Women are treated as an inferior race to the men since historic times and they are considered to be an instrument of service to the men. However, there have been voices raised against this perception and cruelty towards the women and one such instance can be seen in the case of Vishaka vs. State of Rajasthan, 1997 where a female worker named Bhanwari Devi was raped by some influential men and to fight for her justice, some people came forward collectively under the name ‘Vishaka’. In this case the Hon’ble Supreme Court of India issued certain guidelines related to sexual harassment of women at their workplace, which eventually led to the formulation of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 commonly known as ‘POSH’, which defines sexual harassment and also provides the mechanism and quantum of punishment to the accused.
In this Article we will be focusing on the aspect that what comprises a sexual harassment so that a woman comes to know that when she has to complain against the perpetrator.
Definition of Sexual Harassment
India had a Penal Code known as ‘Indian Penal Code, 1960’ (IPC) which is now repealed by the enactment of ‘Bharatiya Nyaya Sanhita, 2023’ (BNS), which did not have ‘Sexual Harassment’ included as an offence until the Criminal Law (Amendment) Act, 2013. However, it is notable that Sexual Harassment was such a common offence that along with this Amendment, a special law was also enacted in the same year to address the issue of sexual harassment at workplace which is known as POSH, as aforesaid mentioned.
Under POSH, the sexual harassment as defined under Section 2(n), comprises of:
- physical contact and advances; or
- a demand or request for sexual favours; or
- making sexually coloured remarks; or
- showing pornography; or
- any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
Examples of Sexual Harassment
- Asked for a date and the offer was rejected by the woman, but he is not accepting the rejection and asks repeatedly for the date which annoys the woman.
- Repeatedly trying to approach the woman on social media despite the denial.
- Sending some sexual emojis, stickers or messages to the woman on social media causing the woman to be at discomfort.
- A woman employee asks for some help from her colleague or any other employee of the organization but he forces or compels the woman for a sexual or romantic favor in return.
- The senior or any colleague makes certain rude and unwelcome comments on her physical appearance or her virtue in order to insult her.
- The woman is continuously been gazed in a sexual or intimidating manner.
- Sharing of certain jokes of sexual nature or having double-meanings (innuendo) which causes discomfort to the woman.
- Asking inappropriate questions related to personal life or appearance of the woman.
- Unwanted physical touch in a manner which portrays the sexual intent of the person.
What is not a sexual harassment
- A relationship with mutual acceptance cannot be a sexual harassment.
- Any workplace guideline, not portraying any willful bias towards the employee.
- Any direction or instruction issued to the employee for maintaining the workplace standards and discipline cannot be a sexual harassment unless it is not accompanied with a guilty intent.
- A non-sexual comment made towards the woman, with a view to complement her appearance or work performance.
- Any stress induced due to the normal course of business at the workplace cannot be said to be a sexual harassment.
- A conversation which is casual as well as usual between the person and the woman.
- Any action which is based on the circumstances of the personal relationship between the persons and is not objected against by the woman.
- A single casual act not grievous enough to be an offence in itself, which is though unwelcomed by the woman, and is not repeated by the person cannot constitute a sexual harassment.
Thus, with the above-mentioned information, it is quite easy to infer that when should a woman initiate a complaint against a person for sexually harassing her at the workplace. Moreover, it is notable that the woman should file a written complaint within 3 months from the last action which took place.
Contributed by- Adv. Shivam Mani Tripathi