It has been quite a time that we have been dealing with this deadly pandemic, which has immured us into the four walls of our homes. Now that we have accepted that, this virus is here to stay for a little longer than we had expected. We have been trying to acclimatize to the new culture that has been fostered by this forced confinement. The new-work from home culture that was prevailing limitedly in the IT sector has currently sprawled to almost each and every hemisphere of our lives. From education to justice everything has sensed this change. With this totally new culture come new difficulties requiring oriented solutions. Although, the government with the barrage of its efforts has tried to mitigate most of the consequences, one such issue remains to be redressed.
To date, India bags the top ten ranks for being an unsafe country for women. Crimes like sexual harassment, voyeurism, lewd texts etc., had already been prevalent preceding the pandemic. Although there has been a spate of legislations to tackle the appalling scenario but provisions have only proved good on paper. With the snowballing harassment cases and a set of these futile legislations India still remains a scary place for women be it on streets, their homes or workplaces.
To deal with this rising number of harassment cases at workplaces, Indian Parliament on 22 April 2013 enacted THE SEXUAL HARASSMENT OF WOMEN AT WORKPLACE (PREVENTION, PROHIBITION AND REDRESSAL) ACT, 2013. The legislation was enacted in furtherance of the basic rights of the women and to provide them dignity at the places of their work. Section 2(o) provides a wide-ranging definition to the term ‘Workplace’. It covers almost every aspect of the workplace. Interestingly, with the new work from home culture, sexual offenders have also adapted to new means of harassment. Mostly, at the present time all the work including business meetings, presentations etc. is done over the internet. Prevailing software’s like zoom, hangouts, cisco WebEx and many more provide an attendee to attend the meetings without basic credentials. This leads to a free ground for these offenders to act with anonymity.
Currently, many instances pertaining to lewd remarks, playing pornographic content etc. during such e-meets have been canvassed. Therefore it has become paramount to understand whether a woman can seek redressal under this sprawling Act of 2013.
Although Vishaka guidelines did not explicitly provide the inclusion of cyber spaces under workspace, it first recognized that sexual harassment shall not be confined to physical spaces of work. However, the Supreme Court after the Vishaka Guidelines in the landmark case of Saurabh Kumar Mallick vs. CAG the Court specifically made a reference to such scenarios and clarified that a broader interpretation was imminent to cover such scenarios.
Further section 2(o)(v) of the 2013 Act provides:
“any place visited by the employee arising out of or during the course of employment including transportation by the employer for undertaking such journey”
It is axiomatic from the bare reading of this provision that the definition is broad and does not restrict itself to the physical environment of the workspace. It becomes conspicuous that the online platforms being used in the present times by women for work purposes is to be included under the masthead of the workplace provided by the aforementioned provision.
Redressal under the 2013 Act:
Internal Complaints Committee
As suggested by the Vishaka guidelines, Section 4 of the Act provides for the constitution of Internal complaints committee. As per this provision every employer is mandated to constitute a committee at all administrative units or offices. The internal committee shall comprise of a presiding officer who shall be a senior level women employee. At Least two members of the Committee are expected to have legal knowledge; one of the members should have some experience of working in the NGO contributing for the cause of women. The presiding officer cannot hold office for a period exceeding three years.
The committee is vested with the powers of a civil court under the Code of Civil Procedure, 1908 for the purpose of conducting an inquiry and has the power give directions to summon an individual, production of documents. The inquiry is to be completed within 90 days. After the completion of the inquiry the committee is required to submit an inquiry report to the employer.
The act bind the employers to provide a safe working environment to women by fulfilling the mandate of committees provided under the Act and spreading the required awareness about the punitive provisions of the Act.
IPC: Section 354C provides for voyeurism which means that if a man watches, captures the image or observes a woman in a private act where she does not expect to be observed then he will be liable for the act of Voyeurism. This provision was inserted based on the suggestions of the Justice J.S. Verma Committee, constituted in the aftermath of the December 2012 Nirbhaya rape incident. The Committee also pointed out that although offences like stalking, voyeurism, ‘eve-teasing’, etc., are perceived as ‘minor’ offences but still they are capable to deprive a girl of their freedom of expression and movement.
As per the suggestions of the Committee following are the ingredients of voyeurism, i) if a person either watches or captures the image; ii) of a woman engaging in a private act; iii) in circumstances where she would usually have the expectation of either not being observed by the perpetrator or not being observed by any other person at the behest of the perpetrator.”
So, if a person takes screenshots from the meeting platforms such as the google meet, zoom or any other virtual platform without the consent of the woman then as per the ingredients of the above mentioned section he will be made liable for voyeurism.
Further, section 66E of the Information and Technology Act, 2000 talks about the same.
Section 354D provides for stalking. Stalking refers to the act where a man “follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman”. During this pandemic there are many complaints made by the female employees that they are being called at odd hours repeatedly, although all this seems to be minor acts but still they hamper the female’s dignity.
Although, we have penal provisions to put a deterrent effect on the activities harming women’s dignity still on the practical implementation they turn out to be futile. In India there has been a lot of debate on the inefficiency to control cyber crimes and seeing the need for adopting the virtual platforms as new method of carrying out activities it is essential to enforce these provisions in an efficient way to protect the constitutional rights of the women in India such as right to dignity, movement, profession and education.
There have been cases where female teachers have been victims to harassment during online teaching, vulgar comments were passed by people attending online lectures by making fake Ids on various virtual meeting platforms. Virtual platforms provide a cloak of anonymity to individuals which is often misused as the same is a privilege which often entails no consequences whatsoever.
Work from home is set to become the new norm for individuals and companies as even though the pandemic might have a temporary stay but with all the technological advancements, to work from home would eventually become more feasible. This would entail with itself the need for the sensitization of individuals regarding their demeanor and appearance when interacting with their colleagues via a virtual platform or in a meeting and to be made aware that working from your living room is no different than working in your cubicle.
Preferred Citation: Goswami, S., ” COVID-19 and Sexual Harassment on Virtual Workspace”, The Law Culture (2020)