Throughout history, women have endured various forms of discrimination, oppression, and atrocities. The division of society into 'public' and 'private' spheres has played a significant role in perpetuating this injustice. By confining women primarily to the private sphere and defining their roles within it, society has contradicted the values enshrined in the Constitution.
The Convention on the Elimination of All Forms of Discrimination against Women of 1981 (hereinafter referred to as ‘CEDAW’) and General Recommendation No. 19 paved the way to ensuring equality in employment. Along with this, CEDAW recognised sexual harassment as an impediment to ensure the equality of employment and further defined sexual harassment in the workplace. Since both India and Bangladesh are dualist countries, passing of domestic laws after ratification would be pertinent to give effect to the provisions of CEDAW.
The total woman labour force participation in India is around only 25% of the total labour force (rural and urban) employment (2021).[1] In Bangladesh, the percentage of participation of women in the labour force was 30.4% in 2021.[2] One of the major factors for such a low percentage of involvement of women employees is the existence of sexual harassment in the workplace.
Laws revolving around Sexual Harassment at Workplace
● India
In India, the first ever development of the anti-sexual harassment law aimed specifically at workplace was in the form of guidelines laid down by the Supreme Court in Vishaka & Ors. v. The State of Rajasthan (1997). With these guidelines, the Court emphasised on the duty of the employer to provide a safe working environment, especially to women. Along with this, the Supreme Court defined sexual harassment and introduced the concept of ‘unwelcome behaviour’ in line with the provisions of CEDAW. The Court also emphasised upon the necessity of passing a legislation to prohibit, prevent and redress sexual harassment of women in workplaces.
Following this, there were numerous case laws including Medha Kotwal Lele & Ors. v. Union of India & Ors. (2012) where the Supreme Court had time and again stressed upon the need of a domestic legislation specifically targeted at sexual harassment of women at workplace.
This led to the enactment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 in line with the Vishaka guidelines and provisions of CEDAW. Sexual harassment is defined as a crime under the Indian Penal Code (hereinafter referred to as ‘IPC’) through the Criminal Law Amendment Act, 2013 but there is no specific mention of sexual harassment at workplace. The provision under IPC talks about sexual harassment and sexual abuse only in public spaces.
The most important ingredient under the definition of sexual harassment under the Indian law is ‘unwelcome behaviour or conduct’ that is sexually coloured including favours and remarks and may either be physical, verbal, or non-verbal. More than the intention, how the act is perceived is important. Sexual harassment under Indian law is subjective and intent is not an essential ingredient.
● Bangladesh
In Bangladesh, none of the domestic laws specifically mention or define ‘sexual harassment’ as a crime. Under the Penal Code of Bangladesh, provisions for assault and use of criminal force and words or gestures intended towards outraging the modesty of a woman exist under sections 354 and 509 respectively. However, all the laws revolve around ‘outraging the modesty of a woman’, thereby making intention an essential ingredient.
It must be noted that the judiciary of Bangladesh has made references to sexual harassment and has given a comprehensive definition of sexual harassment including hostile working environment and quid pro quo sexual harassment.
In Bangladesh National Women Lawyers Association v. Government of Bangladesh & Ors. (2009) alongside the definition, the court also specified the duty of an employer and concerned authorities in educational institutions to prevent and effectively prosecute incidents of sexual harassment. These are more commonly known as the 2009 guidelines that had a primary objective of creating awareness about sexual harassment as a punishable crime and about the consequences of sexual oppression.
In BNWLA v. Government of Bangladesh & Ors. (2011) or the 2011 guidelines, the courts urged the public authorities to take steps to prevent sexual harassment in public spaces. Moreover, the judgment required the government to add ‘sexual harassment’ to the Women and Child Repression Prevention Act, 2000. However, no such step has been taken and there exists no specific law to address sexual harassment in workplaces in Bangladesh.
The National Human Rights Commission of Bangladesh prepared and submitted a draft Anti-Sexual Harassment Law but till date no action has been taken to convert the draft into an enforceable law.[3]
Extent of protection provided against sexual harassment under Labour Laws
● India
Under the Industrial Employment (Standing Orders) Act and the Industrial Employment (Standing Orders) Central Rules, 1946, sexual harassment has been defined in line with the Vishaka guidelines and protection against the same has been provided to the employees. It is interesting to note that under rule 14(3)(1), protection provided is NOT limited to only women employees.
● Bangladesh
Earlier, under the Bangladesh Labour Act, 2006, provision only for protection of modesty of female workers had been provided under section 332. However, no direct mention of sexual harassment was found within labour laws of Bangladesh.
With the recent amendment to the Labour Rules, 2015, a new insertion has been made as Rule 361 KA. This rule provides a definition of what constitutes sexual harassment in a workplace. The main ingredient as per the rule is any unwanted behaviour and includes all physical, verbal, and non-verbal conducts, and quid pro quo harassment. The definition includes indecent gestures, teasing with abusive language, stalking, and joking with sexual overtones, insult through letters, SMS, email, social media, phone calls, or even through drawings.[4]
The definition of sexual harassment under Rule 361 KA also includes practicing exclusion from activities based on sexuality or for the purposes of sexual harassment, pressuring or threatening someone for a love proposal, or employing intimidation, deception, or false assurances to establish a sexual relationship. Sub-rule (2) mandates the setting up of a Complaints Committee within every workplace. This Committee should be led by a woman and the majority of the members should also be women.[5] Sub-rule (3) mandates all organisations to develop its own guidelines to prevent and redress sexual harassment at workplace. These guidelines must be circulated to all employees. The organisation must also put a complaint box in a visible place within the workplace.[6]
Conclusion
Sexual harassment being a universal problem demands strict domestic laws with effective implementation. In terms of a domestic law specifically addressing sexual harassment in workplace in all organisations, Bangladesh is yet to enact one. The Bangladesh Labour Act is only applicable to private organised sectors.[7] [8] The government workplaces, and unorganised sector among others have no protection available in the workplace against sexual harassment. In terms of implementation, a milestone is yet to be achieved by India. Though the law has been passed, its effectiveness is yet to be realised fully.
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