Prakarti Shrivastava
INTRODUCTION
Sexual Harassment is an issue that constantly perpetuates male dominance over the workplace.[1] The incident of Bhanwari Devi’s Rape[2] highlighted the risks that women are uncovered at their workplace, initiating India’s struggle against sexual harassment. Since then, courts have attempted to evolve the concept of sexual harassment at the workplace to ensure a safe working environment. With time, the laws against sexual harassment have been critically examined, reviewed, and elaborated on by the judiciary.
One such development in the legal framework of sexual harassment at the workplace was made by the Supreme Court in the case of Nisha Priya Bhatia v. Union of India[3]. This case made a significant contribution to the Indian jurisprudence on sexual harassment laws by recognizing the “improper handling of sexual harassment complaints” as a form of harassment and thereby a violation of the fundamental right of the victim. At the same time, it has highlighted the need to review the existing procedural framework, dealing with complaints of sexual harassment at the workplace.
In this case, a former RAW agent Nisha Priya Bhatia leveled sexual harassment complaint against her colleagues Ashok Chaturvedi and Sunil Uke. After a gap of 3 months, the organization responded to her complaint by constituting the complaints committee which didn’t align with the Vishakha guidelines. The reconstituted committee concluded that no allegations of sexual harassment could be proved against the alleged perpetrators. This resulted in the infamous PMO Incident where Nisha Priya Bhatia attempted suicide at the reception of the Prime Minister’s Office to protest the mishandling of her complaint which ended in the publicity of her name and designation.
After this incident, she was compulsorily retired on the grounds of ‘exposure’ under Rule 135 (1) of the Research and Analysis Wing (Recruitment, Cadre, and services) Rules, 1975 which states that any officer of the organization may be compulsorily retired on the ground of his being exposed as an intelligence officer for reasons of security.[4] This compelled her to question the constitutionality of the stated rule. Her long-standing battle came to an end when the Supreme Court declared Rule135 as constitutional but directed the authorities to pay compensation of Rs. 1,00,000 to the petitioner for improper handling of her sexual harassment complaint.
Where this judgment has redefined ‘sexual harassment, it has also triggered the need to scrutinize the procedure being followed while dealing with sexual harassment complaints. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act) provides the mechanism to handle the sexual harassment complaints. But the procedural loopholes in the act, which were more or less overlooked, creates room for mishandling of complaints which negatively affects the psychological, emotional, and physical health of the victim.
EXPANDING THE SCOPE OF “SEXUAL HARASSMENT”
The decision of the Supreme Court in Nisha Priya Bhatia case is an important step in making the Indian sexual harassment jurisprudence more comprehensive. It established a precedent by recognizing the violation of the victim’s fundamental rights, irrespective of the outcome of the inquiry into her complaint of sexual harassment. The court instead of focusing on the rights violated by an act of sexual harassment, redefined the term by expanding its scope where fundamental rights of the victim are violated even through the procedure of inquiry into the complaints of harassment.
After observing the respondent’s failure to comply with the redressal procedure established under the Vishakha guidelines, the court concluded that “lack of sensitivity and ignorance of procedure in dealing with the complaints of sexual harassment amounted to a violation of petitioner’s fundamental rights, specifically Article 14 and 21”[5]
An effective grievance redressal mechanism and proper procedure are imperative in cases of sexual harassment at the workplace to protect a victim’s rights. Article 1 of the Violence and Harassment convention, 2019 defines “harassment” as “unacceptable behavior and practice that are likely to result in physical, psychological, sexual, or economic harm”[6]. Situations, where gross negligence and insensitivity are shown by the employers in proceeding with the complaint of sexual harassment, affects the emotional and physical well-being of the victim and therefore, should come within the ambit of “harassment”.
The Apex court in Vishakha and Ors. v. The state of Rajasthan[7], filling the vacuum that existed in the law, defined sexual harassment at the workplace, restricting it to the ‘unwelcome sexually determined acts’ violating the fundamental rights of the women. Questioning on the credibility of the approach of Delhi High Court in a Special Leave Petition in APEC v. A. K Chopra[8], the Supreme Court expanded the concept of sexual harassment, stating that ‘actions that do not withstand the test of decency and modesty are also covered by the term sexual harassment. And again in the case of Nisha Priya Bhatia, the Supreme Court expanded the ambit of Sexual Harassment by recognizing the infringement of fundamental rights of the victim due to the improper handling of her complaint, regardless of the outcome of the inquiry into the stated complaint.
