Sexual harassment at workplace

Sexual harassment at workplace is a violation of right to equality under Articles 14 and 15 and the violation of right to life and liberty under Article 21 and the right to practice any profession or to carry on any business, trade or occupation. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, aims at providing protection against sexual harassment of women at workplace and for the prevention and redressal of complaints of sexual harassment.

Section 2(n) describes sexual harassment to include any one or more of the following unwelcome

acts or behaviour (whether directly or by implication) namely:-
(i) physical contact and advances; or
(ii) a demand or request for sexual favours; or
(iii) making sexually coloured remarks; or
(iv) showing pornography; or
(v) any other unwelcome physical, verbal or non-verbal conduct ofsexual nature.
Section 2(o) describes a workplace to include (i) any department, organisation, undertaking, establishment, enterprise, institution, otlicc, branch or unit which is established, owned, controlled or wholly or substantially by funds provided directly or indirectly by the Government or the local authority or a Government company or a corporation or a co-operative society;

·(ii) any private sector organisation or a private venture, undertaking, enterprise, institution, establishment, society, trust, non-governmental organisation, unit or service provider carrying on commercial, professional, vocational, educational, entertainmental, industrial, health services or financial activities including production, supply, sale, distribution or service;
(iii) hospitals or nursing homes;
(iv) any sports institute, stadium, sports complex or competition or games venue. whether residential or not used for training, sports or other activities relating thereto:
(v) any visited by the employee arising out of or during the course of employment including transportation provided hy the employer for undertaking such journey:

(vi) a dwelling place or a house.
Section 3 provides that no woman shall be subjected to sexual harassment. Sexual harassment includes any explicit or implied promise of preferential treatment in her employment or any express or implied threat of detrimental treatment in her employment or her present or future employment status, interference with her work or humiliating treatment likely to affect her health or safety.
Every employer is required to constitute by writing an internal complaints committee, with half of its members being women. Section 10 provides that upon receiving a complaint, the Internal Committee may initiate an enquiry and at the request of the aggrieved woman, take steps to settle the matter between her and the respondent through conciliation, provided no monetary settlement shall be made as a result of such conciliation.
Section 12 provides that during the pendency of the enquiry, the Internal Committee or the Local Committee may recommend to transfer the aggrieved woman or the respondent to another location or to grant the aggrieved woman leave upto three months or any other leave that may be prescribed. The leave granted to the aggrieved woman shall be in addition to any other leave that she may otherwise be granted. Section 13 provides that on the completion of the enquiry, the Internal Committee or the Local Committee shall submit its report to the employer or the District Officer with ten days of the completion of the enquiry and recommend to take action for sexual harassment as misconduct, deduct salary or wages of the respondent as it considers appropriate for payment to the woman or her legal heirs within sixty days of receipt of recommendations. Section 15 provides that for the purpose of determining the sum to be paid, the internal committee or the local committee shall have to regard the mental trauma, pain, suffering or distress caused to the aggrieved woman, the loss of career opportunities due to the instance of sexual harassment, mental expenses incurred for physical or psychiatric treatment, income and financial status of the respondent and the feasibility of payment in lump sum or in instalments.
Section 19 provides that it is the duty of the employer to provide safe workplace for women, to display at conspicuous place in workplace the penal provisions for sexual harassment, organise workshops and awareness programmes at regular intervals, provide necessary facilities to the internal committee or local committee for dealing with the complaint and conducting an enquiry, assist in securing the attendance of the respondent and witnesses before the internal committee or local committee, provide assistance to the woman if she decides to file a complaint unde the Indian Penal Code, treat sexual harassment as misconduct and monitor the timely submission of reports by the internal committee.

Domestic violence

The Protection of Women from Domestic Violence Act, 2005 aims to provide remedy to a woman who in a domestic relationship suffers physical or mental abuse or harassment. Section 3 of the Act defines domestic violence as an act, omission or commission or conduct of the respondent in case it harms, injures endangers the health, safety, life, limb or well-being whether mental or physical of the aggrieved person and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse, or harass, harm, injure or endanger the aggrieved party to coerce her or any other person related to her to meet un lawful demands for dowry or transfer of property or valuable assets, or has the affect of threatening the aggrieved person or anyone related to her or otherwise injures or causes harm to the aggrieved person whether physical or mental.
Section 17 provides that a woman has a right to reside in a shared household and shall not evicted or removed from the shared household or any portion of it by the respondent. Section 18 provides that if the Magistrate is satisfied that an act of domestic violence has taken place or is likely to take place, he may pass an order prohibiting the respondent from committing domestic violence, or aiding or abating the commission of domestic violence or entering the place of employment of the aggrieved person or attempting to communicate with the aggrieved person in any form, or alienating any assets of the aggrieved person, or harming any dependents of the aggrieved person or causing any other acts specified in the protection order.
Section 19 provides that when the Magistrate is satisfied that the act of domestic violence has taken place, he may pass an order restraining the respondent from dispossessing the aggrieved person from the shared household or to remove himself from the shared household or to restrain the respondent or his relatives from entering any portion of the shared household or directing the respondent to provide an alternative residence of the same level to the aggrieved party.  Section 20 provides that while disposing off an application, the Magistrate may direct the respondent to pay monetary relief which may include but is not limited to the loss of earnings, the medical expenses, the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved party and the maintenance of the aggrieved person and her children. The monetary relief should be fair, reasonable and adequate and consistent with the standard of living of the aggrieved person.

