In this article, Lavanya Verma put forth the legal point on the recent controversy surrounding TVF’s sexual harassment case. Further, the article also deals with the laws relating to Sexual Harassment at workplace in India.
Sexual Harassment at workplace. TVF’s Case study
Urging gender equality as the elemental human right in all aspects, the Constitution of India guarantees all its citizens equality of status and opportunity. Sexual harassment is a violation of a woman’s fundamental right to equality as guaranteed by Articles 14 and 15 of the Constitution. Sexual harassment at workplace of women creates a hostile and insecure environment which discourages them and adversely affects their social and economic progress.
The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 (“Prevention of Workplace Sexual Harassment Act”) enforced on December 09, 2013 by the Ministry of Women and Child Development is India’s first specific legislation rendering to the issue. The act aims to prevent and protect women from sexual harassment at workplace and for the effective redressal of complaints of sexual harassment at workplace.
The Government has also notified rules under the act titled The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Rules, 2013 (“Prevention of Workplace Sexual Harassment Rules”). The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Rules, 2013 (“Prevention of Workplace Sexual Harassment Rules”)
The Criminal Law (Amendment) Act, 2013 is the promulgation of (“Criminal Law Amendment Act”) which criminalized offences such as stalking, voyeurism, and sexual harassment.
- In an anonymous blog posted earlier this month, Arunabh Kumar, CEO, The Viral Fever (TVF) has been alleged of sexual harassment by a woman employee who worked at TVF from 2014 to 2016. This was followed by a series of similar allegations of sexual harassment against Kumar by other women posting anonymously which went viral all over social media.
- On 29th March, a 27-year-old writer-director had lodged the first FIR with the MIDC police station alleging that Kumar made inappropriate gestures and even touched her while shooting a web series production in 2016. Then, on 30th March 2016, another victim joined in to register a sexual harassment case against Kumar at the Versova police station.
- Arun Chavan, Assistant Commissioner of Police (DN Nagar division) confirmed TOI about the FIR lodged by a woman who was formerly employed with the TVF CEO. Chavan further added that “The victim use to work with Kumar in 2014 and she claims that it was then he misbehaved with her. A case against Kumar has been filed under IPC section 354 (A) with the Versova police”.
- In her blog the victim writes about the abuse and harassment she faced, stating that Kumar asked her if she’d be interested in role play, a quickie or a “commercial” transaction at different instances. When she said of informing the police of such remarks and behavior, he told her that the police are “in his pocket.” Adding on the blog had mentioned details of the reactions she faced on speaking about it to the fellow TVF employees. Actor Naveen Kasturia, who has worked in several videos for TVF shared how she continues to receive breach of contract notices from the company as she quit when she just couldn’t bear anymore. Complainant blogger also wrote of wanting to kill hers. Meanwhile, nine other women like actor-director Reema Sengupta made similar allegations on a Facebook post supporting the anonymous blog and said she Kumar made overtures when she was directing a web series for TVF last year.
- TVF spokesperson Aditi Singh told The Indian Express that they have no records of these employees ever working at the company. “There are several other points in the blog which seem factually incorrect. We are preparing an elaborate response to the accusations made in the blog,” Singh said.
- TVF’s response, by saying categorically, that, the allegations mentioned in the post were ludicrous, false, defamatory, baseless and unverified. Also TVF shockingly added that it will leave no stone unturned in locating the author of the article and get her to severe justice.
Sexual Harassment at workplace
A variable range of behaviors is a major reason for difficulty while learning this concept, as even the victims themselves are unable to express their tragic sexual harassment moments. Thus there is no single definition which can define prohibited behavior.
In general terms, sexual harassment at workplace is referred to the “unwelcome sexual favor and other physical or verbal conduct of a sexual nature that tends to create an offensive work environment.”
The Supreme Court of India defined Sexual Harassment as any unwelcome direct or indirect sexually determined behavior such as;
- Sexually colored remarks
- A demand or request for sexual favors
- Showing pornography
- Physical contact and advances,
- Any other unwelcome physical, non-verbal/verbal conduct of sexual nature.
The word “unwelcome” is a vital part of the definition. Any such unwelcome or uninvited act is totally prohibited. Sexual interaction between consenting people at work may be offensive to others or also lead to the violation of the workplace’s policy, but it is not sexual harassment at workplace.
Conduct amounting to Sexual Harassment at workplace
- Whistling at someone
- Actual or attempted rape or sexual assault
- Touching an employee’s clothing, hair, or body
- Kissing sounds, howling and smacking lips
- Touching or rubbing oneself sexually around another person
- Unwanted sexual teasing, jokes, remarks, or questions.
- Unwanted deliberate touching, leaning over, cornering, or pinching.
Harasser and the Harassed
Unlike the common thought that sexual harassment at workplace is limited to interactions between male superiors and female subordinates, sexual harassment can occur between any co-workers, like,
- Subordinate harassment of a superior;
- Same-sex harassment- men can harass men; women can harass women;
- Men can be sexually harassed by women;
- Offenders can be co-workers, supervisors, or non-employees as suppliers, customers, and vendors
Indian legal provisions for Sexual Harassment at workplace
Criminal case under sections of the Indian Penal Code (IPC)
1. Section 294
Any obscene act or song done in public to annoy another is an offence- cognisable, bailable and triable by any magistrate, as prescribed in the provisions in Chapter XVI entitled “Of Offences Affecting Public Health, Safety, Convenience, and Morals.”
2. Section 354
When without the consent of the women, acts of physical attack or intentional force on the person of woman are committed to outrage her modesty, then the offender can be fined or sentenced to two years of imprisonment or convicted with both.