A TIME TO REVISIT THE POSH ACT
The case of Nisha Priya Bhatia is focused on maintaining a balance between “security of a state organization dealing with sensitive matters of security of the nation and the individual interest of a person employed there as an intelligence officer”[9]. While analyzing the contention that arose over the validity of the order declaring unemployability of the appellant as per Rule 135(1) the court observed that since it does not entail any penal consequences for the employee and deprive the retired employee of any benefit, it cannot be put at the same pedestal of dismissal or removal. The court further clarified that the said rule cannot be shackled by the principles of natural justice considering the nature of the organization.
But, while justifying the constitutionality of the order passed as a matter of national security, the court compromised the dignity of a sexual harassment victim by making it something that can be compensated for and considering that compensation will be an effective deterrent in preventing cases of sexual harassment in organizations like RAW. Though this case becomes a landmark in terms of redefining sexual harassment, it highlights the ineffectiveness of existing legal machinery provided to deal with harassment at the workplace.
The biggest challenge faced by the victims of sexual harassment is the proper redressal of their complaint, which starts with the formation of an Internal Complaints Committee. Section 4 of the POSH Act deals with the constitution of the committee and Section 26(1) imposes a fine of fifty thousand rupees on the employer in case of failure to comply with the provisions of the act.
The meager sum payable in the name of punishment has proved to be an ineffective deterrent for employers who ignore the law, which is evident from the increasing rate of incidents of sexual harassment at the workplace. It also fails to take into account the mental, emotional and physical suffering that a woman goes through when her complaint remains unaddressed or ignored insensitively in addition to the traumatic experience of sexual harassment faced by her at the workplace.
In the case of Dr. Salma Khatoon v. Secretary, Govt. of India, Department of AYUSH[10], the employers not only failed to constitute the committee following the law but also transferred the victim to another state at a post lower than the previous one and threatened to settle the dispute or face action. Similarly, in Manisha Sharma v. Union of India and ors[11], the respondent instead of taking action against the complaint of the victim, transferred her to another place, due to which she suffered severe attacks of measles. In some cases, the victim’s complaints were also ignored even when the charges against the alleged perpetrator stood proved.
In the case of Nisha Priya Bhatia, the Supreme Court provided compensation to the victim for the improper handling of her complaint. But from filing the complaint of sexual harassment to the case coming before the court includes a lapse of time making it difficult to substantiate the claims even when the complaint has merits. Providing compensation is not an effective deterrent in such cases. To fill this gap there is a need to impose civil liability on the employer for not adhering to the provisions of the Act and even for ignoring and behaving insensitively on the complaints of sexual harassment.
CONCLUSION
Prima facie, the decision, in this case, presented a radical approach of the court where it recognized the violation of the victim’s right regardless of whether her allegation is proved or not. But while dealing with the validity of the appellant’s compulsory retirement by RAW, the court failed to maintain the dignity of the victim by awarding her monetary compensation, which hardly corresponds to the trauma & stigma faced by her from the incident, including loss of her employment.
There is a need to relook at the existing laws governing sexual harassment at the workplace. The punishment for not adhering to the provisions of the Act needs to be more stringent to make it an effective deterrent. The mechanism for redressal of the complaint of sexual harassment needs to be more comprehensive and transparent. A woman complaining of sexual harassment invites “undue and unfavorable attention” to her and is often singled out which can be a harrowing experience. The plight of women suffering from sexual harassment needs immediate attention.
[1] Brian Cesario, Attitudes About Victim of Workplace Sexual Harassment Based on Sex, 1 ELSEVIER JOURNAL ON CURRENT RESEARCH IN BEHAVIORAL SCIENCE 1 (2020).
[2] Vishakha and Ors. v. The state of Rajasthan, AIR 1997 SC 3011.
[3] 2020 SCC OnLine SC 394.
[4] Supra, note 3 at para 28.
[5] Supra note 3, at para 102.
[6] Violence and Harassment Convention, 2019, art. 1, https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C190.
[7] Supra, note 2.
[8] AIR 1999 SC 625.
[9] Supra note 3, at para 1.
[10] 2008 SCC OnLine CAT 1368.
[11] 2012 SCC OnLine Del 6352.
Indian Journal of Criminal Law and Justice 