The Dowry Prohibition Act, 1961

Dowry is a social evil leading to the harassment and deaths of a large of women across the country. The Dowry Prohibition Act, 1961, was enacted with the purpose of controlling the giving or taking of dowry at the time of marriage. Section 2 of the Act defines dowry as any property or valuable security given or agreed to be given by one party to the marriage to the other or the parents of one party or any other person to the other party before or at the time of the marriage in connection of the marriage of the said parties but does not include the mahr or dower in case of person to whom the Muslim Personal law applies.
Section 3 provides that any person who gives or takes dowry or abets the giving or taking of dowry will be punished with imprisonment for a term not less than five years and with fine which shall not be less than fifteen thousand rupees or the amount of dowry whichever is more. Section 4 provides that whoever demands dowry from the parents of the bride or bridegroom either directly or directly will be punished with imprisonment for a term which shall not be less than six months but can extend upto two years and with fine which may extend to ten thousand rupees. Section 4 A bans advertisement for dowry and any person who advertises or prints or publishes or circulates any offer of share in property or money or share in business as a consideration for marriage shall be punished with imprisonment for a term not less than six months which may extend upto five years or with fine which may extend upto fifteen thousand rupees.
Section 5 provides that an agreement to give or take dowry is void. Section 6 provides that whoever receives dowry in connection to a marriage shall transfer the same to the wife, if received before marriage, within three months of the marriage, if received at the time or after the marriage, within three months of the receipt or ion received in connection of marriage of a minor, then within three months of the wife attaining majority. If the woman dies before receiving the property, it shall be transferred to her heirs, if she has no children, then to her parents, if she has children then to those children.
Despite the law to curb the evil of dowry, it has not been effective in actually curbing the evil practice and the instances of harassment or murder of young women over dowry has not subsided. Along with the law on dowry prohibition, the need for a social awakening to curb the evil practice is required.

The Commission of Sati (Prevention) Act

The incident of the Roop Kanwar Sati in 1987 prompted the Central government to legislate upon the issue of the commission and glorification of the practice of sati. Though the case made headlines, all the accused were released in 2004.
The Commission of Sati (Prevention) Act, 1987 makes the commission, abetment and glorification of sati as cognizable offences. Section 2 (c) of the Act defines 'sati' as the burning or burying alive of any widow along with the body of her deceased husband or any other relative or with any article, object or thing associated with the husband or such relative; or any woman along with the body of any of her relatives, irrespective of whether such burning or burying is claimed to be voluntary on the part of the widow or the women or other-wise.
Section 2 (b) describes the glorification of sati as:
(i) the observance of any ceremony or the taking out of a procession in connection with the commission of sati; or
(ii) the supporting, justifying or propagating the practice of sati in any manner; or
(iii) the arranging of any function to eulogise the person who has committed sati; or
(iv) the creation of a trust, or the collection of funds, or the construction of temple or other structure or the carrying on of any form of worship or the performance of any ceremony thereat, with a view to perpetuate the honour of, or to preserve the memory of, a person who has committed sati.
Section 3 punishes the attempt to commit sati with imprisonment with a term which may extend upto one year or with fine or with both.
Section 4 lays down the punishment for the abetting the practice of sati. Section 4(1) Notwithstanding anything contained in the Indian Penal Code (45 of 1860) , if any person commits sati, whoever abets the commission of such sati, either directly or indirectly, shall be punishable with death or imprisonment for life and shall also be liable to fine.
Section 4(2) If any person attempts to commit sati, whoever abets such attempt, either directly or indirectly, shall be punishable with imprisonment for life and shall also be liable to fine.
The act of abetment Inducing a woman to commit sati or making her believe that committing sati would give her spiritual benefits or encouraging a widow to remain fixed on her resolve to commit sati or participating in any procession in the connection to sati or being present at the place where sati was being committed as an active participant or preventing or obstructing a woman from saving herself from being burnt or buried alive or obstructing or preventing the police from its duty to prevent the commission of sati.
Walking behind a widow chanting slogans has been considered to be abetment of the commission of sati.
Section 5 lays down the punishment for glorification of sati and provides that whoever does any act for the glorification of sati shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to seven years and with fine which shall not be less than five thousand rupees but which may extend to thirty thousand rupees.
Section 123 (3B) of the Representation of the People's Act, 1951 makes the propagation of the practice or the commission of sati or its glorification by a candidate or his agent or any person with the consent of a candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate a corrupt practice.
Section 7 provides that the State Government may, if it is satisfied that in that any temple or other structure which has been in existence for not less than twenty years, any form of worship or the performance of any ceremony is carried on with a view to perpetuate the honour of or to preserve the memory of, any person in respect of whom sati, has been committed, by order, direct the removal of such temple or other structure.
The Commission of Sati (Prevention) Act aims at providing for a more effective way of preventing the commission of sati and its glorification. The practice of the commission of sati is a heinous act and is of revolting nature. Any action to propagate it or glorify such instances is also revolting in nature and needs to be dealt with harsh punishment.

