Sexual Harassment at the Workplace

In one line

A court legislated in 1997 because Parliament had not, the guidelines were still unimplemented fifteen years later, and the Act finally arrived in 2013.

In the wording a student can write in an exam: in Vishaka v. State of Rajasthan, AIR 1997 SC 3011, the Supreme Court, finding no domestic law occupying the field, laid down guidelines binding until legislation was enacted, drawing on article 14, article 15, article 19(1)(g) and article 21 and on the Convention on the Elimination of All Forms of Discrimination Against Women; in Apparel Export Promotion Council v. A.K. Chopra, AIR 1999 SC 625, it held that each incident of sexual harassment at work violates the fundamental rights to gender equality and to life and liberty, and that an attempt to molest is itself harassment; in Medha Kotwal Lele v. Union of India, (2013) 1 SCC 297, decided fifteen years after Vishaka and with the legislation still not enacted, it directed the States and the professional bodies to put the machinery in place and held that non-compliance may be taken to the High Court; and the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 is the statute that followed.

Why this sequence is the module's best example

Because it shows, in one subject and over sixteen years, everything Module I said about how Indian law responds to a form of violence the criminal law was not reaching.

A gap. No statute covered the conduct, and the criminal law reached only the extreme instances.

A court fills it. Vishaka, on the constitutional guarantees and an international convention.

The guidelines are not implemented. Medha Kotwal Lele, fifteen years later.

And the legislature arrives. The Act of 2013.

A student who tells that story has answered any question on this topic, and can then take the Act.

The Act

Section 2 defines the terms. Sexual harassment includes any one or more of the following unwelcome acts or behaviour, whether directly or by implication: physical contact and advances; a demand or request for sexual favours; making sexually coloured remarks; showing pornography; and any other unwelcome physical, verbal or non-verbal conduct of a sexual nature. Workplace is defined widely and includes a dwelling place or a house, which is what brings a domestic worker within the Act.

Section 3 is the prohibition, and its sub-section (2) lists the circumstances which, if they occur in relation to an act of sexual harassment, may amount to it: implied or explicit promise of preferential treatment; implied or explicit threat of detrimental treatment; implied or explicit threat about present or future employment status; interference with work or the creation of an intimidating or offensive or hostile work environment; and humiliating treatment likely to affect health or safety.