OTHER LAWS PERTAINING TO SEXUAL HARASSMENT AT WORK PLACE: IPC AND BNS

This article is written by Saloni of 8^th Semester of BBALL.B. of Bhagat Phool Singh Mahila Vishwavidyalaya, Department of Laws Khanpur Kalan, Sonipat, an intern under Legal Vidhiya

ABSTRACT

Women are excelling in all professions. Because of globalization, there are now more women working in the industrial sector. It is regrettable; nevertheless, that women are subjected to sexual harassment in the workplace. Every Indian citizen has the right to equality guaranteed by the constitution. One type of violence against a specific gender that is gender specific is sexual harassment. It is against the Indian Constitution’s articles 14 (right to equality), 15 (prohibition of discrimination), and 21 (right to life and personal liberty).  It undermines integrity, dignity, fundamental rights, and the constitution. Numerous international agreements have been formed to address this problem. National legislation pertaining to sexual harassment has also been implemented. The additional legislation relating to sexual harassment at work will be covered in this article.

Keywords

Sexual Harassment. Sexual Assault, Provision related to Sexual Harassment at Work Place, IPC, BNS,  Bharatiya Nyaya Sanhita.

INTRODUCTION

Sexual harassment is a widespread issue that affects all nations. However, compared to men, women have experienced sexual harassment far more frequently. Worldwide, it is believed that 35 percent of women experience sexual harassment as victims. A number of guidelines were established by the Indian Supreme Court to stop sexual harassment in the workplace The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 was enacted by the Indian parliament in an effort to combat the problem of sexual harassment in the workplace.  16 years have passed since the Supreme Court of India’s historic ruling in Vishakha v. State of Rajasthan, often known as the Vishakha verdict. As a result, the Prevention of Sexual Harassment Act and its regulations were put into place. To address the problem of sexual harassment in the workplace, there was initially no explicit regulation. In order to address sexual harassment of women at work, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act of 2013 (POSH act, 2013) was passed. The purpose of the POSH Act is to protect women from sexual harassment in the workplace and to create a welcoming and safe work environment for them.

MEANING OF SEXUAL HARASSMENT

Sexual harassment is a general term for any unwelcome, offensive, or frightening behavior. Sexual harassment is any unwanted sexual activity that can be interpreted as verbal, nonverbal, physical, psychological, or visual harassment. Any unwanted behavior or conduct with a sexual overtone that is done without consent is covered by the broad definition of sexual harassment under the POSH conduct. India’s official definition of sexual harassment was given by the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 in Section 2(n).  The POSH Act’s definition of sexual activity is broad enough to include implied and direct sexual behavior involving spoken, gestured, and written communication. This includes:

1. Physical contact and advances 
2. Demand or request for sexual favours 
3. Making sexually colored remarks 
4. Showing pornography 
5. Any other unwanted sexual behavior, whether it be verbal, physical, or nonverbal.

Among other things, the following situations could qualify as sexual harassment:[1]

• implied or explicit promise of preferential treatment in employment;
  • implied or explicit threat of detrimental treatment in employment;
  • implied or explicit threat about present or future employment status;
  • interference with work or creating an intimidating or offensive or hostile work environment; or
  • Humiliating treatment likely to affect the lady employee’s health or safety.

PROVISIONS RELATED TO SEXUAL HARASSMENT UNDER IPC, 1860

Activities that could be interpreted as sexual harassment are illegal under the Indian Penal Code in addition to being against the Prevention of Workplace Sexual Harassment Act. One-sided and unwelcome behavior is sexual harassment. India’s criminal justice system underwent significant reforms in 2013. The 2013 Criminal Law (Amendment) Act came into effect. This act added section 354A, which defined sexual harassment, to the Indian Penal Code, 1860. In line with the IPC, 1860’s section 354A:

A man committing any of the following act[2] –

i). physical contact and advances involving unwelcome and explicit sexual overtures;

ii). A demand or request for sexual favours; or

iii). showing pornography against the will of a woman; or

iv). Making sexually coloured remarks, shall be guilty of the offences of sexual harassment.

