CONSTITUTIONAL PROVISIONS FOR PROTECTION OF WORKING WOMEN

AGAINST SEXUAL HARASSMENT

Is this Sexual Harassment at the Workplace? He stares up and down my body while talking to me Male colleagues pass comments with sexual undertones in my

presence He tries to touch me from the back while work on the computer When shaking hands with me, he holds my hand a little longer

than normal My co-worker brushes against me while walking down the stairs I find obscene messages on my table, email, telephone Graffiti and comments with sexual overtones are scribbled on

the walls of our office staircase and on our lift walls My boss/colleague keeps pestering me to go out with him for

dinner or coffee

What is a workplace?

This is not limited to the four walls of the office but extends to any place outside the office where working relationships exist.

Saurabh Kumar Mallick Vs. The Comptroller and Auditor General of India and Anr, 2008

PREAMBLE TO THE CONSTITUTION

We the people of India, having solemnly resolved to constitute India into a sovereign socialist secular democratic republic and to

secure to all its citizens

Preamble contd.,

JUSTICE, SOCIAL, ECONOMIC AND POLITICAL;

Liberty of thought, expression, belief, faith and worship;

Equality of Status and Opportunity; And to promote among them all Fraternity assuring the dignity of the

individual and the unity and integrity of the nation

Part III - FUNDAMENTAL RIGHTS

Right to Equality Article 14 – Equality before the law - The State

shall not deny to any person equality before the law or the equal protection of the lawwithin the territory of India

Article 15 – Prohibition of Discrimination on grounds of religion, race, caste, sex or place of birth – (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

Fundamental Rights contd.,

Article 16 – Equality of opportunity in matters of public employment – 1) – There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the state

(2) – No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.

Fundamental Rights Contd.,

Right To Freedom Article 19 – Protection of certain rights regarding

freedom of speech, etc. – (1) All citizens have the right - (g) to practice any profession, or to carry on any occupation, trade or business

Article 21 – Protection of Life and Personal Liberty - No person shall be deprived of his life or personal liberty except according to procedure established by law.

Fundamental Rights cont.,Right To Constitutional Remedies Article 32 – Remedies for enforcement of rights

conferred by this Part – (1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.

(2) The Supreme Court shall have power to issues directions or orders or writs, including writs in the nature of habeus corpus, mandamus, prohibition, quo warrantoand certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part

Special Provisions for women

Article 15 (3) – Nothing in this article shall prevent the State from making any special provision for women and children

Article 16 (4) – Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.

Part IV - DIRECTIVE PRINCIPLES OF STATE

POLICY Article 39 – Certain principles of policy to be followed by

the State – The State shall, in particular, direct its policy towards securing – (a) that the citizens, men and women equally, have the right to an adequate means to livelihood;

(d) that there is equal pay for equal work for both men and women;

(e) that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength;

DPSP contd.,

Article 41 – Right to work, to education and to public assistance in certain cases –The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance incases of unemployment, old age, sickness, and disablements and in other cases of undeserved want.

DPSP contd.,

Article 42 – Provision for just and humane conditions of work and maternity relief – The State shall make provision for securing just and humane conditions and for maternity relief.

Article 51 – Promotion of international peace and security – The State shall endeavour to – (c) foster respect for international law and treaty obligations in the dealings of organised peoples with one another;

Part IV A FUNDAMENTAL DUTIES

Article 51 A – Fundamental Duties – It shall be the duty of every citizen of India –(a) to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem;

(e) to promote harmony etc; to renounce practices derogatory to the dignity of women;

CONVENTION FOR THE ELIMINATION OF ALL FORMS

OF DISCRIMINATION AGAINST WOMEN

Article 1 – Discrimination is any distinction, exclusion or restriction made on the basis of sex which has the effect of nullifying or impairing the recognition or enjoyment by women of their human rights and fundamental freedoms.

General Recommendation 19 (11th session 1992) Violence

Against Women 7. Gender-based violence, which impairs or nullifies

the enjoyment by women of human rights and fundamental freedoms under general international law or under human rights conventions, is discrimination within the meaning of article 1 of the CEDAW. These rights and freedoms include:

a) The right to life; b) The right not to be subjected to torture or to cruel,

inhuman or degrading treatment or punishment; d) The Right to liberty and security of person; e) The Right to equal protection under the law; h) The right to just and favorable conditions of work

Recommendations contd.,

Article 11 – Equality in Employment 17. Equality in employment can be

seriously impaired when women are subjected to gender-specific violence, such as sexual harassment in the workplace.

Recommendations contd., Sexual harassment includes such unwelcome sexually

determined behaviour as physical contact and advances, sexually colored remarks, showing pornography and sexual demand, whether by words or actions. Such conduct can be humiliating and may constitute a health and safety problem; it is discriminatory when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment, including recruitment or promotion, or when it creates a hostile working environment.

Recommendations contd.,

Specific Recommendations 24 j) State parties should include in their

reports information on sexual harassment, and on measures to protect women from sexual harassment and other forms of violence or coercion in the workplace.