Pornography over cyber space

The right to free speech is a fundamental right given to every citizen of India but subjected to certain reasonable restrictions. Article 19 (2) lays down eight such restrictions which curtail the freedom of speech and expression, there include restrictions in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.
The freedom of speech over the internet is governed by the same restrictions as the right of speech protected under Article 19(1)(a) is subjected to along with a few more under the Information Technology Act,2000. Spreading of pornographic material over the internet is subjected to the restrictions imposed on the ground of obscenity and are also specific offences under the provisions of the Information Technology Act.
Section 67 of the Act lays down the punishment for publishing or transmitting sexually explicit material. The section states that:Whoever publishes or transmits or causes to be published or transmitted in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either description for a term which may extend to three years and with fine which may extend to five lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to five years and also with fine which may extend to ten lakh rupees.
Whoever publishes or transmits or causes to be published or transmitted in the electronic form any material which contains sexually explicit act or conduct shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to ten lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees.

 Section 67 A provides that: Whoever publishes or transmits or causes to be published or transmitted in the electronic form any material which contains sexually explicit act or conduct shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to ten lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees.

Section 67 B deals specifically with child pornography. It states Whoever,–

(a) publishes or transmits or causes to be published or transmitted material in any electronic form which depicts children engaged in sexually explicit act or conduct; or
(b) creates text or digital images, collects, seeks, browses, downloads, advertises, promotes, exchanges or distributes material in any electronic form depicting children in obscene or indecent or sexually explicit manner; or
(c) cultivates, entices or induces children to online relationship with one or more children for and on sexually explicit act or in a manner that may offend a reasonable adult on the computer resource; or
(d) facilitates abusing children online, or

(e) records in any electronic form own abuse or that of others pertaining to sexually explicit act with children,
shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to ten lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees:
Provided that provisions of section 67, section 67A and this section does not extend to any book, pamphlet, paper, writing, drawing, painting representation or figure in electronic form–
(i) the publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper, writing, drawing, painting representation or figure is the interest of science, literature, art or learning or other objects of general concern; or

(ii) which is kept or used for bona fide heritage or religious purposes.
Under the provisions of Section 67 B, inducing or coercing children into online relationship or sharing material containing such texts, I'm ages or videos would amount to an offence. Sharing online videos depicting children in sexually explicit manner on WhatsApp or other electronic platforms would comprise of an offence under the section.

Freedom of press and defamation

The Supreme Court has recently observed that the every instance of wrong reporting by the journalists does not amount to defamation. The Court observed that there is no vicarious liability of the heads of a news channel for the wrong publication of a news items by their associates. The Court agreed with the Patna High Court which held that there is no statutory provision for the vicarious liability for the act committed by the associates.
The press is responsible for the correct publication of facts. Its reporting needs to be accurate and diligent. Defamation is both a crime as well as a tort. While a statement off fact is a defence under Section 499 of the IPC, a wrongful report which injures a person's reputation remains both a crime as well as a civil wrong. While the freedom of press is important as it remains the fourth pillar of democracy, it does call out for responsible reporting.

National anthem

The Supreme Court has ruled that its previous order of making the playing the national anthem in cinema halls mandatory before the screening of films should be taken as directory and not compulsory in nature. The Court observed that it did not expect that the said direction to instil patriotism would lead to vigilantes and that would force aged and even disabled to be forced to stand up during the playing of the national anthem and subsequent violence.
The Apex Court observed that the term 'shall' in its previous order should be interpreted as may' and the cinema halls are only directed to play the national anthem but if there choose to play it, then people are required to show respect to it by standing up. However, disabled people cannot be forced to stand during the playing of the national anthem as observed by the order dated April 18, 2017. The central government had suggested to the Court to either pass an order for status quo restoring the position as existed prior to November 30, 2016 or the term 'shall' be replaced by 'may', until the issue is finally decided.

Article 51 A of the Constitution of India deals wth the fundamental duties. Clause (a) states that 'It shall be the duty of every citizen of India (a) to abide by the Constitution and respect its ideals and institutions, the national Flag and the National Anthem'.

Every citizen is required to show respect to the national insignia but that does not mean that it leads to violence in the name of nationalism and patriotism. Section 3 of the Prevention of Insults to National Honour Act, 1971, provides that: Whoever intentionally prevents the singing of the Indian National Anthem or causes disturbances to any assembly engaged in such singing shall be punished with imprisonment for a term, which may extend to three years, or with fine, or with both. The Act does not define what amounts to disrespect of the national anthem. 

The bench remarked that all citizens of India and all persons representing India are duty bound to show utmost respect to the national anthem.