Legal Liability for Sexual Harassment in the Workplace: India
| Author | Ramni Taneja |
| DOI | 10.1177/135822910500700411 |
| Published date | 01 September 2005 |
| Date | 01 September 2005 |
International
Journal
of
Discrimination
and
the
Lall',
2005,
Vol.
7,
pp.
293-314
1358-2291/2005
$10
©
2005
A B Academic Publishers. Printed
in
Great Britain
LEGAL
LIABILITY
FOR
SEXUAL
HARASSMENT
IN
THE
WORKPLACE:
INDIA
RAMNI
TANEJA*
Little and Co., New Delhi, India
ABSTRACT
This article discusses the development
of
sexual harassment law
in
a State where
most men are steeped
in
male-supremacist values but remain unaware
of
their
biases. This development has been almost entirely through case law based on the
Indian Constitution interpreted in the light
of
India's international human rights
obligations. However, the Indian Penal Code has also been significant in this
development, on the one hand expanding the application
of
sexual harassment
laws beyond the workplace to all public places, while on the other hand acting
as
a brake on the
level
of
damages that might be awarded. While India now has
the beginning
of
a legal mechanism which can redress sexual harassment, there
still needs to
be
a radical transformation
in
the way women are treated before
equality and dignity for all can be translated into a meaningful reality.
INTRODUCTION
In
an
incisive article
appearing
in
The Sunday Times
of
India1 a lead-
ing
Indian
columnist,
Praful
Bidwai,
has
described the
position
of
Indian
women
in
the
following terms:
"Discrimination
against
women
starts
in the foetus, proceeds
through
systematic
undernourishment
in
childhood
and
deprivation
of
educa-
tion
in adolescence,
and
ends in domestic violence
and
bride burning.
The
degree
of
discrimination
bears
no
relationship with
economic
prosperity:
Punjab
and
Haryana
have shamefully low sex ratios,
under
900 [women]
per
1000 [men].
Growing
literacy in
Kerala
is
not
accompanied
by
reduced violence
against
women.
Gender
discri-
mination
and
appalling
health
indicators
among
young
mothers
are
resulting in
almost
half
our
children growing
up
as
half-cretins. Ulti-
mately,
our
entire society
must
remain
wretched
if
women
suffer.
...
Sexual
harassment
remains widespread in farms
and
factories,
and
our
criminal
courts
blithely acquit
upper
caste gang-rapists
on
the
ground
that
they could
not
have molested a 48-year-old low caste
victim-
this
when two
men
recently
raped
an
80-year-old
....
The
relevance
of
the
idea
of
women's
equality
with
men
remains largely
marginal
to
our
social life.
Most
men
are
still steeped in male-supremacist values,
294
but
unaware
of
their biases. They are utterly insensitive to women's
sense
of
self,
and
reluctant to view them as anything other
than
objects
of
consumption, bearers
of
embryos, rearers
of
children
and
guardians
of
home
and
hearth."
Statistics
in
India
constantly
refer
to
the
50
million
missing
girls.
An
editorial
in
The Times
of
India2
sadly
records
the
following
grim
facts:
"Discrimination against women from cradle to grave has become so
much a
part
of
the social fabric
that
the frightening figures published
each year documenting the missing 40
to
50
million girls who would be
expected to be alive has ceased to shock
....
"
In
a
paper
entitled
Women Workers
and
Protective Labour
Legislations
in
India: A Critical Appraisa/,3
the
writer,
L.
C.
Dhingra,
has
analysed
certain
aspects
concerning
working
women
in
India.
According
to
Dhingra,
"Despite all the constitutional provisions, women are still being har-
assed, exploited
and
discriminated in one way
or
the
other
in almost
all walks
of
life.
Though
legislative measures have been taken from
time to time with a view to provide equal rights to women, to raise
their status
and
to provide adequate legal protection to them,
but
even then all these efforts have
not
produced the desired results
either due
to
some lacunae in the legislative provisions
or
due to
some deficiency in the enforcement machinery
....
According to [the]
1981
census, 20.4%
of
[the] total population
of
women are engaged
in some form
of
economic activity. As much as 73.91 percent
of
these employed women are working in agriculture
and
out
of
this 46
percent are employed as labourers
and
28
percent as cultivators.
Women employed in central
and
state administrative services
and
public sector undertakings constitute only
12
percent
of
the employed
women
....
About
94 percent
of
the working women [in India] are in
[the] unorganised sector who are victims
of
unemployment as well
as under-employment. They are being exploited due to limited
job
opportunities, illiteracy, deficient training, restricted mobility, etc."
Dhingra
states
that
this
is
mainly
due
to
the
protection
provided
to
women
workers
under
various
labour
legislations
and
therefore
employers
prefer
male
workers
in
comparison
to
women
workers
because
of
economic
considerations.
Against
the
above
background,
it
would
hardly
be
surprising
that
sexual
harassment
is
widely
prevalent
in
India.
However,
the
process
concerning
the
crystallisation
in
legal
terms
of
the
concept
'sexual
harassment
in
the
workplace'
is
relatively
new,
inasmuch
as
a
very
significant
judgment
of
the
Supreme
Court
of
India,
Vishaka
and
others
v.
State
of
Rajasthan
and
others4
['Vishaka']
(which,
in
effect,
has
laid
down
the
propositions
of
law
in
this
context),
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