The Supreme Court Judgment Vishaka and Others vs the State of Rajasthan

1997 August 13th 1997 A woman employee of a Govt. Sponsored

Development programme – child marriage faced repeated sexual harassment ending in rape

No support from her superiors, including the district administration and the police

Leading social activists and organisations filed a writ petition in the Supreme Court of India

Uniqueness of the guidelines They recognise: that sexual harassment at the workplace is a reality which happens

to many women workers. It cuts across professions, social strata and levels of skills

The focus is on the impact of the harassment than on the intent of the harasser

The law for the first time recognises sexual harassment as a Human Rights violation.

The onus is on the employer to prevent sexual harassment and to provide the procedures for resolution, settlement or prosecution of such acts

The emphasis is on prevention and creation of a safe, equal and gender friendly workplace through awareness of both employer and employee

The Guidelines are legally binding and must be enforced

Definition of Sexual Harassment

The Supreme Court defines Sexual Harassment as any unwelcome

physical contact or advance demand or request for sexual favour sexually colored joke or remark display of pornography Any other unwelcome physical, verbal or

non-verbal behaviour with sexual overtones.

The sexual harassment of women at workplace (Prevention, Prohibition and Redressal) Act, 2013

“Sexual harassment” definition same as in CEDAW and Vishaka decision

“workplace” includes public and privatesector, ngo, health services, educationalinstitutions, hospitals and nursing homes,entertainment, sports institutes, stadiums,including transportation provided by

employer

The 2013 Act

S. 3 (1) No woman shall be subjected to sexual harassment at any workplace(2) The following circumstances, among other circumstances, if it occurs or is present in relation to or connected with any act or behaviour of sexual harassment may amount to sexual harassment

Section 3. (2)

(i) implied or explicit promise of preferential treatment in her employment; or

(ii) implied or explicit threat of detrimental treatment in her employment; or

(iii) implied or explicit threat about her present or future employment status; or

(iv) interference with her work or creating an intimidating or offensive or hostile work environment for her; or

(v) humiliating treatment likely to affect her health or safety

Constitution of Internal Complaints Committee

Section 4 (1) every employer shall, by an order in writing, constitute a Committee to be known as the “Internal Complaints Committee”

(2) It shall consist of (a) Presiding Officer who shall be a woman employed at a senior level at workplace from amongst the employees (b) not less than 2 members form amongst employees preferably committed to the cause of women etc

(c) one member from ngo or assns committed to the cause of women

Provided at least one half of the total shall be women.

NLSIUCode to Combat Sexual

HarassmentCame into force in September 2002High Court of Karnataka has upheld the

constitutionality of the Code Preamble Striving for a campus in which

every person feels respected and can lead a life of dignity, free from vulnerability

Endeavoring to ensure that each member of the community can live a life free from sexual harassment

NLSIU’s Code to Combat Sexual Harassment

Sexual Harassment is prohibited and shall be dealt with under these rules. Zero tolerance of sexual harassment in and by NLSIU

Scope – all instances occurring on the NLSIU campus, irrespective of the parties

Between or among members of the NLSIU community, irrespective of the location

An instance committed by or against a third party involved in an activity pertaining to the university, irrespective of their location

Definitions under the Code

Unwelcome Sexual conduct – any unwelcome sexual advances, unwelcome acts of physical intimacy, unwelcome requests for sexual favors, including oral, textual, graphic representations of a sexual nature to a person, in a person’s presence, whether or not the representation concerns that person, about a person

Definitions contd

Sexual Harassment – A person shall be guilty of sexual harassment when s/he indulges persistently in conduct known to her/him to be unwelcome sexual conduct or should reasonably have been known to such person to be unwelcome sexual conduct or s/he indulges in conduct that may reasonably be perceived by the victim as unwelcome sexual conduct

Abetment of sexual harassment shall be deemed to be sexual harassment

Definitions contd

Victimisation shall be understood to mean any adverse action by an individual, group of individuals or organisation against individuals because they have, in good faith, reported instances of sexual harassment or participated in or have been witnesses to proceedings to redress an alleged instance of sexual harassment.

Recourses under the Rules Resolve the matter through the mechanism laid

down in the Code Take recourse to any other institutional,

civil/criminal remedies available to her/him in the University as under the law

After consultation with the facilitator the aggrieved person can request mediation with the consent of both the parties

The aggrieved party can choose to request corrective action, then the matter will be referred to the Sexual Harassment Inquiry Committee.

Corrective Actions(a) For Students Warning, reprimand or censure Public written apology Community Service Curtailment of Priviliges Bar on representing the University Removal or bar from holding any position of

responsibility Suspension for three weeks to a max of one year Rustication from the university Fine upto Rs. 2500 Mandatory attendance in a Sexual Harassment

workshop/counseling programme

Corrective Actions contd(b) For Faculty/Staff Warning, reprimand or censure Public written apology Termination Suspension Withholding increments and promotions Demotion Fine upto Rs. 5000/- Transfers

Corrective Actions For both students and Faculty/Staff Criminal Proceedings – when any alleged

instance of SH amounts to a specific cognizable offence under the IPC or any other law, the University may in addition to the proceedings under the Code, initiate appropriate proceedings in accordance with the law by making a complaint with the appropriate authorities

If it is misconduct in employment then appropriate disciplinary action shall be initiated by the University in accordance with the rules.