Principal offenses under the Indian Penal Code that may be triggered in a sexual harassment case are:

Section 354 of IPC: outraging the modesty of a woman

Section 354 of the IPC penalizes anyone who assaults any woman or whoever intends to outrage modesty of woman. The Code penalizes with one year of imprisonment extended to five years or with fine or with both. Section 509 of the Code punishes whoever intends insults the outrage of modesty of a woman by uttering words or through gesture. The offender is penalized with the simple imprisonment may be extended to one year or fine or both

New provisions were added by the Criminal Law (Amendment) Act of 2013: Section 354A, which deals with sexual harassment at work, Section 354B, which deals with disrobing, Section 354C, which deals with voyeurism, and Section 354D, which deals with stalking.

Sexual harassment by a man (section 354A):

Workplace sexual harassment is covered under Section 354 A. It is a law that is gender specific and a punishable offense.

Any man commits the act of:[3]

• physical contact and advances involves unwelcoming and explicit sexual proposition
  • demand for sexual favours
  • showing pornography without will of women
  • Making sexual coloured remarks shall be guilty of the offence of sexual harassment.

A man faces harsh imprisonment for up to three years, a fine, or both if he commits any of the crimes listed in (i), (ii), and (iii). In addition, any man who commits any of the offenses listed under (iv) faces a maximum one-year sentence in jail, a fine, or both.

Assault or use of criminal force to woman with intent to disrobe (section 354B)

Women’s disrobing offenses are covered under Section 354 B. A male faces a minimum sentence of three years in prison, with the possibility of seven years, if he employs unlawful force against a woman, forces her undress, or forces her to be naked. Although this particular section of the law is a cognizable offense, it is not subject to bail.

Voyeurism (section 354C)

Section 354 C addresses the voyeurism offense. Any guy who witnesses or takes a photo of a woman engaging in a private conduct in an environment where the perpetrator is not anticipated to be found can be held accountable for this crime. Furthermore, under the terms of this clause, any dissemination of photos that involves the victim’s agreement but does not have the intention of being shared with a third party will be considered an offense. If convicted for the first time, the sentence will be imprisonment for a minimum of one year and a maximum of three years. If the accused is found guilty a second time, he might face a minimum sentence of three years in jail and a maximum sentence of seven years. It is considered as cognizable and bailable offence at first conviction but it will become a non- bailable offence at the second conviction.

Stalking (section 354D):

The crime of stalking is covered under Section 354 D. This provision states that a man will be found guilty of stalking if he persistently follows or contacts a woman notwithstanding her indifference or keeps an eye on her usage of the internet or other electronic communication devices. At the time of the first conviction, the offender faces a maximum three-year sentence in prison and a fine. If convicted a second time, the sentence may be up to five years in prison and come with a fine.

Within the scope of this section, there are a few exceptions.

A person will not be held accountable for the crime of stalking if they were acting consistently to stop the crime, if they were within the bounds of the law, or if they have reasons for their actions.

Insulting the modesty of a woman (section 509):

This section states that anyone who intentionally insults a woman’s modesty through words, gestures, or exhibits objects with the intention of drawing attention to themselves or infringing upon their privacy in any other way faces up to a year in prison, a fine, or both.

PROVISION RELATED TO SEXUAL HARASSMENT OF WOMEN AT WORKPLACE UNDER BNS (BHARATIYA NYAYA SANHITA)

On December 25, 2023, the President of India gave his assent to the Bharatiya Nyaya (Second) Sanhita 2023 (BNS). The long-standing Indian Penal Code, 1860 (IPC) will eventually be replaced by this new code. Clause 1(2) states that BNS will take effect on a date specified by the Central Government in an official notification published in the Official Gazette. With the title “Of Offences Against Woman and Child of Sexual Offences,” BNS has added a new Chapter V.

Meaning of Sexual Harassment as per BNS

A significant difference is that the definition of “sexual harassment” has been moved from Section 354A of the IPC to section of the BNS. Sexual offenses against women: According to the IPC, crimes against women include rape, voyeurism, stalking, and demeaning a woman’s modesty.  These clauses are retained in the BNS2.  In the event of gangrape, it raises the age requirement for the victim to be considered a major from 16 to 18.  Additionally, it makes it illegal to have sex with a woman while lying to her or making false promises.

