LAWS AGAINST SEXUAL HARASSMENT AT WORKPLACE IN INDIA AND THE ILO CONVENTION: AN ANALYSIS
This article has been authored by Anna Mary Mathew, a third-year student at Tamil Nadu National Law University.
India, a developing economy of the world is apprehended to be the 5th largest economy by 2025 but according to the survey conducted by Thomson Reuters Foundation In 2018, India is considered as the world's most dangerous country for women. Which proves the common misconception that, with development women’s stance in he society will improve is wrong.
The EEOC has defined sexual harassment in its guidelines as “unwelcomed sexual advances, requests for sexual favours, and other verbal or physical conduct of a sexual nature.” The very nature of sexual harassment is unlawful, this has been proclaimed by states and institutions inmultiple scenarios. Even though these proclamations of protection against sexual harassment is made in paper it is never put into practice.
The patriarchal and casteist nature of the society are the factors that aggravate these acts of sexual harassment, this nature of the society can be demonstrated in no other better place
than the “workplace”. In fact, it is so intrinsically interlinked that if we can change the
prejudicial nature of the workplace then we can redefine the society as a whole.
Sexual harassment at workplace laws in India
In India the laws for sexual harassment at workplace evolved through the case of Vishaka vs State of Rajasthan, through this case the Supreme Court had laid down certain guidelines known as the Vishakha guidelines. These guidelines laid the foundation for the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act). The main intention behind the creation of these guidelines were to provide a mechanism by which women can raise their grievance. Supreme Court has stated that every woman just like any man has the right to equality(Article 14), the right to life(Article 21) and the right to have a safe work space, any hinderance caused to this is a gross violation of their basic and fundamental rights.
The Vishaka guidelines came in the nick of time to provide laws to prevent sexual harassment at workplaces in India. Subsequently, after this the POSH Act was introduced this brings us to the question of the hour “are these laws enough?”
In a survey conducted by the network of women in media India gender at work it was found that over one third of the respondents had experienced some form of sexual harassment at the workplace and over half of them did not even report it. This is how despicable sexual harassment at workplace has become in India. Why does this happen? and why are women reluctant to raise these cases of harassment faced by them? In 2001 a survey was conducted in the United States to understand why women do not report sexual harassment the reason they state is that: (1) speculation of adverse consequences (2) the enquiry process might not be validly conducted, (3) fear of embarrassment. These reasons projected by the survey is not just limited to the United States alone, these are also global reasons why the cases of sexual harassment is not reported.
Another fundamental reason that women abstain from reporting the sexual harassment cases is because the fingers are always pointed at the women. They are also at the risk of losing their jobs if they report the cases. This shows us the horrifying condition of women in India even after the introduction of the POSH Act to ensure their welfare. There are even companies that don't even have internal committee to address civil redressal matters to ensure that life of women is safeguarded. From this it is very visible that the POSH Act alone does not make any difference to the workplace hostility faced by women.
The UN steps to reduce sexual harassment in workplace
It was a known fact for us that the POSH Act did not sufficiently meet the gap of sexual harassment at workplace. The law was just merely in paper, women who were tired of the constant harassment they were facing resorted to a movement known as the #metoo movement which showed us the intensity and the aggravated nature of sexual harassment that was faced by women. This movement that started in October 2017 by an actress who propounded the story of sexual assault spread across the world from woman of all platforms speaking about their survivor stories.
Recognising this diabolical condition of women and through the understanding of the failure of current laws relating to sexual harassment in general and sexual harassment at workplace in specific, the UN in 2019 adopted the violence and harassment convention (number 190) and the recommendation (number 206). Even though India is a founding member of ILO and a permanent member of the governing body since 1922, it has not ratified this convention to prevent sexual harassment against women.
Convention 190 has created a ground-breaking revolution in terms of sexual harassment at workplace because this is the first international treaty to address harassment at workplace. The peculiar fact about this convention is that it addresses both violence & harassment and gender based violence & harassment. Violence & harassment refers to an individual in general and gender based violence & harassment occurs when certain individuals do not fall into the conventional category of gender assigned by the society faces harassment. The part of the convention that should be highlighted is its broad definition of the term worker, it speaks about all categories of workers irrespective of their contractual terms.
Why hasn’t India ratified the convention 190
Before moving onto the reasoning about why India has not ratified this convention, the fundamentals of any convention has to be looked into. Every state party has to see if the conventions can be incorporated in the national laws before ratifying it, in the sense they have to first check the stands of the national law. Upon ratification if it is already present in the national law then complying with convention is easy but if it is not there then through the ratification state parties have agreed to commit themselves to fully following the convention. Therefore, they have to amend their national laws so as to incorporate it and they have to report its application at regular intervals to the UN.
However, in contrary to that the recommendations don't have to be necessarily complied by the state party they have the discretion to either follow it or not follow it. These recommendations are merely guidelines to project out the fundamentals of the convention, in a way it lays down the standards of the guidelines of the convention.
This in short means that if the convention is ratified it creates an international application on India to follow the convention and India will only ratify convention when it is fully aware that the domestic laws are in conformity with the convention. This might be a reason why India has not ratified the convention till now.
Should India ratify the convention?
Ratifying a convention as mentioned earlier would mean that all the standards laid down in this convention should be followed by India and there would be a regular check on the application of this convention and as this convention includes all genders it would ensure that full protection will be given to any individual from harassment. As we all know sexual harassment is physically and psychologically harmful as it can lead to a hostile working environment. It should also be very clear that no form of sexual harassment should be tolerated anywhere therefore it is required that stringent laws should be present to protect the vulnerable part of the society. I am personally of the opinion that India should ratify and change the domestic laws according to the requirement of the convention.
A general question that can arise is what is achieved by convention 190 when we already have enacted the sexual harassment at workplace laws. From the information that we have gathered it is very evident that sexual harassment at workplace is merely restricted to paper and therefore there is an urgent requirement of revamping these laws. We also have to be cautious about the fact that the POSH act covers only harassments relating to women in a workplace and we have to be mindful of the fact that harassment is not just restricted to women and it can affect all individuals. Therefore there is a necessity to ratify this convention and meet the gaps the POSH Act could not suffice. India needs to adopt a more stringent approach towards the prevention of sexual harassment in workplace and as a workplace is a depiction of the general mindset of the society achieving this would create fundamental change in the ideologies of individuals.