3. Section 509
As in Chapter 22 – “Of Criminal Intimidation, Insult and Annoyance”, commission of act, utterance of words intentional gestures to insult the modesty of a woman or hurt her privacy is an offence which is cognisable, bailable and triable by any magistrate and can be punished by way of fine or sentence upto two years of imprisonment or with both.
Criminal case under the Indecent Representation of Women (Prohibition) Act, 1987
Under Indecent Representation of Women (Prohibition) Act, 1987 if any person harasses another by an indecent portrayal of women in books, films, photographs, paintings, etc, can be convicted for minimum two years sentence.
Further, Section 7 says that when found guilty on instances of an indecent depiction of women by way of pornography display etc. on the company premises will be charged with minimum two years sentence.
Where any such conduct amounts to a specific offence under the IPC, the employer should initiate requisite measures in accordance with the law by making complaint with the appropriate authority. While dealing with sexual harassment complaints in particular, the employer should make sure that the victims or witnesses are not discriminated.
A civil suit for mental anguish, loss of income and employment caused by the sexual harassment can be instituted for damages under the law of tort.
The Vishaka Judgement – “A milestone for Workplace Sexual Harassment at workplace victims.”
The Honorable Supreme Court laid down mandatory guidelines and norms in Vishaka and others vs. State of Rajasthan and others 1997 to constitute the offence of sexual harassment at workplace.
Duty of the employer or other responsible persons in workplaces is to prevent the commission of acts of sexual harassment and to provide the procedures for the resolution, prosecution or settlement of conduct of sexual harassment by taking all necessary steps.
Steps to prevent Sexual Harassment at workplace
All persons in charge of workplace whether in public or private sector should take appropriate steps to prevent sexual harassment at work. These steps should be followed without prejudice to the generality of the obligation:
- Express prohibition of sexual harassment as defined above at the workplace should be notified, published and circulated in appropriate ways.
- Rules prohibiting sexual harassment to be included in government and public sector code of conduct and discipline mechanism and imposition of appropriate penalties against the offender of such rules.
- Above mentioned steps must also be included in standing orders passed under the Industrial Employment (Standing Orders) Act, 1946, with regards to the private sector.
- Suitable working conditions should be established at all aspects of work, health, hygiene and leisure to prevent a hostile environment towards women at workplaces and no woman employee should have reasonable grounds to feel disadvantaged in relation to her employment.
- The most important way to prevent sexual harassment at workplace is through constant awareness and knowledge upgradation. It can be easily achieved by taking up this course by National University of Juridical Sciences.
Prescribed disciplinary actions must be initiated by the employer in accordance with the service rules, when dealing with acts amounting to misconducts in employment as defined in these rules.
For redressal of the victim’s complaint, an appropriate – time bound complaint mechanism must be established in the employer’s organisation to decide whether the alleged sexual harassment act constitutes an offence under law or a breach of the service rules.
Internal Complaints Committee
The above-mentioned complaint redressal mechanism must be competent to provide a special counselor or other necessary support service complaints committee in times of need. Also, owing to the sensitivity of the matter, strict confidentiality must be ensured.
The composition of the complaints committee must be not less than half female members of the total, which is to headed by a woman. Additionally, a third party involvement in the form of NGO or other bodies should be arranged to avoid senior level influence or undue pressure at any respect.
Annual reports of the filed complaints and concerned steps taken by the complaints committee must be submitted to the respective government department. Further, the employers must also report on the adherence to the prescribed guidelines, including on the reports of the complaints committee submitted to the government department. All of these are strict compliances a company must adhere to. Non-compliance could lead to a lot of repercussions including fines and loss of goodwill. You can learn more about sexual harassment at workplace by taking up this course.
The ministry of women and child development has published a handbook on Sexual harassment at workplace (prevention, prohibition, and redressal) act, 2013. The handbook is considered valuable for employers, employees and complaint committees for proper guidance with regard to law and aims to safeguard the interest of women affected with sexual harassment at workplace.
Arbitration in the cases of Sexual Harassment
Labour Law Compliances Checklist Under The Sexual Harassment Of Women At Workplace Act, 2013
Suvrajit Bhattacharya, Learning Officer at Hyatt Hotels Corporation, on how he is using the NUJS Executive Certificate Course in Sexual Harassment Prevention and Workplace Diversity in his career
Legal provisions regarding sexual harassment at the workplace
This study explores women’s experiences of work and employment in the banking sector in India, addressing the paucity of research in this area. The research assesses how the assumptions of theories on gender, work and employment, primarily based on empirical experiences from the Global North can be interpreted in the Indian context. It argues that experiences of gender inequalities are geographically reconfigured in the Indian banking sector through the interplay between gendered organisational practices, local cultural discourses on femininity, institutional factors, particularly government laws and organisational structures. The research draws upon a case study of the banking sector in the National Capital Region (NCR), one of India’s largest consumer financial centres, combining a questionnaire survey of 156 female bank employees with 74 qualitative interviews with female and male bank employees in three types of banks. The study uncovers how gender discrimination, albeit covertly, is widespread in Indian banks. Gendered organisational practices create universal constraints for Indian women’s career development. This study, however, reveals how local cultural discourses on femininity, emphasising respectability and family values lead to distinctively Indian patterns of gender inequalities in the banking sector serving to highlight the intersection of gender with class identities. Crucially, the comparison of government-owned, foreign-owned and Indian private banks demonstrates that local cultural norms and gendered organisational practices are mediated through different organisational structures to create varied experiences of gender discrimination for women in the different banks. Finally, the study provides new conceptual perspectives for addressing the limitations of existing theorisations on gender, work and employment. It develops the concept of ‘family-based femininity’ highlighting the influence of the family in shaping the nature of gender inequalities in the workplace. Where previous typologies focused on resistance in the workplace, this research introduces the notion of ‘compliance in the workplace’, whereby women passively conform to gendered organisational practices, with little intention to create change.