Amit Wadhwa and Puneet Gupta analyze how courts are dealing with prosecutions and issues facing internal complaints committees following incidents of sexual harassment in the workplace
Under India’s legal framework, in the past incidents of sexual harassment only had criminal implications as provided under section 354 of the Indian Penal Code. Under criminal jurisprudence, the prosecution needed to prove the act beyond a reasonable doubt, along with intent to commit the offence, and that, too, after a long criminal trial; This is against the civil remedy of compensation, counselling and paid leave, along with many other provisions that address the situation holistically.
India signed the UN Convention on Elimination of All Forms of Discrimination back in 1992, however, for lack of legislative intent, women continued to suffer abuses in the workplace, and their potential could not be harnessed to boost the economy, polity or even the cultural fabric of India.
The plight of women came to the attention of the Supreme Court in the well-known case of Vishaka and Ors v State of Rajasthan and Ors, where the court took it upon itself to fill the legislative vacuum, and, in light of ratification of India by the above-mentioned UN convention, framed comprehensive guidelines to prevent sexual harassment in the workplace, and also provided for the establishment of an internal committee at every office and workplace.
However, the judgment and the guidelines framed within it largely remain a “dead letter”, despite various attempts by NGOs and concern groups. This was until the Supreme Court’s call for accountability of all states and autonomous bodies, 15 years after the Vishaka judgment, in the case judgment of Medha Kotwal Lele and Ors v Union of India and Ors.
In today’s progressive atmosphere, where women employees are involved in multiple roles, it is imperative to go beyond the check-box exercise and ensure that The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act), is implemented in spirit for what is expressly mandated under the act. The act is a new dawn for women’s civil rights and liberties and its strong foundation will enable inclusion and growth of women in society.
While it has been about six years since the POSH Act has been implemented, however, there are only a handful of judgments to interpret the legal provisions, their contours, implications and the underlying spirit. Here are some of the issues touched upon by the courts.
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Amit Wadhwa is head of litigation and Puneet Gupta is head of contract at Max Life Insurance.