• The Madras High Court has ruled that unwelcome behaviour in the workplace also constituted sexual harassment as the act itself constituted a criminal offence regardless of the harasser’s intentions, said a news report. 

• The judge made these remarks while quashing an order of the Principal Labour Court in Chennai that had dismissed the recommendations of the Internal Complaints Committee (ICC) of a company in a case involving a service delivery manager who faced sexual harassment complaints from women employees.

• The company received sexual harassment complaints from women employees against the service delivery manager. The ICC conducted an enquiry and found him guilty and made its recommendations. He was subsequently terminated from service. 

• Aggrieved by the recommendations, he moved the labour court, which reversed the findings of ICC and set aside the sexual harassment complaints in December 2019.

• The Madras HC judge said the ICC had rightly understood the scope and nature of the enquiry and adopted the right mode suiting to the purpose of enquiry.

Significance of the judgment

• Clarifies that harassment is defined by its impact on the victim, not the harasser’s intent.

• Strengthens the enforcement of the POSH Act by reinforcing that even subtle, non-verbal behaviours can constitute harassment if they are unwelcome.

• Encourages safer workplace environments by emphasizing that inappropriate behaviour will not be excused based on intent.

What is sexual harassment?

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

• The Sexual Harassment of Women (Prevention, Prohibition and Redressal) Act, 2013, defines sexual harassment to include any one or more of the following unwelcome acts or behaviour (whether directly or by implication):

i) Physical contact and advances.

ii) A demand or request for sexual favours.

iii) Making sexually coloured remarks.

iv) Showing pornography.

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

What is sexual harassment at the workplace?

Sexual harassment at the workplace is any unwelcome sexually defined behaviour that has the purpose or effect of unreasonably interfering with the individual’s work performance or creating an intimidating, hostile, abusive or offensive working environment.

Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013

The Sexual Harassment of Women (Prevention, Prohibition and Redressal) Act states that if the following circumstances occur or are present in relation to, or connected with any act or behaviour of sexual harassment, it may amount to sexual harassment at the workplace:

i) Implied or explicit promise of preferential treatment in her employment.

ii) Implied or explicit threat of detrimental treatment in her employment.

iii) Implied or explicit threat about her present or future employment status.

iv) Interference with her work or creating an intimidating or offensive or hostile work environment for her.

v) Humiliating treatment likely to affect her health or safety.

• Today, all workplaces in India are mandated by law to provide a safe and secure working environment free from sexual harassment for all women.

Features of the Act

• It defines sexual harassment as laid down by SC in Vishaka case. (Incorporated in Section 354A of IPC tabulated earlier).

• It puts the legal responsibility on the employer, whether government, public sector or private, to provide a safe and conducive environment for the woman worker. The onus is on the employer, and if this is not complied with, the employer is liable for punishment.

• The provision of concrete mechanism to enable an inquiry into individual complaints of sexual harassment and timebound justice through the formation of Internal Complaints Committee in the institution she works or, in the case of unorganised sector (that is, which employ less than 10 members), through the formation of five member local committees at various levels under the supervision of district collector.

• The Act includes domestic worker and defines it as a woman employed to do household work in any household for remuneration whether in cash or kind.

• Those who do not comply with the Act’s provisions will be fined up to Rs 50,000. Repeated violations would be punished with higher penalties.

• At least 50 per cent of nominated members in the Internal or Local Committee must be women.

Safe workplace is a legal right

• As enshrined in the Preamble to the Constitution, “equality of status and opportunity” must be secured for all its citizens; equality of every person under the law is guaranteed by Article 14 of the Constitution.

• A safe workplace is therefore a woman’s legal right. Indeed, the constitutional doctrine of equality and personal liberty is contained in Articles 14, 15 and 21 of the Constitution.

• These Articles ensure a person’s right to equal protection under the law, to live a life free from discrimination on any ground and to protection of life and personal liberty.

• This is further reinforced by the UN Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), which was adopted by the UN General Assembly in 1979 and which is ratified by India. Often described as an international Bill of rights for women, it calls for the equality of women and men in terms of human rights and fundamental freedoms in the political, economic, social, cultural and civil spheres. It underlines that discrimination and attacks on women’s dignity violate the principle of equality of rights.

• Not only is it an infringement of the fundamental rights of a woman, under Article 19(1)(g) of the Constitution “to practice any profession or to carry out any occupation, trade or business”; it erodes equality and puts the dignity and the physical and psychological well-being of workers at risk. This leads to poor productivity and a negative impact on lives and livelihoods.

Legal framework for sexual assault in India

• Section 375: Defines rape, detailing the circumstances under which sexual intercourse is considered non-consensual and thus qualifies as rape under the law.

• Section 376: Outlines the punishments for rape, which range from fines to life imprisonment, depending on the severity and circumstances of the crime.

• Section 376A: Addresses cases where rape results in the death of the victim or leaves the victim in a persistent vegetative state, imposing stricter penalties.

• Section 376B: Relates to marital rape but does not comprehensively address all forms of marital rape.

• Section 354: Deals with acts of assault or the use of criminal force with the intent to outrage a woman’s modesty.

Protection of Children from Sexual Offences (POCSO) Act, 2012:

• Scope: Provides protection for children from sexual offences, including assault, harassment, and involvement in pornography.

• Punishment: Enforces stringent penalties for offenders, including lengthy prison sentences and fines.

Criminal Law (Amendment) Act, 2013:

• Enhancements: Expands the definition of rape and introduces new offenses related to sexual violence in response to the 2012 Delhi gang rape incident.

• New Offences: Criminalises acts such as stalking, voyeurism, and acid attacks, with specific penalties for each crime.

(The author is a trainer for Civil Services aspirants.)