TORT OF SEXUAL HARASSMENT
TORT OF SEXUAL HARASSMENT
Author : Tanvi Gupta
“The meaning and content of the fundamental rights guaranteed in the Constitution of India are of sufficient amplitudes to encompass all facets of gender equality”
-Late Chief Justice J.S. Verma
Introduction:
Bygones are the days when women were idolized sitting at home and doing household chores. With a radical change in the society women play a vital role in political, social and economic spheres of the nation. However, evolution in the society led to the recognition of sexual harassment as a wrong against women.
This incidence can be anywhere, either at workplace, institutions, bars, buses etc. It can be referred as violation of one’s dignity, bodily integrity and sexual autonomy.
Sexual Harassment is a direct violation of fundamental rights of a woman guaranteed under Article 14,15 and 21 of Indian Constitution. The mounting number of sexual harassment cases is a mirror reflecting male power over women that sustains patriarchal relations. Women who are worshiped as goddess in India are subjected to torture and harassment every 12 minutes in India.[1]
Meaning & Essentials:
“Sexual Harassment” includes directly or implied anyone or more of the following unwelcome acts or behaviour, namely Physical Contact, Request for sexual pleasures, making sexually coloured remarks, showing Pornography or any other unwelcome physical, verbal or non-verbal conduct of a sexual nature.[2]
Sexual Harassment to be covered in tort has to fulfil three basic essentials i.e. there should be an act or omission causing a legal damage to a person resulting in a position for Legal Remedy.
The Act done should be something unlawful or something not prescribed in law. In the case of Legal wrong, one has to prove the principle of injuria sine damnum. In simpler words, act of sexual harassment should not lead to physical injury but there must be infringement of legal right which cannot be left unredressed. The person Sexually harassed has right to approach court for monetary compensation.
A Voluntary act itself cannot suffice to prove the liability of sexual harassment. It has to be accompanied with three major mental elements i.e. Malice, Intention and Motive. Malice is a wrongful act done intentionally without cause and Intention is the knowledge present about the end result. Lastly, motive is the ultimate purpose of doing the act.
International Guidelines:
The International Covenant on Economic, Social and Cultural Rights lays down provisions highlighting the rights of women. Article 7 emphasis on her right to safe work environment and reflects that women shall not be subjected to sexual harassment at work place. The Hon’ble Supreme Court of India in plethora of cases while discussing constitutional requirements pointed out that the court should not overlook the principles embodied in International Instruments and there should give due regard to them.[3]
Progressive Law in India:
Initially there was no law on sexual harassment and it was interpreted in the Landmark Judgement of Vishaka vs State of Rajasthan[4]. In this case Bhanwari Devi, a Dalit woman employed with the rural development programme of the Government of Rajasthan, was brutally gang raped on account of her efforts to curb the then prevalent practice of child marriage.[5] The court recognised and declared the act of sexual harassment to be unlawful under various constitutional provisions and international conventions.
Recently, Sexual Harassment of Women at Workplace Act, 2013 was enacted with intent to upheld right to gender equality, life and liberty by Ministry of women and child development in 2013. This act safeguards the dignity of women only and hence not applicable on men victim. Section 28 of the Act mentions that provisions should be in addition to and not in the derogation of the existing law.
Sexual Harassment at Workplace:
While celebrating the decision in Vishaka Case, the Hon’ble Court laid down the obligation on workplaces and others in a position of responsibility to upheld the fundamental rights of women at workplace. These obligations were Prohibition, Prevention and Redress. The SC emphasised on implementing a well- framed policy wherever employees are more than 50 in public or private sector and complaint committee to investigate the issue at hand. There will be two committees Internal and Local Committee each constituting of 50% representation of women. The National Commission for Women has power to intervene if these guidelines are not followed. Furthermore, it has relaxed the burden of proof on a woman complaining for such an act.
The Indian Ministry of Women and Child Development has launched an online complaint platform named “SHe-Box”, which stands for “Sexual Harassment Electronic Box”. SHe-Box has been introduced with an aim to allow female employees or visitors a platform to raise complaints of sexual harassment at the workplace. This facility has also been extended to private sector employees[6]
Damages
Vishaka judgement has broaden the horizon to identify Sexual harassment as a tort along with crime. Prior to this, the only remedy was criminal proceeding however, now the complainant can proceed with monetary compensation also.
Defences
The three defences available are innocence, consent and insanity. The first defence questions the happening of incident, if the defendant could prove he was not there at the time of incidence occurred or no such act was done by him. Second defence is if the defendant could proof the act was welcomed. Lastly, if the defendant could prove if insanity at the time of occurrence of the event.
Conclusion:
Globalization has led to the increase in the cases of sexual harassment which is not only limited to violation of legal right but also a psychological and social issue. The women are expected to ‘go along’ with behaviour and conversations charged with sexual innuendo and content, is not a problem unique to India. Although law was enacted in 2013 but there is lack of clarity on the obligation of employer and employee, constitution of sexual harassment, remedies, procedure etc. There is an urgent need to look into matters and rights of women
[1] http://ncrb.nic.in/ciiprevious/data/cd-CII2002/cii-2002/crime%20clock.htm.
[2] Handbook on Sexual Harassment of Women at Workplace Act, 2013
[3] Peoples Union for Civil Liberties v. Union of India & Anr., JT 1997 (2) SC 311
[4] AIR 1197 SC 3011
[5] Indira Jaising, Law Relating to Sexual Harassment at the Workplace (2014)
[6]http://www.nishithdesai.com/fileadmin/user_upload/pdfs/Research%20Papers/Prevention_of_Sexual_Harassment_at_Workplace.pdf
