told, in spite of the developing open mindfulness and ire against sexual harassment at the workplace, a few organisations in India keep on choosing to disregard the prerequisites of the new anti-sexual harassment law in India.

DEFINITION OF ‘WORKPLACE’

While the Vishaka Guidelines were kept to the conventional office set-up, perceiving the way that sexual harassment may not really be restricted to the essential work environment, the POSH Act has presented the term ‘extended workplace’. According to Section 2 (o) of the POSH Act, ‘workplace’ includes any place visited by the employee arising out of or during the course of employment, including transportation provided by the employer for the purpose of commuting to and from the place of employment.[2] 

In Saurabh Kumar Mallick v. Comptroller & Auditor General of India,[3] the respondent who was confronting departmental inquiry for allegedly indulging in sexual harassment of his senior women official contended that he was could not be blamed for sexual harassment at workplace as the supposed misconduct did not occur at the workplace however at an official wreckage where the senior women official was dwelling. It was additionally contended that the complainant was even senior to the respondent and in this way no ‘favour’ could be separated by the respondent from the complainant and along these lines the supposed demonstration would not comprise ‘ sexual harassment’. The Delhi Court while considering this issue held this as ‘unmistakably confused’. The Delhi Court saw that the aim and objective of formulating the Vishaka Guidelines was evident so as to guarantee that sexual harassment of working women is forestalled and any individual liable of such a demonstration is dealt harshly. Keeping in see the view behind the judgement, a tight and hypercritical methodology cannot be taken in characterising the term ‘workplace’ by binding the importance to the ordinarily comprehended articulation “office”.

For a situation like this, if such an official indulges in an act of sexual harassment with an employee, e.g., his private secretary, it would not be open for him to state that he had not committed the act at ‘workplace’ yet at his ‘residence’ and pull off the equivalent. Taking note of the above mentioned, the High Court saw that the accompanying variables would have bearing on deciding if the act has happened in the ‘workplace’:

  • Proximity from the work environment;
  • Control of the administration over such a place/residence where the working woman is dwelling; and
  • Such a living arrangement must be an expansion or coterminous piece of the working spot.

Thus, the Delhi High Court held that the official mess where the worker alleged to have been sexually harassed certainly falls under ‘workplace’.

All associations, regardless of whether organised or unorganised sector, and independent of structure for example an company, partnership firm, trust, association or any other body, whether for profit or not for profit, whether in business or not, whether an educational institution or a hospital or a hotel, are completely legally necessary to have set up an anti-sexual harassment policy managing the prevention and redressal of sexual harassment at the workplace. Associations with at least 10 employees (regardless of women or men) are required to likewise designate an internal complaints committee with a certain minimum number of members including at least one external member familiar with the significant law, to address grievances of sexual harassment and conduct inquiries and investigations where necessary. The law likewise commands that employee training to guarantee utilised under agreement or not, regardless of whether paid employees or volunteers or learners or students, detailed training and workshops sharpening employees on the law against sexual harassment and discrimination and advancing a more secure and progressive workplace.

The organisation/association, yet in addition senior management may likewise be considered answerable for non-compliance or inaction by the Company under this law and it is in this manner judicious for organisations to guarantee consistence with The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 and the rules there under.

GENDER NEUTRAL LAWS

POSH Law influences the entirety of India and is not gender neutral — it just secures women. A man who is a victim of sexual harassment at the workplace is not qualified invoke POSH Law; rather he should depend on organisation policies that prohibit harassment of any nature. Be that as it may, numerous organisations have picked to make their POSH strategy sexually impartial so as to guarantee an equivalent portrayal of the workforce. POSH Law applies to both organised and unorganised sectors.

On 12th November, 2018, the Supreme Court bench of C.J. Ranjan Gogoi and Sanjay Kishan Kaul J., refused to interfere in a petition filed by Criminal Justice Society of India assailing Section 375 of Indian Penal Code, 1860 on the ground that the section is not gender-neutral and violative of Article 14, 15 and 21. The bench observed that, though there is merit in the petition, at that stage the legislature is the appropriate authority as the 172nd Law Commission Report[4] had already recommended gender neutral laws. The reliance was made heavily upon the three land mark judgements of National Legal Services Authority v. Union of India[5], Justice K.S. Puttaswamy v. Union of India[6] and Navtej Singh Johar v. Union of India[7].

Information shows that about 5% of male workers are subject to sexual harassment in the workplace. Sadly, in contrast to their female workers, male workers cannot course their sexual harassment complaints through the POSH Act since it gives spread to female workers as it were. The KelpHRsurvey[8] discoveries demonstrate that the incorporation of male workers under the ambit of the POSH Act will support the organisation with male representatives, in executing the Act.

Discrimination is not obscure in India with regards to incorporation of transgender individuals in the public eye, particularly as far as employment opportunities. Predictable endeavours by activists in the course of recent years, has brought about a milestone request by the Honorable Supreme Court, in 2014 in National Legal Services Authority vs. Union of India[9]. The Court underlined that discrimination and abuse of the transgender community is common in India, especially in areas, such as education and employment. Therefore, the Court perceived the rights of the third gender to life with dignity, which is revered under Article 21 of the Constitution. While trying to give authoritative support to the suggestions articulated by the National Legal Services Authority of India, the Transgender Persons (Protection of Rights) Act, 2019.


[1]Vishaka & Ors v. State of Rajasthan & Ors, AIR 1997 SC 3011.

[2] Section2(o) of the Prevention of Workplace Sexual Harassment Act, 2013.

[3]Saurabh Kumar Mallick v. Comptroller & Auditor General of India, WP(C) No.8649 of 2007.

[4]Law Commission of India, 172nd Law Commission Report on Rape Laws (May 27, 2020, 03:12 PM), https://www.legal-tools.org/doc/1c639d/pdf/

[5] National Legal Services Authority v. Union of India, WP (Civil) No. 400 of 2012.

[6] Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.

[7] Navtej Singh Johar v. Union of India, (2018) 1 SCC 791.        

[8]KelpHR,  Effectiveness of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (May 29, 2020, 11.25 AM), https://www.kelphr.com/pdf/Effectiveness%20of%20Sexual%20Harassment%20of%20Women%20at%20Workplace.pdf

[9] Supra 5.

Print Friendly, PDF & Email

Author