Section 74: (1) A man committing any of the following acts—

• physical contact and advances involving unwelcome and explicit sexual overtures; or
• a demand or request for sexual favours; or
• showing pornography against the will of a woman; or
• Making sexually colored remarks, shall be guilty of the offence of sexual harassment.

Section 76: Assault or use of criminal force to woman with intent to disrobe.

Section 77: Voyeurism

Section 78: Stalking

Section 79: Word, gesture or act intended to insult modesty of woman.

CASE LAWS RELATED TO SEXUAL HARASSMENT

Vishaka vs. State of Rajasthan, (1997)[4]

According to the Supreme Court, sexual harassment at work does, in fact, violate the fundamental rights protected by Articles 14, 15, 19(1)(g), and 21 of the Indian Constitution.  The Vishaka Guidelines are a set of instructions that the Court offered in its ruling for employers and other accountable individuals or organizations to promptly guarantee the prevention of sexual harassment. Finally, in order to stop sexual harassment of female employees at work, the POSH Act, 2013 was passed into law.

Saikuttan O.N vs Kerala State Electricity Board Ltd and Ors (2020)[5]

The law pertaining to employee transfers is very clear and fixed, and the High Court made it very plain from the beginning that a change in work status constitutes an incident of service. So long as the transfer orders are not imposed unlawfully or maliciously, courts are not obligated to become involved. Thus, whether or not the petitioner’s action was appropriate was the only matter the High Court took into account.

Tuka Ram And Anr vs State of Maharashtra, (1979)[6]

In 1979, the criminal case Tuka Ram and Anr v. State of Maharashtra—also known as the Mathura case—was decided by the Supreme Court of India. The case was based on allegations that two police officers had sexually raped a young woman named Mathura in 1972 at a Maharashtra police station. The police officers were declared not guilty by the trial court due to Mathura’s willingness to have sex with them. The acquittal was maintained by the High Court after hearing an appeal by Mathura’s family. After an appeal, the case made its way to the Supreme Court, which ruled in Mathura’s favor and ordered the police officers to stand trial again.

Mukesh and Anr. Vs. state of NCT of Delhi and ors (2017)[7]

A juvenile and five adult men brutally and sexually attacked a 23-year-old trainee physiotherapist on a moving bus in Delhi on the evening of December 16, 2012. Her intestines were removed as a result of an iron rod attack. Later, she passed away. All defendants, excluding juveniles, were unanimously given the death penalty by the court. The boy found guilty of having a similar role in the incident and assaulting the woman sexually received a sentence of three years in a halfway house A panel led by JS Verma after the incident passed the Criminal Law (Amendment) Act, 2013, which amends the laws pertaining to sexual offenses, including the Indian Penal Code, 1860, the Code of Criminal Procedure, 1973, the Indian Evidence Act, 1872, and the Protection of Children from Sexual Offenses Act, 2012. Act created the death sentence for rapes in which the victim dies or is left in a vegetative state, and it also broadened the definition of rape. The Act also strengthens current laws by creating a number of new offenses.

CONCLUSION

In India, sexual harassment at work is very common. The government must to guarantee that legislation passed is carried out correctly. Governments and organizations should make sure that women are treated fairly and that discrimination based on gender does not exist. 7252 incidents of sexual harassment were reported to the National Crime Record Bureau (NCRB) in 2018. Nonetheless, it’s thought that a large number of sexual harassment incidents remain unreported because of a fear of reprisals or victimization. The Ministry of Women and Child Development initiated the “SHE-box” initiative in 2019 to give women a way to report instances of sexual harassment they have experienced at work. The app gives women the option to anonymously make complaints and offers a process for handling them.

REFERENCES

[1]. Team, U. B. (2023, February 20). Sexual Harassment at work: Understand the rules of the POSH Act in 6 minutes. Ungender | Empanelled by GoI. https://www.ungender.in/sexual-harassment-at-work-understand-the-rules-of-the-posh-act-in-6-minutes/

[2]. Whatishumanresource.com – Legal definitions of sexual Harassment. (n.d.). https://www.whatishumanresource.com/legal-definitions-of-Sexual-Harassment

[3]. Constitution of India. (2024b, January 16). IPC 354A – Sexual harassment and punishment for sexual harassment. Indian Constitution, IPC Section, Articles. https://indianconstitution.guru/ipc/ipc-354a/?_page=13

[4]. (Vishakha and Ors. vs State of Rajasthan and Ors., 1977) Rai, D. (2020, November 10). Case analysis :

Vishaka & Ors. v State of Rajasthan & Ors. ((1997) 6 SCC 241) – landmark case on sexual harassment – iPleaders.

 iPleaders. https://blog.ipleaders.in/case-analysis-vishaka-ors-v-state-of-rajasthan-ors-1997-6-scc-241-landmark

case-on-sexual-harassment/-1997-6-scc-241-landmark-case-on-sexual-harassment

 [5]. (Saikuttan.O.N vs Kerala State Electricity Board Ltd, 2020) Revolutionize Your Legal Experience with Lawyered.in. (n.d.). https://www.lawyered.in/legal-disrupt/articles/top-court-judgements-sexual-harassment-work-and-their-summary-2013-2022/

[6]. (Tuka Ram And Anr vs State Of Maharashtra, 1978) Ijalr. (2022, April 3). Tukaram & Anr. v. State of Maharashtra: Case analysis. Ijalr. https://ijalr.in/tukaram-anr-v-state-of-maharashtra -case-analysis/

[7]. (Mukesh & Anr vs State For Nct Of Delhi & Ors, 2017) Admin, & Admin. (2023b, August 5). MUKESH & ANR v. STATE (NCT OF DELHI) & ORS – Legal Vidhiya. Legal Vidhiya -. https://legalvidhiya.com/mukesh-anr-v-state-nct-of-delhi-ors/

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[1] Team, U. B. (2023, February 20). Sexual Harassment at work: Understand the rules of the POSH Act in 6 minutes. Ungender | Empanelled by GoI. https://www.ungender.in/sexual-harassment-at-work-understand-the-rules-of-the-posh-act-in-6-minutes/

[2] Whatishumanresource.com – Legal definitions of sexual Harassment. (n.d.). https://www.whatishumanresource.com/legal-definitions-of-Sexual-Harassment

[3] Constitution of India. (2024b, January 16). IPC 354A – Sexual harassment and punishment for sexual harassment. Indian Constitution, IPC Section, Articles. https://indianconstitution.guru/ipc/ipc-354a/?_page=13

[4] (Vishakha and Ors. vs State of Rajasthan and Ors., 1977) Rai, D. (2020, November 10). Case analysis : Vishaka & Ors. v State of Rajasthan & Ors. ((1997) 6 SCC 241) – landmark case on sexual harassment – iPleaders. iPleaders. https://blog.ipleaders.in/case-analysis-vishaka-ors-v-state-of-rajasthan-ors-1997-6-scc-241-landmark-case-on-sexual-harassment

[5] (Saikuttan.O.N vs Kerala State Electricity Board Ltd, 2020) Revolutionize Your Legal Experience with Lawyered.in. (n.d.). https://www.lawyered.in/legal-disrupt/articles/top-court-judgements-sexual-harassment-work-and-their-summary-2013-2022/

[6] (Tuka Ram And Anr vs State Of Maharashtra, 1978) Ijalr. (2022, April 3). Tukaram & Anr. v. State of Maharashtra: Case analysis. Ijalr. https://ijalr.in/tukaram-anr-v-state-of-maharashtra -case-analysis/

[7] (Mukesh & Anr vs State For Nct Of Delhi & Ors, 2017) Admin, & Admin. (2023b, August 5). MUKESH & ANR v. STATE (NCT OF DELHI) & ORS – Legal Vidhiya. Legal Vidhiya -. https://legalvidhiya.com/mukesh-anr-v-state-nct-of-delhi-ors/

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